Rajasthan High Court – Jodhpur
Dayashanker Alias Dayal vs State Of Rajasthan (2026:Rj-Jd:18674) on 18 April, 2026
Author: Farjand Ali
Bench: Farjand Ali
[2026:RJ-JD:18674]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc. Suspension Of Sentence Application (Appeal)
No. 119/2026
In
S.B. Criminal Appeal No.129/2026
Dharmendra Kumar S/o Shri Subhash Chandra, Aged About 25
Years, Resident Of Thethawata At Present Jamidara City,
Fatehpur District Sikar. (At Present Lodged In Sub Jail Nohar)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
Connected With
S.B. Criminal Misc. Suspension Of Sentence Application (Appeal)
No. 2381/2025
In
S.B. Criminal Appeal No.2802/2025
Dayashanker Alias Dayal S/o Shri Nandlal, Aged About 40 Years,
Resident Of Rud, P.s. Rashmi District Chittorgarh. At Present
Lodged In Sub Jail Nohar
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
S.B. Criminal Misc. Suspension Of Sentence Application
(Appeal) No. 337/2026
Rampratap Alias Pratap
----Petitioner
Versus
State Of Rajasthan
----Respondent
For Petitioner(s) : Mr. J.K. Suthar
Mr. G.R. Bhari
For Respondent(s) : Mr. Sri Ram Choudhary, AGA
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HON'BLE MR. JUSTICE FARJAND ALI
Order
18/04/2026
SBCRLMSOSA Nos.119/2026 & 238/2026
1. The instant applications for suspension of sentence have
been moved on behalf of the applicants in the matter of
judgment dated 10.12.2025 passed by the learned Addl.
Sessions Judge, Nohar District Hanumangarh in Sessions
Case No.32/2021 whereby they were convicted and
sentenced to suffer maximum imprisonment of ten years RI
along with a fine of Rs.50,000/- alonwith default sentence.
2. Briefly stated the facts of the case are that on 15.08.2019,
Sub-Inspector Ram Prakash, In-charge SHO, Police Station
Rawatsar, while on patrol duty with police personnel near
village Thaladka on Rawatsar-Nohar Road, received secret
information at about 10:30 a.m. that a white Mahindra
Scorpio along with a white Hyundai i20 was carrying illicit
contraband.
2.1. Acting upon the information, naka-bandi was arranged.
At about 11:30 a.m., both vehicles approached from Nohar
Road. The i20 allegedly broke the naka-bandi and escaped,
while the Scorpio was chased after its driver diverted it
towards the canal embankment and nearby fields. The
vehicle got stuck in sand, and the driver fled taking
advantage of standing crops.
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2.2. Upon lawful search of the Scorpio, eight bags were
recovered, five white and three black. The contents, on
testing through drug detection kit, were found to be poppy
husk (Doda Post). On weighment, seven bags contained 18
kilograms each and one bag contained 24 kilograms, totaling
150 kilograms. Samples were drawn, sealed and seizure
proceedings were completed in accordance with law.On the
basis of the recovery memo, FIR No.351/2019 was
registered at Police Station Rawatsar, and after investigation,
charge-sheet was filed before the competent Court. Hence
the instant application.
3. It is contended on behalf of the applicants that certain
quantity of contraband came to be recovered from principal-
accused Ram Pratap and the present appellants have been
made an accused on the strength of the disclosure
statement of principal accused. The said disclosure
statement does not come within the ambit of Section 27 of
Indian Evidence Act. Learned counsel for the appellants
submit 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
appellants remained on bail during trial without misuse of
liberty, and as the appeal will take time for disposal, the
sentence deserves to be suspended.
4. Learned Public Prosecutor has opposed the prayer for
suspension of sentence.
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5. Heard learned counsel for the parties and perused the
material available on record.
6. 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.
7. 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
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.
8. 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
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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.
9. 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.
10. 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.
11. In the present matter, a careful perusal of the record reveals
a circumstance of considerable significance, namely, that no
person was apprehended at the place of occurrence and the
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present applicants were not found at the scene when the
alleged recovery was effected. It is further discernible from
the prosecution material itself that the applicants are not the
registered owners of the vehicle in question, nor were they
otherwise shown to be in immediate possession or control
thereof at the relevant time. The applicants were, in
substance, nowhere in the picture at the inception of the
incident, and no incriminating article, contraband, document
or discovery was effected from their person, premises, or at
their instance contemporaneously with the alleged seizure.
