[Cites 9, Cited by 0]

Rajasthan High Court - Jodhpur

Kamal Kumar vs State Of Rajasthan (2026:Rj-Jd:686) on 7 January, 2026

Author: Farjand Ali

Bench: Farjand Ali

[2026:RJ-JD:686]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
 S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
                                  No. 2244/2025

                                            In

                     S.B. Criminal Appeal No.2685/2025

Kamal Kumar S/o Shri Om Prakash Arora, Aged About 33 Years,
Resident Of Ward No. 03, Kaliya Police Station Sadar, Sri
Ganganagar. (At Present Lodged In Central Jail, Sri Ganganagar.)
                                                                            ----Petitioner
                                        Versus
State Of Rajasthan, Pp
                                                                          ----Respondent


For Petitioner(s)             :     Mr. Sunil Vishnoi
For Respondent(s)             :     Mr. Sri Ram Choudhary, 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 04.10.2025 passed by the learned Special Judge,

NDPS Act Cases, Sri Ganganagar in Sessions Case

No.60/2019 whereby he was convicted and sentenced to

suffer maximum imprisonment of five years along with a fine

of Rs.20,000 and in default to further undergo one year's SI

under Section 8/22 of the NDPS Act and lesser punishment

for the other offence under Section 8/21 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 stands convicted and

sentenced in connection with the alleged recovery of 25

strips of Tablet Trio-SR, purportedly recovered from the

right pocket of his trousers. A careful scrutiny of the record

reveals prima facie non-compliance with the

mandatory safeguards engrafted under the NDPS Act,

particularly Sections 50 and 52-A, which govern the

manner of search, seizure, sampling, and certification of

seized contraband. Such statutory safeguards are not merely

procedural formalities but constitute substantive protections

intended to ensure fairness, transparency, and credibility in

prosecutions under the stringent regime of the NDPS Act.

14. It further emerges that, out of the total 25 strips allegedly

recovered, samples were drawn from only two strips, and

the forensic examination was confined to 20 tablets alone.

The remaining strips were neither sampled nor subjected to

chemical analysis. In the absence of representative sampling

and comprehensive forensic corroboration, it cannot be

presumed, with the degree of certainty mandated in criminal

jurisprudence, that all the recovered strips contained the

alleged narcotic or psychotropic substance. The sampling

methodology adopted by the prosecution thus becomes

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vulnerable to serious doubt and undermines the evidentiary

foundation of the conviction.

15. In this backdrop, a substantial and debatable question arises

as to why the case should not be treated as falling below the

commercial quantity, especially when the FSL report pertains

to only a limited number of tablets and does not conclusively

establish the nature or quantity of the substance allegedly

contained in the remaining strips. The failure to scientifically

establish the contents of the entire recovered material

assumes critical significance, as the determination of

quantity directly impacts the applicability of stringent penal

provisions and sentencing consequences under the NDPS

Act.

16. The issues so raised are vital, substantial, and replete with

legal and factual significance. If adjudicated in favour of the

appellant, the possibility of acquittal cannot be ruled out.

These grounds necessitate definitive adjudication through

meticulous scrutiny and re-appreciation of evidence,

including an examination of procedural compliance, the

integrity of sampling, and the probative value of the forensic

report. There exists, therefore, a reasonable likelihood that

such an exercise may ultimately ensure to the benefit of the

appellant, warranting indulgence at this stage by allowing

the instant application.

17. Accordingly, the application for suspension of sentence filed

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

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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.