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Rajasthan High Court - Jodhpur

Surender Alias Sendhiya vs State Of Rajasthan (2026:Rj-Jd:968) on 8 January, 2026

Author: Farjand Ali

Bench: Farjand Ali

[2026:RJ-JD:968]

       HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                        JODHPUR
 S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
                                  No. 817/2025

Surender Alias Sendhiya S/o Babu Lal, Aged About 40 Years,
R/o-    Village     -   Hindor     Police      Station      Rajiasar    District   Sri
Ganganagar Rajasthan (Lodged In Central Jail Sriganganagar)
                                                                       ----Petitioner
                                       Versus
State Of Rajasthan, Through Pp
                                                                    ----Respondent
                                 Connected With
 S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
                                  No. 804/2025
Seeta Ram S/o Krishan Lal, Aged About 31 Years, Resident Of
Ward No 9, Suratgarh, Police Station Suratgarh City, District
Sriganganagar, Rajasthan. (At Present Lodged At District Jail
Sriganganagar)
                                                                       ----Petitioner
                                       Versus
State Of Rajasthan, Through Pp
                                                                    ----Respondent


For Petitioner(s)            :     Mr. S.R. Godara
                                   Mr. Navneet Puia
For Respondent(s)            :     Mr. N.S. Chandawat, DyGA



                   HON'BLE MR. JUSTICE FARJAND ALI

Order

08/01/2026

1. The instant applications for suspension of sentence have

been moved on behalf of the applicants in the matter of judgment

dated 05.04.2025 passed by the learned Additioanl Sessions

Judge, Suratgarh, District Sri Ganganagar in Sessions Case

No.73/2020, whereby they have been convicted and sentenced to

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suffer imprisonment of 20 years' R.I. along with a fine of

Rs.2,00,000/- under Section 8/22 of the NDPS Act.

2. It is contended by the learned counsel for the appellants that

the learned trial Judge has not appreciated the correct, legal and

factual aspects of the matter and thus, reached at an erroneous

conclusion of guilt, therefore, the same is required to be

appreciated again by this court being the first appellate Court. The

appellants did not misuse the liberty when bail was granted to

them earlier; hearing of the appeal is likely to take long time,

therefore, the application for suspension of sentence may be

granted.

3. Per contra, learned public prosecutor has vehemently

opposed the prayer made by learned counsel for the accused-

applicants for releasing the appellants on applications for

suspension of sentence.

4. Heard learned counsel for the parties and perused the

material available on record.

5. There exists a fine yet significant distinction between the

grant of bail under Section 439 of the Code of Criminal Procedure,

1973, and the suspension of sentence under Section 389 CrPC.

While the power exercised under Section 439 CrPC is essentially

discretionary in nature and operates at the pre-conviction stage,

the jurisdiction under Section 389 CrPC, though also discretionary,

is qualitatively different and operates post-conviction. Under

Section 389 CrPC, the appellate court is vested with a distinct

authority; however, the core consideration before the appellate

forum must necessarily be whether the judgment of conviction

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and the consequent order of sentence are sustainable in the eyes

of law.

6. It is trite that the presumption of innocence, which enures in

favour of an accused, comes to an end upon conviction.

Consequently, while considering an application under Section 389

CrPC, the appellate court is required to examine the grounds

raised in the appeal, and for such purpose, the oral and

documentary evidence must be looked into. Where, upon

appreciation of evidence, it appears that the conclusions drawn by

the trial court may be erroneous, and where logical, legal and

sustainable arguments are advanced assailing the findings,

disclosing a strong and arguable case, the appellate court is duty-

bound to consider such contentions.

7. Where the sustainability of the conviction itself becomes

debatable, and where the grounds raised in appeal, if adjudicated

in favour of the appellant, disclose a real and substantial

possibility of success, and where, prima facie, it appears that the

conviction may be reversed and the appellant may be acquitted,

the appellate court ought to suspend the sentence pending

disposal of the appeal.

8. Such discretion deserves to be exercised with greater

circumspection in cases where the appellate forum has sufficient

reason to believe that the appeal is not likely to be taken up for

hearing in the near future. In such circumstances, the court is

required to assess whether the grounds raised are not merely

ornamental but possess real substance and force, for the simple

reason that if the appeal ultimately succeeds, the period of

incarceration already undergone cannot be undone or restituted.

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In such a situation, the court should incline towards suspending

the sentence.

9. At the same time, it is well settled that the appellate court is

not required to record any definitive or conclusive finding, as

doing so would amount to forming a pre-determined opinion on

the merits of the appeal at an initial stage, without affording a full

hearing on the appeal itself. It is sufficient if the court merely

indicates that the grounds raised are prima facie appreciable,

logical and legally tenable, that they are founded upon settled

principles of law, and that there appears to be improper evaluation

or assessment of evidence, or non-consideration/disregard of

relevant statutory provisions.

10. It is also to be borne in mind that in several cases, the

conviction may ultimately be converted to a lesser offence, or the

propriety of the sentence imposed by the trial court, being within

its discretionary domain may also require reconsideration,

particularly whether an adequate and proportionate sentence was

imposed after due hearing on the point of sentence. These

aspects, too, are open to re-examination at the appellate stage.

11. An appeal, in its true sense, is an extension of the trial, for

the reason that additional evidence may be taken, and the entire

body of evidence is subject to re-appreciation on both factual and

legal parameters. At this stage, the appellate court is empowered

to set aside the conviction, modify it, remand the matter, or

maintain the judgment, as the case may be.

12. In this High Court, thousands of criminal appeals have

remained pending for the last 20-30 years, including jail appeals,

where even the likelihood of early hearing does not appear

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forthcoming. In such matters, instead of taking an irreversible

risk, the court must proceed on the safer side by placing

paramount importance on human dignity and personal liberty.

13. In the present case, 100 cartons were recovered allegedly

containing contraband, but sample was taken from one carton

marked as 'A1' and sent to FSL, in which psycotropic substance

was detected by the FSL. The plea that only one carton had at

least can be presumed to have contained a psycotropic substance

and others were not, has force. The submission regarding not

giving notice under Section 50 of the NDPS Act is a detabtable

question. Temporarily this court feels that there would be no need

for giving the option under Section 50 before making search since

the cartons were taken from the appellant, however, there is plea

that the cartons were with the body of the appellants and

therefore, Section 50 of the NDPS Act would apply shall be

considered at the time of hearing of the appeal. The appellants

have remained behind the bars for around five and half years. All

the issues raised are vital in nature and carry sufficient force and

substance, such that if they are adjudicated in favour of the

appellants, the possibility of acquittal cannot be ruled out. The

grounds raised are appreciable and necessitate definitive

adjudication, which would require meticulous examination and re-

appreciation of evidence, and there exists a reasonable possibility

that such exercise may ultimately enure to the benefit of the

appellants.

14. Accordingly, the applications for suspension of sentence filed

under Section 389 Cr.P.C. are allowed and it is ordered that the

sentence passed by learned trial court, the details of which are

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provided in the first para of this order, against the appellant-

applicants named above shall remain suspended till final disposal

of the aforesaid appeal and they shall be released on bail provided

each of them executes a personal bond in the sum of Rs.50,000/-

with two sureties of Rs.25,000/- each to the satisfaction of the

learned trial Judge and whenever ordered to do so till the disposal

of the appeal on the conditions indicated below:-

(i). That he will appear before the trial Court in the month of

January of every year till the appeal is decided.

(ii). That if the applicant changes the place of residence, he

will give in writing his changed address to the trial Court as well as

to the counsel in the High Court.