Rajasthan High Court – Jodhpur
Bhimsen vs State Of Rajasthan (2026:Rj-Jd:20573) on 29 April, 2026
Author: Farjand Ali
Bench: Farjand Ali
[2026:RJ-JD:20573]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc. Suspension Of Sentence Application (Appeal)
No. 687/2026
Bhimsen S/o Prithvi Raj, Aged About 40 Years, R/o Narayanpura,
Police Station Bhavvala, District Fazilka, Punjab. (At Present
Lodged In District Jail Hanumangarh)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Achala Ram
For Respondent(s) : Mr. S.R .Choudhary, AGA
HON'BLE MR. JUSTICE FARJAND ALI
Order
29/04/2026
1. The instant application has been filed on behalf of the
appellant under Section 430 of the Bharatiya Nagarik
Suraksha Sanhita, 2023 seeking suspension of sentence
awarded to him by the learned Additional Sessions Judge
(NDPS Act Cases), Sangariya vide judgment dated
10.04.2026 passed in Sessions Case No. 15/2020 (CIS No.
17/2020), whereby the appellant has been convicted for
offences under Sections 8/21 and 29 of the Narcotic Drugs
and Psychotropic Substances Act, 1985 and has been
sentenced to undergo one year and two months’ rigorous
imprisonment along with a fine of Rs.5,000/-, in default of
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payment of fine, to further undergo one month’s rigorous
imprisonment.
2. Learned counsel for the appellant submits that the trial
court failed to properly appreciate the legal and factual
aspects, resulting in an erroneous finding of guilt. Being the
first appellate court, this Court may reappraise the evidence.
It is further submitted that the appellant remained on bail
during trial without misuse of liberty, and as the appeal will
take time for disposal, the sentence deserves to be
suspended.
3. Learned Public Prosecutor has opposed the prayer for
suspension of sentence.
4. Heard learned counsel for the parties and perused the
material available on record.
5. The distinction between grant of bail under Section 439
CrPC ( corresponding to Section 483 BNSS)and suspension
of sentence under Section 389 CrPC ( corresponding to
Section 430 BNSS)is well settled. While the former operates
at the pre-conviction stage, the latter comes into play post-
conviction and requires the appellate court to assess, prima
facie, the sustainability of the conviction and sentence under
challenge.
6. Upon conviction, the presumption of innocence stands
displaced; however, while considering suspension of
sentence, the appellate court is required to evaluate whether
the grounds raised in appeal disclose a substantial and
arguable case. If the material on record suggests that the
findings of the trial court may be debatable, the discretion
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under Section 389 CrPC ( corresponding to Section 430
BNSS) can be justifiably invoked.Where the appeal raises
issues which, on prima facie consideration, indicate a
reasonable possibility of success, including reversal or
modification of conviction, the sentence may be suspended
pending adjudication.
7. This Court is guided by the enunciation of law by the
Hon’ble Supreme Court in Muna Bisoi v. State of Odisha
(February 16, 2026) , wherein it has been held that
prolonged pendency of criminal appeals, not attributable to
the convict, constitutes a valid ground for suspension of
sentence. Reliance has also been placed on Kashmira
Singh v. State of Punjab (1977) 4 SCC 291 , wherein the
Supreme Court deprecated continued incarceration of
convicts for long periods during pendency of appeals,
observing that such practice would amount to a travesty of
justice.
8. It is equally settled that while considering such
application, the appellate court is not required to record
conclusive findings on merits, as that would prejudice the
final adjudication. A prima facie satisfaction regarding the
arguability and substance of the grounds would suffice. The
appellate jurisdiction being a continuation of trial, the entire
evidence remains open to re-appreciation. The court may
ultimately affirm, modify, or set aside the conviction, or alter
the sentence, depending upon the outcome of such re-
evaluation.
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9. Additionally, even where conviction is sustained, the
nature of offence or quantum of sentence may warrant
reconsideration at the appellate stage, which further justifies
a liberal approach in appropriate cases. This Court cannot
lose sight of the fact that it is burdened with a large number
of pending criminal appeals, and the likelihood of their early
disposal remains uncertain. In such circumstances,
continued incarceration, despite arguable grounds in appeal,
would not be justified, particularly when delay is not
attributable to the appellant.
10. In the present case, 10. In the present case, the
recovery alleged is of 06 grams of heroin (chitta), which is a
small quantity. It is noticed that there are apparent
deficiencies in compliance with the mandatory provisions of
the NDPS Act, which go to the root of the prosecution case
and require closer scrutiny at the stage of final hearing. In
cases under the NDPS Act, strict adherence to the prescribed
procedure is imperative and any lapse in compliance creates
serious doubt regarding the fairness of the recovery. The
sentence awarded is comparatively short, i.e., one year and
two months’ rigorous imprisonment, and the appellant has
already remained in custody for a substantial period. The
appeal is not likely to be heard in the near future. The issues
raised are arguable and require re-appreciation of evidence.
If accepted, they may result in acquittal. They warrant
proper examination at the stage of final hearing, with a
reasonable possibility of benefit to the appellant.
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11. Accordingly, the application for suspension of sentence
filed under Section 389 Cr.P.C. ( corresponding to Section
430 BNSS) 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.
3. Similarly, if the sureties change their
address(s), they will give in writing their
changed address to the trial Court.
12. 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
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cases in the trial court. In case the said accused applicant
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
106-poojatak/-
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