Rajasthan High Court - Jodhpur
Amareekram vs State Of Rajasthan (2026:Rj-Jd:9234) on 18 February, 2026
Author: Farjand Ali
Bench: Farjand Ali
[2026:RJ-JD:9234]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 1122/2025
In
S.B. Criminal Appeal No.1335/2025
Amareekram S/o Bhuraram, Aged About 47 Years, R/o Ward No.
10, Dabalibas Maulavi, Police Station Sadar Hanumangarh, Dist.
Hanumangarh (Raj.) (At Present Lodged In Central Jail,
Hanumangarh)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. J.K. Haniya
Mr. Vijay Raj Bishnoi
For Respondent(s) : Mr. Surendra Bishnoi, AGA
HON'BLE MR. JUSTICE FARJAND ALI
Order 18/02/2026
1. The instant application for suspension of sentence has been moved on behalf of the applicant in the matter of judgment dated 02.06.2025 passed by the learned Special Judge, NDPS Cases, Hanumangarh in Sessions Case No.13/2019 whereby he was convicted and sentenced to suffer imprisonment of twenty years RI along with a fine of Rs.1,00,000/- under Section 8/22 of the NDPS Act.
2. It is contended by the learned counsel for the appellant 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 (Uploaded on 20/02/2026 at 01:12:07 PM) (Downloaded on 20/02/2026 at 04:37:28 PM) [2026:RJ-JD:9234] (2 of 8) [SOSA-1122/2025] to be appreciated again by this court being the first appellate Court. The appellant was on bail during trial and did not misuse the liberty so granted to him; 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-applicant 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 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 (Uploaded on 20/02/2026 at 01:12:07 PM) (Downloaded on 20/02/2026 at 04:37:28 PM) [2026:RJ-JD:9234] (3 of 8) [SOSA-1122/2025] 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 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 (Uploaded on 20/02/2026 at 01:12:07 PM) (Downloaded on 20/02/2026 at 04:37:28 PM) [2026:RJ-JD:9234] (4 of 8) [SOSA-1122/2025] 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, 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 (Uploaded on 20/02/2026 at 01:12:07 PM) (Downloaded on 20/02/2026 at 04:37:28 PM) [2026:RJ-JD:9234] (5 of 8) [SOSA-1122/2025] irreversible risk, the court must proceed on the safer side by placing paramount importance on human dignity and personal liberty.
13. Upon a careful, reflective, and judicious evaluation of the rival submissions advanced at the Bar, this Court deems it appropriate to record the following prima facie observations, strictly confined to the adjudication of the present application seeking suspension of sentence:
(a) At the threshold, it remains undisputed that the appellant-applicant has endured incarceration for a protracted and substantial duration of more than six years.
The conviction arises out of the alleged recovery of certain medicinal preparations, namely 150 strips containing 1500 tablets of Trio-SR, 45 strips comprising 450 tablets of Foridol, and 14 strips containing 140 tablets of XL-Pam 0.5 (Alprazolam). The length of custody already undergone is neither fleeting nor negligible; rather, it assumes material significance while assessing the equities governing suspension of sentence pending appeal.
(b) It has been strenuously and emphatically urged on behalf of the appellant that the search, seizure, and sampling procedures were vitiated by palpable procedural irregularities. The challenge is not of a superficial or technical complexion; instead, it purports to impugn the very legality and sanctity of the foundational steps upon which the prosecution edifice rests. If such infirmities are ultimately substantiated upon thorough appellate scrutiny, they would corrode the substratum of the prosecution case (Uploaded on 20/02/2026 at 01:12:07 PM) (Downloaded on 20/02/2026 at 04:37:28 PM) [2026:RJ-JD:9234] (6 of 8) [SOSA-1122/2025] and render the conviction legally vulnerable. Objections of this genre cannot be dismissed as ornamental or ancillary, they penetrate to the root of admissibility, evidentiary integrity, and statutory compliance, thereby necessitating meticulous and circumspect judicial examination.
(c) The issues canvassed are not illusory, speculative, or bereft of substance. On the contrary, they appear, at least prima facie, to be arguable, substantial, and imbued with sufficient legal gravitas to warrant comprehensive re- appreciation of the evidentiary record. Their adjudication would inevitably entail a detailed, nuanced, and dispassionate reassessment of both factual matrices and legal principles, an exercise which transcends the limited compass of interlocutory consideration and must properly await final hearing of the appeal.
(d) In view of the foregoing, this Court is of the considered opinion that the grounds urged merit earnest and definitive adjudication in appeal. The considerable period of custody already undergone, coupled with the existence of substantial questions touching upon the procedural integrity and evidentiary sustainability of the prosecution case, engenders a reasonable though not pre-judged, possibility that the ultimate outcome of the appeal may enure to the benefit of the appellant, potentially extending even to acquittal.
14. Without expressing any conclusive or determinative opinion on the merits of the appeal, and confining these observations strictly to the disposal of the present application, this Court is satisfied that the cumulative (Uploaded on 20/02/2026 at 01:12:07 PM) (Downloaded on 20/02/2026 at 04:37:28 PM) [2026:RJ-JD:9234] (7 of 8) [SOSA-1122/2025] circumstances justify a favourable exercise of judicial discretion in suspending the sentence during the pendency of the appeal.
15. 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-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.
16. 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 (Uploaded on 20/02/2026 at 01:12:07 PM) (Downloaded on 20/02/2026 at 04:37:28 PM) [2026:RJ-JD:9234] (8 of 8) [SOSA-1122/2025] 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 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 54-Mamta/-
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