[Cites 6, Cited by 0]

Rajasthan High Court - Jodhpur

Prakash vs State Of Rajasthan (2026:Rj-Jd:3553) on 20 January, 2026

Author: Farjand Ali

Bench: Farjand Ali

[2026:RJ-JD:3553]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                         JODHPUR
     S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
                                  No. 2130/2025

                                           in

                     S.B. Criminal Appeal No.2588/2025

 Prakash S/o Shri Bhuraram, Aged About 33 Years, Resident Of
 Sadri, Pilwa, Police Station, Lohawat, Jodhpur (Presently Central
 Jail, Jodhpur)
                                                                      ----Petitioner
                                       Versus
 State Of Rajasthan, Through Pp
                                                                    ----Respondent


For Petitioner(s)             :    Mr. Suresh Kumar
                                   Mr. JK Hania
For Respondent(s)             :    Mr. SR Choudhary, PP



                HON'BLE MR. JUSTICE FARJAND ALI

Order

20/01/2026

1. The instant application for suspension of sentence has been

moved on behalf of the applicants in the matter of judgment

dated 10.11.2025 passed by the learned Special Judge

(NDPS Cases), No.1, District Jodhpur Metropolitan in

Sessions Case No.42/2015 whereby he was convicted and

sentenced to suffer maximum imprisonment of 5 years RI

under Section 8/21 of NDPS Act along with fine of

Rs.50,000/- and in default of payment to further undergo 1

year RI.

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

the learned trial Judge has not appreciated the correct, legal

(Uploaded on 22/01/2026 at 12:22:39 PM)

[2026:RJ-JD:3553] (2 of 6) [SOSA-2130/2025]

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 were on bail during trial and did not

misuse the liberty so granted to them; 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 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 Cr.P.C. 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 Cr.P.C, 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.

(Uploaded on 22/01/2026 at 12:22:39 PM)

[2026:RJ-JD:3553] (3 of 6) [SOSA-2130/2025]

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. In such a

situation, the court should incline towards suspending the

sentence.

(Uploaded on 22/01/2026 at 12:22:39 PM)

[2026:RJ-JD:3553] (4 of 6) [SOSA-2130/2025]

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 the High Court, thousands of criminal appeals have

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

(Uploaded on 22/01/2026 at 12:22:39 PM)

[2026:RJ-JD:3553] (5 of 6) [SOSA-2130/2025]

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. The recovered contraband is below commercial quantity.

There is submission regarding non-compliance of the

mandatory provisions of the NDPS Act. All the issues raised

are vital in nature and carry sufficient force and substance,

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

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 appellant. The embargo

contained under Section 37 of NDPS Act would not come in

way of granting bail to the appellant.

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-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

(Uploaded on 22/01/2026 at 12:22:39 PM)

[2026:RJ-JD:3553] (6 of 6) [SOSA-2130/2025]

Judge and whenever ordered to do so till the disposal of the

appeal on the conditions indicated below:-

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

2. That if the applicants change the place of residence, they will give in writing their changed address to the trial Court as well as to the counsel in the High Court.