Rajasthan High Court – Jodhpur
Shakil Mohd vs State Of Rajasthan (2026:Rj-Jd:17960) on 15 April, 2026
Author: Farjand Ali
Bench: Farjand Ali
[2026:RJ-JD:17960]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc. Suspension Of Sentence Application (Appeal)
No. 1680/2025
Mohammad Kasim S/o Shri Jannat Shekh, Aged About 29 Years,
Kishanpur (Puraba) Jalu Abadi, Police Station Kaliya Chak,
District Madala. ( West Bangol). (Presently Lodged In Central
Jail, Udaipur)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
Connected With
S.B. Criminal Misc. Suspension Of Sentence Application (Appeal)
No. 1681/2025
Amirul S/o Shri Mohika Alias Mohbeer Shekh, Aged About 40
Years, Majampur Balugaon P.s. Kaliyachak District Madla West
Bangal (Lodged In Central Jail, Udaipur)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
S.B. Criminal Misc. Suspension Of Sentence Application (Appeal)
No. 166/2026
Mohd. Rabiull S/o Tejabull Sheikh, Aged About 29 Years, R/o
Majhampur, P.s Kaliyachak, District Madla (West Bengal) (At
Present Lodged At Central Jail Udaipur)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
S.B. Criminal Misc. Suspension Of Sentence Application (Appeal)
No. 229/2026
Shakil Mohd. S/o Tamejudeen Sheikh, Aged About 44 Years, R/o
Thur. Ps. Ambamata, District Udaipur (Raj) (At Present Lodged
At Central Jail Udaipuri)
----Petitioner
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Versus
State Of Rajasthan, Through Its Public Prosecutor
----Respondent
For Petitioner(s) : Mr. Ranjeet Singh Chouhan
Mr. R.K. Charan
Ms. Ayushi Rathore
For Respondent(s) : Mr. Surendra Bishnoi, AGA
HON'BLE MR. JUSTICE FARJAND ALI
Order
15/04/2026
1. The instant application for suspension of sentence has been
moved on behalf of the applicants in the matter of judgment
dated 27.08.2025 passed by the learned Special Judge,
NDPS Act Cases cum Addl. District & Sessions Judge No.1,
Udaipur in Special Sessions Case No.18/2016 whereby they
were convicted and sentenced as under:-
Name of Offence Substant Fine and default
the for which ive sentence
accused convicted sentence
Mohd. Section 8/12 12 years Fine of Rs.1,20,000/- and
Rabiull NDPS Act RI in default to further
undergo 12 months RI
Section 8/18 3 years RI Fine of Rs.30,000/- and in
NDPS Act default to further undergo 3
months RI
a) Mohd. Section 8/12 12 years Fine of Rs.1,20,000/- each
Shakil NDPS Act RI and in default to further
b) Mohd. undergo 12 months RI
Kasim
c) Amirul
2. On 20.05.2016, the complainant, Bhaiya Lal, allegedly
effected seizure of contraband from co-accused Amirul and
thereafter submitted a written complaint against the said co-
accused as well as the present appellant before the Station
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House Officer of Police Station Gogunda. Pursuant thereto,
FIR No. 138/2016 came to be registered for offences
punishable under Section 8/18 of the NDPS Act.
2.1. Upon completion of investigation, the police presented
charge-sheet against the appellant and other co-accused
persons for offences under Sections 8/18 and 8/29 of the
NDPS Act. After committal of the matter, charges were
framed and the prosecution witnesses were examined during
trial. It is the case of the appellant that a bare scrutiny of the
testimony of the prosecution witnesses reveals material
infirmities, demonstrating that the appellant has been falsely
implicated and wrongly convicted in the present matter.
Thereafter, vide judgment dated 27.08.2025, the learned
Special Judge, NDPS Act Cases, Udaipur convicted the
appellant for the offence under Section 8/18 of the NDPS Act.
Aggrieved thereby, the present criminal appeal has been
preferred before this Court.
3. Learned counsel for the appellant has assailed the impugned
judgment on diverse grounds and submits that the conviction
suffers from serious legal and procedural infirmities,
rendering the appellant entitled to indulgence under Section
389 Cr.P.C. pending disposal of the appeal.
3.1. It is firstly contended that there has been manifest non-
compliance of Section 50 of the NDPS Act. Inviting attention
to notices Ex.P/4 to Ex.P/6, it is urged that the said notices
were allegedly served upon the concerned persons in relation
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not only to their personal search, but also with respect to
search of the motorcycle and bag. It is submitted that while
extending the statutory option, a further third option of being
searched by the Station House Officer himself was also
incorporated and a return consent was sought, thereby
diluting the sanctity and mandatory character of the
safeguard enshrined under Section 50. According to learned
counsel, the right contemplated under the statute is required
to be conveyed in clear, unambiguous, and meaningful terms,
free from any confusing or composite alternatives. Reliance
has been placed upon State of Himachal Pradesh v. Surat
Singh, State of Rajasthan v. Parmanand & Anr. decided by
the Apex Court in Criminal Appeal No.96/2018 decided on
16.03.2026 and Vijaysinh Chandubha Jadeja v. State of
Gujarat reported in AIR 2011 SC 77.