Their implication appears to have surfaced subsequently, and
that too upon the basis of the interrogation of co-accused
Ram Pratap, who is stated to have disclosed the names of
the present applicants before the police authorities.
12. The evidentiary worth, admissibility, and ultimate probative
value of such material are issues which would undoubtedly
require a deeper judicial scrutiny at the final hearing of the
appeal. However, at the present juncture, this Court cannot
remain oblivious to the practical realities of heavy docket
congestion, voluminous pendency and paucity of judicial
time, because of which the final hearing of the appeal does
not appear feasible in the near future. The appeal itself has
already been admitted long back for the purpose of
undertaking a fuller re-appreciation of evidence and
reconsideration of the conviction recorded by the learned
trial Court, yet the prospect of its early disposal remains
uncertain.
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13. Prima facie, the prosecution edifice appears substantially
founded upon the confessional/disclosure statement of the
co-accused and the statements allegedly made by persons
while in police custody. It is on the basis of such statement
attributed to co-accused Ram Pratap that the present
petitioners have been drawn into the net of criminal liability.
No independent material appears to have been collected by
the investigating agency to fortify or corroborate the
allegation so levelled. It is the admitted case of the
prosecution that neither were the petitioners found present
at the place of recovery, nor was any contraband or
incriminating substance recovered from their possession.
Save and except the disclosure statement of accused Ram
Pratap, no substantive material appears on record to directly
connect the applicants with the alleged offence.
14. This Court is constrained to observe that a serious question
arises as to who, at the stage of trial, would enter the
witness box to affirm on oath that the individuals who
allegedly fled from the spot were indeed the present
applicants. If the seizing officer merely states that he was
informed by a co-accused regarding their identity, such
statement would prima facie encounter the bar of hearsay,
being hit by the settled principles of the Indian Evidence Act,
1872, unless otherwise saved by any recognised statutory
exception.
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15. If the prosecution seeks to sustain the implication of the
applicants by invoking Section 27 of the Indian Evidence Act,
1872, then the law requires something more than a bare
statement naming another person. The statutory premise of
Section 27 is that some fact must be discovered in
consequence of information received from a person accused
of an offence while in custody of police, and only so much of
that information as distinctly relates to the fact thereby
discovered becomes admissible. In the present case, it is the
admitted position of the prosecution that pursuant to the
alleged information furnished under Section 27 regarding the
culpability of the petitioners, nothing new was disclosed, no
fresh fact emerged, no incriminating article was recovered,
and no discovery of evidentiary significance took place.
16. In such circumstances, this Court is of the considered prima
facie view that at the very least there ought to exist some
corroborative circumstance, independent support, or
objective material lending assurance to the confession or
disclosure allegedly made before the police while in custody.
A mere custodial accusation against another, unsupported by
consequential discovery or corroborative evidence, cannot by
itself acquire unimpeachable evidentiary stature.
17. It has been held by Hon’ble the Supreme Court in the case of
Mohd. Inayatullah Vs. State of Maharastra, reported in
AIR 1976 SC 483 that in order to apply Section 27 of the
Indian Evidence Act, only the components which are
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essential or were the cause of the discovery would be
considered to be legal evidence. The relevant paragraph of
the judgment reads as under:-
“For the application of Section 27 the statement must be split
into its components and to separate the admission portion.
Only those components or portions which were the immediate
cause of the discovery would be legal evidence and not the rest
which must be excised and rejected.”
A plain reading of Section 27 of the Indian Evidence Act,
1872, read conjointly with the judicial pronouncements
noticed above, makes it manifest that information in the
nature of confession received through disclosure by an
accused cannot, in isolation, be treated as a dependable
piece of incriminating evidence unless it culminates in
discovery of a relevant fact, recovery of an article, or
emergence of some circumstance corroborating the
truthfulness of such statement. Section 27 is, no doubt, an
exception carved out to the exclusionary sweep of Sections
24, 25 and 26 of the Evidence Act; yet, being an exception,
it is confined strictly to the contours expressly enacted by
the legislature and cannot be expanded by implication.
