Karamchand Alias Karma vs State Of Rajasthan (2026:Rj-Jd:6492) on 4 February, 2026

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Rajasthan High Court - Jodhpur

Karamchand Alias Karma vs State Of Rajasthan (2026:Rj-Jd:6492) on 4 February, 2026

1. The instant application for suspension of sentence has been moved on behalf of the applicant in the matter of judgment dated 17.01.2026 passed by the learned Special Judge, NDPS Act Cases (Addl. Sessions Judge), District Rajsamand in Sessions Case No.92/2022 whereby he was convicted and sentenced to suffer imprisonment of twelve years along with a fine of Rs.1,20,000/- under Section 8/20 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 05/02/2026 at 05:22:03 PM) (Downloaded on 05/02/2026 at 08:31:32 PM) [2026:RJ-JD:6492] (2 of 11) [SOSA-130/2026] to be appreciated again by this court being the first appellate Court. He contends that as per the definition given under Section (2) of the NDPS Act, only the flowering or fruiting tops of the cannabis plants (hemps) can be considered as Ganja. Now it is not discernible as to what was the exact weight of tops only and what was rest of the article. If the weight of the Ganja is below commercial quantity then the embargo contained under Section 37 of the NDPS Act is not applicable. 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 (Uploaded on 05/02/2026 at 05:22:03 PM) (Downloaded on 05/02/2026 at 08:31:32 PM) [2026:RJ-JD:6492] (3 of 11) [SOSA-130/2026] 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 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 (Uploaded on 05/02/2026 at 05:22:03 PM) (Downloaded on 05/02/2026 at 08:31:32 PM) [2026:RJ-JD:6492] (4 of 11) [SOSA-130/2026] 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 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 (Uploaded on 05/02/2026 at 05:22:03 PM) (Downloaded on 05/02/2026 at 08:31:32 PM) [2026:RJ-JD:6492] (5 of 11) [SOSA-130/2026] 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 irreversible risk, the court must proceed on the safer side by placing paramount importance on human dignity and personal liberty.

13. Upon careful perusal of the record, it is evident that the appellant is presently in judicial custody in connection with recovery of 32.350 Kg Ganja. Section 2 of the NDPS Act confines the definition of "ganja" strictly to the flowering or fruiting tops of the cannabis plant, expressly excluding seeds and leaves when they are not accompanied by such tops. Other parts of the plant, namely roots, stalks, stems, branches and allied vegetative material, do not fall within the purview of contraband under the NDPS Act.

14. A combined reading of the seizure memo and the testimonies of P.W.1 Yogendra Kumar and P.W.2 Bhanwar Lal reveals that the substance allegedly recovered predominantly consisted of leaves, stems, stalks, roots and dry straw of the cannabis plant. P.W.1, in clear terms, admitted during cross-examination that the major portion of the seized material was dry vegetative matter, while the presence and proportion of flowering or fruiting tops was neither specified nor quantified. Although the total weight of (Uploaded on 05/02/2026 at 05:22:03 PM) (Downloaded on 05/02/2026 at 08:31:32 PM) [2026:RJ-JD:6492] (6 of 11) [SOSA-130/2026] the seized substance has been shown as 32.350 kg, the record is conspicuously silent regarding the exact weight of the flowering and fruiting tops alone.

15. Neither the seizure memo nor the deposition of the seizing officer clarifies whether the flowering or fruiting tops were found accompanying the other parts of the plant or were recovered separately. In the absence of such foundational clarity, the entire recovered material cannot, as a matter of law, be automatically classified as "ganja" within the meaning of the NDPS Act. On the contrary, the material appears to substantially comprise leaves and other vegetative parts of the cannabis plant, commonly known as "bhang", which is an excisable article governed by the Rajasthan Excise Act.

16. Though there exists a legal exception whereby the entire plant may be treated as ganja if the flowering or fruiting tops accompany the remaining parts, the prosecution has failed to establish the applicability of such exception. No separate weighing of the tops and the remaining plant material was conducted, making it impossible to ascertain the actual quantity of contraband as defined under the NDPS Act. Consequently, it cannot be stated with certainty that the recovered substance constituted commercial quantity so as to attract the rigours of Section 37 of the NDPS Act.

17. Further, the evidence of P.W.1 discloses that six cartons and two plastic bags were recovered from the vehicle, all of (Uploaded on 05/02/2026 at 05:22:03 PM) (Downloaded on 05/02/2026 at 08:31:32 PM) [2026:RJ-JD:6492] (7 of 11) [SOSA-130/2026] which were opened and their contents mixed together before samples were drawn. Admittedly, no individual samples were taken from each carton or bag; rather, samples were drawn from the mixed substance and forwarded to the FSL. This procedure is in patent violation of Standing Order Nos. 1/1988 and 1/1989 issued by the Government of India. It is also undisputed that the samples were not drawn in the presence of a Magistrate, as required under Section 52-A of the NDPS Act, thereby rendering the sampling process legally suspect.