3.2. It is next contended that the sampling procedure adopted by
the prosecution is ex facie irregular. Referring to recovery
memo Ex.P/7 and the deposition of P.W.5 Bhaiya Lal, it is
urged that two samples of 5 grams each were allegedly taken
from all ten packets, thereafter mixed together, and from
such composite mixture two samples of 50 grams each were
prepared for dispatch to the Forensic Science Laboratory. It is
argued that no separate representative samples from each
packet were drawn and preserved. According to learned
counsel, such a course materially affects the evidentiary
reliability of the seizure and creates a serious doubt regarding
the identity and homogeneity of the substance allegedly
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recovered from each separate packet. Reliance has been
placed on the decision of this Court in Kamlesh Kumar v.
State (SBCRLMSOSA No.318/2024 decided on 08.07.2025).
3.3. It is further urged that there has been unexplained delay in
transmission of the samples to the Forensic Science
Laboratory. As per the prosecution record, recovery was
allegedly effected on 20.05.2016 vide Ex.P/7, whereas the
samples were forwarded only on 23.06.2016 vide Ex.P/22,
Ex.P/23 and Ex.P/24. Learned counsel submits that the delay
of over one month, absent satisfactory explanation, strikes at
the chain of custody and raises a substantial apprehension
regarding sanctity of the sealed samples. Reliance has been
placed upon Surpal Singh v. State of Raj. And Hari Skingh v.
State of Rajasthan (SBCRLMB Nos.2692/2024 & 753/2024
decided on 06.03.2024 and Wajid Ali @ Tinku v. State of
Rajasthan (Special Leave to Appeal (Crl.) No.7049/2025
decided 09.02.2026).
3.4. Lastly he submits 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 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.
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2. 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.
3. Heard learned counsel for the parties and perused the
material available on record.
4. 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.
5. 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 sustainable arguments are advanced
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assailing the findings, disclosing a strong and arguable case,
the appellate court is duty-bound to consider such
contentions.
6. 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.
7. 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.
8. 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
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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.
9. 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.
10. 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.
11. In the 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.
12. This Court has given its thoughtful consideration to the
submissions advanced on behalf of the applicants and has
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minutely perused the impugned judgment as well as the
material available on record. At the stage of consideration of
an application under Section 389 Cr.P.C. for suspension of
sentence, the Court is not expected to undertake a
meticulous re-appreciation of the entire evidence;
nevertheless, where substantial and arguable issues arise
touching the legality of conviction, such circumstances
deserve due weight.
13. The first limb of challenge pertains to the alleged non-
compliance of Section 50 of the NDPS Act. Prima facie,
notices Ex.P/4 to Ex.P/6 appear to have been issued not only
in relation to personal search of the concerned persons, but
also qua search of the motorcycle and bag. Additionally,
while extending the statutory option, a further alternative of
search by the Station House Officer himself appears to have
been incorporated and a return consent was sought. The
Hon’ble Supreme Court in Vijaysinh Chandubha Jadeja v.
State of Gujarat has authoritatively held that the valuable
safeguard under Section 50 must be communicated in a
clear, meaningful, and unambiguous manner so as to enable
an informed choice. Similar emphasis upon strict observance
of the statutory mandate is discernible in State of Rajasthan
v. Parmanand & Anr. and State of Himachal Pradesh v. Surat
Singh. Thus, the objection raised by the applicants on this
count cannot be termed illusory and requires deeper
examination at the stage of final hearing.
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14. The second challenge relates to the procedure of sampling.
From recovery memo Ex.P/7 and the deposition of P.W.5
Bhaiya Lal, it prima facie emerges that two samples of 5
grams each were drawn from all ten packets, thereafter
mixed together, and from such mixture two consolidated
samples of 50 grams each were prepared for dispatch to the
Forensic Science Laboratory. The record, at this stage,
appears to indicate that no separate representative samples
from each packet were independently drawn and sent for
examination. The propriety and evidentiary consequences of
such procedure have been considered by this Court in
Kamlesh Kumar v. State. Consequently, the applicants have
succeeded in raising a substantial and arguable issue
touching the representativeness, identity, and sanctity of the
samples relied upon by the prosecution.
15. The third limb of challenge pertains to delay in dispatch of
samples to the Forensic Science Laboratory. As per the
prosecution record, the alleged recovery was effected on
20.05.2016 vide Ex.P/7, whereas the samples were
transmitted only on 23.06.2016 vide Ex.P/22, Ex.P/23 and
Ex.P/24. The effect of delayed transmission and the
concomitant requirement of preserving an unimpeachable
chain of custody have been noticed by this Court in Surpal
Singh v. State and Wajid Ali @ Tinku v. State of Rajasthan.
Therefore, the delay in forwarding the samples also
constitutes a relevant circumstance which warrants
consideration in appellate scrutiny.
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16. This Court further notices that during the course of trial, the
applicants remained on bail and there is no allegation that
they misused the liberty so granted or attempted to evade
the process of law. The applicants have already undergone
approximately three years of substantive sentence.
Considering the present docket position, the final hearing of
the appeal is not likely to take place in the immediate future
and its disposal may reasonably consume considerable time.
Thus, viewed cumulatively, the appeal raises arguable
questions regarding compliance of statutory safeguards,
sanctity of the sampling process, and continuity of custody
of the seized contraband. Without expressing any conclusive
opinion on the merits of the conviction, this Court is satisfied
that the applicants have made out a fit case for suspension
of sentence pending disposal of the appeal.
17. 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
Judge and whenever ordered to do so till the disposal of the
appeal on the conditions indicated below:-
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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.
3. Similarly, if the sureties change their
address(s), they will give in writing their
changed address to the trial Court.
18. 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-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 applicants
do 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
120-122Mamta/-
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