18. What eventual evidentiary value such statements may carry
at the stage of final adjudication is a matter not appropriate
for definitive pronouncement at this interlocutory stage, lest
any observation prejudice the merits of the appeal. However,
prima facie and in the given factual matrix, this Court is
satisfied that the statutory embargo engrafted under Section
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37 of the Narcotic Drugs and Psychotropic Substances Act,
1985 would not operate as an insurmountable obstacle in
considering suspension of sentence in favour of the
applicants. Added to this is the reality that there appears no
immediate likelihood of hearing of the appeal on merits in
the near future. In such circumstances, the principles
propounded by Hon’ble the Supreme Court in the case of
Satender Kumar Antil assume due relevance.
19. Proceeding further to another substantial legal facet of the
controversy, a serious challenge has been laid regarding due
compliance of Section 42 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 as also the competence
and procedural regularity of the officer who conducted the
search and seizure. The testimony of PW-1 Ram Prakash,
who was the seizing officer and was then functioning as In-
charge SHO, assumes central significance in this regard.
20. From a careful reading of his deposition, it emerges that at
the relevant time he was merely officiating as In-charge
SHO, whereas the regular SHO was one Arun Ji, who was
stated to be away. He admitted that no mention regarding
absence of the regular SHO was recorded in his own
departure entry. Though he asserted that handing over of
charge was reflected in the departure report of the regular
SHO, he simultaneously admitted that such departure report
was not available on the case file.
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21. The cumulative effect of the aforesaid admissions, omissions
and uncertainties emerging from the statement of PW-1
gives rise to arguable issues touching prior information,
compliance with statutory safeguards, maintenance of
contemporaneous record, identity of the fleeing person,
association of independent witnesses, and lawful assumption
of authority by the officer concerned. These aspects, prima
facie, assume material relevance while examining the
legality and sanctity of the alleged search and seizure
proceedings.
22. The Narcotic Drugs and Psychotropic Substances Act, 1985 is
a special penal statute containing rigorous provisions and
severe punishments. Because of the stringent consequences
flowing therefrom, compliance with the safeguards and
procedural mandates incorporated in the enactment is
required not merely in form, but in substance; not only in
letter, but equally in spirit. Any lapse touching the legality of
search, seizure, arrest or authorisation cannot be lightly
brushed aside, for procedural safeguards in such statutes are
often the very instruments by which fairness is preserved.
23. While enacting Section 42 of the NDPS Act, the legislature
consciously circumscribed the category of officers
empowered to undertake the intrusive functions
contemplated therein. It placed a clear statutory limitation
that only officers of the rank and description specified, or
otherwise duly empowered, may exercise such authority. The
State Government, through notification No. F. 1(3)
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FD/EX/85-I, dated 16-10-86, further specified who would be
authorised for the purpose.
24. Chapter V of the NDPS Act specifically contemplates that
only the officers named and empowered therein may issue
authorisation to a subordinate for arrest or search where
there exists reason to believe commission of an offence,
after reducing the information, if any, into writing. Likewise,
the power to personally conduct search or arrest under
Section 42 rests only with the officers mentioned therein
who possess reason to believe derived from personal
knowledge or prior information. Two foundational
requirements, therefore, emerge as indispensable: first, the
competence and rank of the officer; and second, the
existence of “reason to believe” based on lawful material.
The legislative design unmistakably indicates that not every
officer may exercise such drastic powers; only specified
officers of higher responsibility may do so, subject to
statutory discipline.
25. The notification No. F. 1(3) FD/EX/85-I, dated 16-10-86,
published in Rajasthan Gazette Part IV-C (II) dated 16-10-86
on page 269 reads as:-
S.O. 115.- In exercise of the powers conferred by
section 42 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (Act No 61 of 1985) the
State Government hereby authorise all Inspectors
of Police, and Sub-Inspectors of Police, posted as
Station House Officers, to exercise the powers
mentioned in Section 42 of the said Act with
immediate effect:
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[2026:RJ-JD:18674] (13 of 17) [SOSA-119/2026]Provided that, when power is exercised by Police
Officer other than Police Inspector of the are a
concerned such officer shall immediately hand
over the person arrested and articles seized to
the concerned Police Inspectors or S.H.O. of the
Police Station concerned.
