[Cites 7, Cited by 0]

Rajasthan High Court - Jodhpur

Amit Kumar vs State Of Rajasthan (2026:Rj-Jd:680) on 7 January, 2026

Author: Farjand Ali

Bench: Farjand Ali

[2026:RJ-JD:680]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
 S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
                                No. 1138/2025

                                          In

                    S.B. Criminal Appeal No.1392/2025

Amit Kumar S/o Shri Naresh Kumar, Aged About 40 Years,
Resident Of Ward No 12 Near Animal Hospital Sangaria Tahsil
Sangaria District Hanumangarh Presently Lodged In District Jail
Hanumnagarh
                                                                     ----Petitioner
                                      Versus
State Of Rajasthan, Through The Public Prosecutor
                                                                   ----Respondent


For Petitioner(s)           :     Mr. N.R. Budania
For Respondent(s)           :     Mr. Surendra Bishnoi, AGA



                   HON'BLE MR. JUSTICE FARJAND ALI

Order

07/01/2026

1. The instant application for suspension of sentence has been

moved on behalf of the applicant in the matter of judgment

dated 27.05.2025 passed by the learned Special Judge,

NDPS Act Cases, Sangaria, District Hanumangarh in Sessions

Case No.23/2018 whereby he was convicted and sentenced

to suffer imprisonment of 10 years along with a fine of

Rs.1,00,000 and in default six months RI under Section

8/21-22-29 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

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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 during trial and did not

misuse the liberty so granted to him; 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-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

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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. In such a

situation, the court should incline towards suspending the

sentence.

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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

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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. In the present case, the appellant has been convicted and

sentenced on the basis of the alleged recovery of 54 strips of

capsules containing Trimodal Hydrochloride, Baclofen

Sodium, Dicyclomine Hydrochloride, and Chlorpheniramine

Maleate. A scrutiny of the record, however, reveals that

samples were drawn from only a single strip. In such

circumstances, the defence contention that all the recovered

strips did not necessarily contain the alleged narcotic or

psychotropic substances cannot be dismissed as devoid of

merit, particularly in light of the prosecution's failure to

adduce any independent or corroborative evidence

establishing the composition of the remaining strips.

14. Furthermore, there appears to be prima facie non-

compliance with the mandatory provisions of Sections 50,

52--A, and 55 of the NDPS Act, which casts a serious

shadow over the legality of the search, seizure, and custodial

handling of the alleged contraband. These procedural

infirmities raise substantial and arguable questions of law

and fact, warranting thorough re-appreciation at the stage of

final adjudication.

15. In the circumstances, the prosecution case cannot be

accepted at face value at this stage, and the appellant has

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demonstrably established a strong and plausible case in his

favour. The issues raised are vital and carry appreciable

force and substance, such that if ultimately adjudicated in

the appellant's favour, the possibility of acquittal cannot be

ruled out. Resolution of these grounds would require

meticulous scrutiny and re-evaluation of the evidence, and

there exists a reasonable probability that such exercise may

ultimately ensure to the appellant's benefit by allowing the

instant application for suspension of sentence.

16. 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:-

1. That he will appear before the trial Court in the month of January of every year till the appeal is decided.

2. 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.

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3. Similarly, if the sureties change their address(s), they will give in writing their changed address to the trial Court.

17. 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