[Cites 8, Cited by 0]
Rajasthan High Court - Jodhpur
Onkar Ram vs State Of Rajasthan (2026:Rj-Jd:972) on 8 January, 2026
Author: Farjand Ali
Bench: Farjand Ali
[2026:RJ-JD:972]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 1992/2025
Onkar Ram S/o Chogha Ram, Aged About 34 Years, R/o
Kumawato Ki Dhani, Bhawata, P.s. Kuchaman City, District
Didwana Kuchaman, Rajasthan (Lodged In Dist. Jail Nagaur)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Rajeev Bishnoi
For Respondent(s) : Mr. Surendra Bishnoi, AGA
HON'BLE MR. JUSTICE FARJAND ALI
Order
08/01/2026
1. The instant application for suspension of sentence has been
moved on behalf of the applicant in the matter of judgment dated
15.10.2025 passed by the learned Special Judge, NDPS Cases,
Kuchaman City in Sessions Case No.14/2022, whereby he was
convicted and sentenced to suffer imprisonment of 10 years' R.I.
along with a fine of Rs.1,00,000/- under Section 8/18 of the NDPS
Act.
2. It is contended by the learned counsel for the appellant 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
appellant was on bail most of the period during trial and did not
misuse the liberty so granted to him; hearing of the appeal is
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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-
applicant for releasing the appellant on application 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
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
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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.
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
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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
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. On a prima facie evaluation of the record, it emerges that
the recovery attributed to the appellant is of 400 grams of opium
milk, allegedly recovered from the utility box of the motorcycle
being driven by him. The said quantity does not fall within the
category of commercial quantity, and, therefore, the statutory
embargo contained under Section 37 of the NDPS Act is not
attracted in the present case. Further, the manner of search and
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seizure raises arguable issues, inasmuch as there appears to be
non-compliance of the mandatory provisions of Sections 42, 50
and 52A of the NDPS Act. The prosecution case is also weakened
by the fact that the independent recovery witnesses have not
supported the prosecution version and have turned hostile. These
aspects, coupled with the fact that the recovery was effected from
a concealed portion of the vehicle and not from the personal
search of the appellant, prima facie cast a shadow of doubt on the
prosecution case. Without expressing any opinion on the merits of
the appeal and while refraining from commenting upon the
evidence in detail, this Court finds that the case does not attract
the rigours of Section 37 of the NDPS Act and that the appellant
has been able to make out a case for suspension of sentence
during the pendency of the appeal.
14. Accordingly, the application for suspension of sentence filed
under Section 389 Cr.P.C. is allowed and it is ordered that the
sentence passed by learned trial court, the details of which are
provided in the first para of this order, against the appellant-
applicant named above shall remain suspended till final disposal of
the aforesaid appeal and he shall be released on bail provided he
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.
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(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.
(iii). Similarly, if the sureties change their address(s), they
will give in writing their changed address to the trial Court.
15. The learned trial Court shall keep the record of attendance of
the accused-applicant in a separate file. Such file be registered as
Criminal Misc. Case related to original case in which the accused-
applicant was tried and convicted. A copy of this order shall also
be placed in that file for ready reference. Criminal Misc. file shall
not be taken into account for statistical purpose relating to
pendency and disposal of cases in the trial court. In case the said
accused applicant does not appear before the trial court, the
learned trial Judge shall report the matter to the High Court for
cancellation of bail.
(FARJAND ALI),J
132-Pramod/-
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