26. Hon’ble the Supreme Court passed a landmark
judgment in the case of Roy V.D. Vs. State of Kerala
reported in AIR 2001 SC 137 wherein, in a similar
situation, it was observed as under:-
16. Now, it is plain that no officer other than an
empowered officer can resort to Section 41(2) or
exercise powers under Section 42(1) of the Narcotic
Drugs & Psychotropic Substances Act or make a
complaint under Clause (d) of Sub-section (1) of
Section 36A of the Narcotic Drugs & Psychotropic
Substances Act. If follows that any collection of
material, detention or arrest of a person or search of
a building or conveyance or seizure effected by an
officer not being an empowered officer or an
authorised officer under Section 41(2) of the Narcotic
Drugs & Psychotropic Substances Act, lacks sanction
of law and is inherently illegal and as such the same
cannot form the basis of a proceeding in respect of
offences under Chapter IV of the Narcotic Drugs &
Psychotropic Substances Act and use of such a
material by the prosecution vitiates the trial.
18. It is well settled that the power under Section
482 of the Cr.P.C. has to be exercised by the High
Court, inter alia, to prevent the abuse of the
process of any court or otherwise to secure the
ends of justice. Where criminal proceedings are
initiated based on illicit material collected on
search and arrest which are per se illegal and(Uploaded on 24/04/2026 at 11:51:00 AM)
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[2026:RJ-JD:18674] (14 of 17) [SOSA-119/2026]vitiate not only a conviction and sentence bases
on such material butal so the trial itself, the
proceedings cannot be allowed to go on as it
cannot but amount to abuse of the process of the
court; in such a case not quashing the
proceedings would perpetuate abuse of the
process of the court resulting in great hardship
and injustice to the accused. In our opinion,
exercise of power under Section 482 of the Cr.
P.C. to quash proceedings in a case like the one
on hand, would indeed secure the ends of justice.
Now, it is plain that no officer other than an empowered
officer can resort to Section 41(2) or exercise powers under
Section 42(1) of the Narcotic Drugs & Psychotropic
Substances Act or make a complaint under Clause (d) of
Sub-section (1) of Section 36A of the Narcotic Drugs &
Psychotropic Substances Act. If follows that any collection of
material, detention or arrest of a person or search of a
building or conveyance or seizure effected by an officer not
being an empowered officer or an authorised officer under
Section 41(2) of the Narcotic Drugs & Psychotropic
Substances Act, lacks sanction of law and is inherently illegal
and as such the same cannot form the basis of a proceeding
in respect of offences under Chapter IV of the Narcotic Drugs
&Psychotropic Substances Act and use of such a material by
the prosecution vitiates the trial.
27. It is well settled that the power under Section 482 of
the Cr.P.C. has to be exercised by the High Court, inter alia,
to prevent the abuse of the process of any court or otherwise
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to secure the ends of justice. Where criminal proceedings are
initiated based on illicit material collected on search and
arrest which are per se illegal and vitiate not only a
conviction and sentence bases on such material butal so the
trial itself, the proceedings cannot be allowed to go on as it
cannot but amount to abuse of the process of the court; in
such a case not quashing the proceedings would perpetuate
abuse of the process of the court resulting in great hardship
and injustice to the accused. In our opinion, exercise of
power under Section 482 of the Cr. P.C. to quash proceedings
in a case like the one on hand, would indeed secure the ends
of justice.
28. In the backdrop of the judgments noticed above, the
statutory notification issued by the State Government, and
the mandatory framework embedded in Section 42 of the
NDPS Act, this Court is prima facie of the opinion that non-
compliance with mandatory safeguards under the Act must
receive strict judicial scrutiny. Courts dealing with
prosecutions involving seizure under the NDPS Act are
required to proceed with heightened caution, for while
offenders should not escape through technical laxity, it is
equally imperative that no citizen is deprived of liberty
except through scrupulous adherence to procedure
established by law.
29. In the present matter, the legal issues raised by the
appellants are neither illusory nor cosmetic. They are
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substantial questions touching the legality of search,
competence of the officer, admissibility of disclosure
material, and sufficiency of evidence connecting the
applicants with the alleged contraband. If these contentions
ultimately find favour upon final hearing, they may have a
decisive bearing upon the sustainability of the conviction
itself. They therefore merit full consideration, comprehensive
re-appreciation of evidence, and anxious judicial
examination. In such circumstances, this Court is satisfied
that a fair possibility of benefit accruing to the appellants
cannot be ruled out, and the rigours of Section 37 of the
NDPS Act would not, at this stage, stand attracted in the
manner suggested by the prosecution.
30. 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-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.
31. 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.
SBCRLMSOSA No.337/2026
32. List the matter after two weeks.
(FARJAND ALI),J
152-Mamta/-
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