18. At this stage, it would be apposite to refer to and reproduce the relevant observations of this Court made in S.B. Criminal Misc. 3rd Bail Application No. 1162/2022; Ramchandra v. State of Rajasthan, decided on 27.05.2022, wherein the procedure relating to sampling under Standing Order No. 1/1989 issued under Section 52-A of the NDPS Act was elaborately dealt with. The relevant extract reads as under:

"4. Heard learned counsel for the petitioner and learned public prosecutor. Perused the material available on record. The argument that collection of samples was not proper and in accordance with the procedure of sampling as per Standing Order No. 1/1989 seems to be worth considering. Clause 2.1 to 2.8 of the Violation Order/ Instruction No.1 of 1989 dated 13.6.1989 issued by the Government of India under Section 52 A of N.D.P.S. Act are of relevance to the present set of facts and are as follows:

2.1 All drugs shall be classified, carefully, weighed and sampled on the spot of seizure.

2.2 All the packages/containers shall be numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic (Uploaded on 05/02/2026 at 05:22:03 PM) (Downloaded on 05/02/2026 at 08:31:32 PM) [2026:RJ-JD:6492] (8 of 11) [SOSA-130/2026] substances seized, shall be drawn on the spot of recovery, in duplicate, in the presence of search witnesses (Panchas) and the persons from whose possession the drug is recovered and a mention to this effect should invariably be made in the panchnama drawn on the spot.

2.3 The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances save in the cases of opium, ganja and charas (hashish) were a quantity of 24 grams in each case is required for chemical test. The same quantities shall be taken for the duplicate sample also. The seized drugs in the packages/containers shall be well mixed to make it homogeneous and representative before the sample (in duplicate) is drawn. 2.4 In the case of seizure of a single package/container, one sample in duplicate shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each package/container in case of seizure of more than one package/container. 2.5 However, when the packages/containers seized together are of identical size and weight, bearing identical markings and the contents of each package given identical results on colour test by the drug identification kit, conclusively indicating that the packages are identical in all respects the packages/container may be carefully bunched in lots of 10 package/containers except in the case of ganja and hashish (charas), where it may be bunched in lots of, 40 such packages/containers. For each such lot of packages/containers, one sample (in duplicate) may be drawn. 2.6 Where after making such lots, in the case of hashish and ganja, less than 20 packages/containers remain, and in the case of other drugs, less than 5 packages/containers remain, no bunching would be necessary and no samples need be drawn. 2.7 If such remainder is 5 or more in the case of other drugs and substances and 20 or more in the case of ganja \and hashish, one more sample (in duplicate) may be drawn for such remainder package/container.

2.8 While drawing one sample (in duplicate) from a particular lot, it must be ensured that representative sample the in equal quantity is taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot.

In simple words, if there were eight plastic bags marked A, B, C,...., H that allegedly contained contraband, then eight separate representative samples from each plastic bag marked A1, B1, C1,...., H1 respectively and eight separate representative samples as control (Uploaded on 05/02/2026 at 05:22:03 PM) (Downloaded on 05/02/2026 at 08:31:32 PM) [2026:RJ-JD:6492] (9 of 11) [SOSA-130/2026] samples from each plastic bag marked A2, B2, C2,....,H2 respectively should have been collected foinvestigation. It is an act of utmost recklessness and irresponsibility that even after collecting separate samples from each of the eight bags, the samples were again mixed together and submitted for investigation as one admixture. Since the samples were not collected in an accurate manner and the possibility of there being no contraband in any one or more of the eight bags cannot be obviated, the contraband can be assumed to be below commercial quantity and the embargo contained under Section 37 of the NDPS Act is not attracted.

In Noor Aga v. State of Punjab, reported in (2008) 3 JIC 640, Hon'ble the Supreme Court has held that when directions are issued by lawful authorities, then they take the form of legal sanction and the sub-authorities are under obligation to comply with the same. Statutory instructions have been held to be mandatory in nature by the Apex court in Union of India v. Azadi Bachao Andolan, reported in (2004) 10 SCC 1. The logical upshot of the above mentioned precedents is that there cannot be flagrant violation of rules/guidelines, such as those specified in the Standing Order No. 1/1989, and it should be incumbent on the officers of investigating agency to comply with these rules so that sanctity of physical evidence in such cases remains intact and an unfavourable reasoning is not drawn against the prosecution/agency. The seizing officer(s) in the present case has not paid any heed to these rules and the samples were not collected individually so as to represent each of the small plastic polythenes rather samples were drawn from the admixtures contained in the 4 plastic bags. All the issues raised are vital in nature and carry sufficient force and substance, such that if they are adjudicated in favour of the appellant, the possibility of acquittal cannot be ruled out. The grounds raised are appreciable and necessitate definitive adjudication, which would require meticulous examination and re-appreciation of evidence, and there exists a (Uploaded on 05/02/2026 at 05:22:03 PM) (Downloaded on 05/02/2026 at 08:31:32 PM) [2026:RJ-JD:6492] (10 of 11) [SOSA-130/2026] reasonable possibility that such exercise may ultimately enure to the benefit of the appellant.

19. 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.

20. 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 (Uploaded on 05/02/2026 at 05:22:03 PM) (Downloaded on 05/02/2026 at 08:31:32 PM) [2026:RJ-JD:6492] (11 of 11) [SOSA-130/2026] 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 176-Mamta/-

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Rajasthan High Court - Jodhpur