Rajasthan High Court – Jodhpur
Surendra Kumar vs State Of Rajasthan (2026:Rj-Jd:10296) on 25 February, 2026
Author: Farjand Ali
Bench: Farjand Ali
[2026:RJ-JD:10296]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 227/2026
in
S.B. Criminal Appeal No.262/2026
1. Surendra Kumar S/o Ramchandra, Aged About 20 Years,
R/o Dhani Dungarsinghpura, P.s Ratannagar, Tahsil And
District Churu. (Presently Lodged At District Jail Churu)
2. Jagmal Singh S/o Bhanaram, Aged About 50 Years, R/o
Dhani Dungarsinghpura, P.s Ratannagar, Tahsil And
District Churu. (Presently Lodged At District Jail Churu)
----Petitioners
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Mangilal Vishnoi
For Respondent(s) : Mr. SR Choudhary, PP
HON'BLE MR. JUSTICE FARJAND ALI
Order
25/02/2026
1. The instant application for suspension of sentence has been
moved on behalf of the applicants in the matter of judgment dated
29.01.2026 passed by the learned Special Judge NDPS Cases,
District and Session Judge, District Churu in Session Case
No.04/2020 whereby he was convicted and sentenced to suffer
maximum imprisonment of 5 years’ R.I. under Section 8/15 &
8/29 of NDPS Act (with a fine of Rs.50,000/- and in case of default
of payment, further 1 months’ S.I.).
2. It is contended by the learned counsel for the appellants that
the learned trial Judge has not appreciated the correct, legal and
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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.
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 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
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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 appellants, disclose a real and substantial
possibility of success, and where, prima facie, it appears that the
conviction may be reversed and the appellants 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
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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
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 recovered contraband is below
commercial quantity. There is submission regarding non-
compliance of the mandatory provisions of the NDPS Act. The
sentence awarded to the appellants is of a comparatively shorter
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duration. The embargo contained under Section 37 of NDPS Act
would not come in way of granting bail to the appellants. 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 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 appellants-
applicants named above shall remain suspended till final disposal
of the aforesaid appeal and they 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 they will appear before the trial Court in the month
of January of every year till the appeal is decided.
(ii). That if the applicants changes the place of residence,
they 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.
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15. The learned trial Court shall keep the record of attendance of
the accused-applicants in a separate file. Such file be registered as
Criminal Misc. Case related to original case in which the accused-
applicants 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 applicants 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
235-chhavi/-
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