Rajasthan High Court - Jodhpur
Buta Singh vs State Of Rajasthan (2026:Rj-Jd:8908) on 17 February, 2026
Author: Farjand Ali
Bench: Farjand Ali
[2026:RJ-JD:8908]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 1547/2025
1. Buta Singh S/o Sh. Barkat Singh, Aged About 55 Years,
R/o Sandeep Nagar Street No. 01, Danewala Ps City
Police Malot Dist. Mukasar Punjab. (Now Presently Lodged
In Central Jail Hanumangarh. )
2. Bhupender Singh @ Bhinder S/o Sh Sukhdev Singh, Aged
About 34 Years, R/o Ward No.8, Deengarh Ps Sangaria,
Dist. Hanumangarh.(Now Presently Lodged In Central Jail
Hanumangarh. )
----Petitioners
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. V.K. Bhadu
For Respondent(s) : Mr. Sri Ram Choudhary, AGA
HON'BLE MR. JUSTICE FARJAND ALI
Order 17/02/2026
1. The instant application for suspension of sentence has been moved on behalf of the applicants in the matter of judgment dated 11.08.2025 passed by the learned Addl. District & Sessions Judge (NDPS Cases) Sangariya, District Sri Ganganagar in Sessions Case No.26/2019 whereby they were convicted and sentenced to suffer maximum imprisonment of ten years RI along with a fine of Rs.1,00,000/- paid by each of them and in default to further undergo six months RI under Sections 8/15, 29 of the NDPS Act.
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2. It is contended by the learned counsel for the appellants 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.
3. 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.
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 (Uploaded on 20/02/2026 at 01:48:29 PM) (Downloaded on 20/02/2026 at 09:48:09 PM) [2026:RJ-JD:8908] (3 of 8) [SOSA-1547/2025] 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 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 (Uploaded on 20/02/2026 at 01:48:29 PM) (Downloaded on 20/02/2026 at 09:48:09 PM) [2026:RJ-JD:8908] (4 of 8) [SOSA-1547/2025] 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 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, (Uploaded on 20/02/2026 at 01:48:29 PM) (Downloaded on 20/02/2026 at 09:48:09 PM) [2026:RJ-JD:8908] (5 of 8) [SOSA-1547/2025] remand the matter, or maintain the judgment, as the case may be.
12. 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.
13. Upon a thoughtful and circumspect consideration of the submissions advanced, this Court records the following findings for the limited purpose of adjudicating the present application seeking suspension of sentence:
a. At the outset, it is not in dispute that the appellant- applicant Butta Singh has undergone incarceration for a substantial period of five years and nine months, while the co-appellant Bhupendra Singh has remained in custody for a period exceeding five years in connection with the alleged recovery of 51.5 kilograms of poppy husk. The quantity attributed to the appellants, though categorized as commercial under the statutory framework, is only marginally above the threshold prescribed. The proximity of the alleged recovery to the statutory demarcation assumes significance, particularly when the precise and pure weight of the contraband remains a matter requiring re-evaluation and authoritative determination by this Court in appellate scrutiny.
(Uploaded on 20/02/2026 at 01:48:29 PM) (Downloaded on 20/02/2026 at 09:48:09 PM) [2026:RJ-JD:8908] (6 of 8) [SOSA-1547/2025] b. Furthermore, it has been vehemently contended that the search, seizure, and sampling procedures suffer from legal infirmities. The plea regarding procedural irregularities, if substantiated upon deeper examination, would strike at the very substratum of the prosecution case. Such objections are neither peripheral nor cosmetic; rather, they go to the root of the matter and necessitate meticulous judicial scrutiny. c. The issues so canvassed by the appellants are not merely arguable but prima facie substantial in character. They are imbued with sufficient force and legal tenability so as to warrant comprehensive re-appreciation of the evidence on record. The adjudication of these questions would inevitably entail a detailed and nuanced re-examination of factual and legal aspects, an exercise which cannot be summarily undertaken at this interlocutory stage.
c. This Court is thus of the considered opinion that the grounds urged are appreciable and call for definitive adjudication in appeal. Given the length of custody already undergone and the existence of substantial questions touching upon the integrity of the prosecution case, there emerges a reasonable and not illusory possibility that the ultimate determination may enure to the benefit of the appellants, including the prospect of acquittal. Thus, without expressing any conclusive opinion on the merits of the appeal, and confining the observations strictly to the adjudication of the present application, this Court finds that (Uploaded on 20/02/2026 at 01:48:29 PM) (Downloaded on 20/02/2026 at 09:48:09 PM) [2026:RJ-JD:8908] (7 of 8) [SOSA-1547/2025] the case presents circumstances warranting favourable consideration for suspension of sentence.
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 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:-
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.
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-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 (Uploaded on 20/02/2026 at 01:48:29 PM) (Downloaded on 20/02/2026 at 09:48:09 PM) [2026:RJ-JD:8908] (8 of 8) [SOSA-1547/2025] 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 47-Mamta/-
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