HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Suspension of Sentence Application No.708/2026 in S.B. Criminal Appeal (Sb) No. 743/2026

1. Salman, Aged About 26 Years, R/o Hussain Chowk, P.s.

Rajtalab, Dist.banswara Rajasthan. (At Present Lodged In Central Jail, Udaipur)

2. Salman S/o Samandar, Aged About 25 Years, R/o Mandiya, Kalika Mata, P.s. Rajtalab, Dist. Banswara, Rajasthan (At Present Lodged In Central Jail, Udaipur)

----Appellants Versus State Of Rajasthan, Through P.p.

----Respondent For Appellant(s) : Mr. Vijay Kumar For Respondent(s) : Mr. NS Chandawat, PP HON'BLE MR. JUSTICE FARJAND ALI

Order

18/04/2026

1. The instant application for suspension of sentence has been moved on behalf of the applicants in the matter of judgment dated 10.04.2026 passed by the learned Special Judge, NDPS Cases, District Banswara in Sessions Case No.06/2022 whereby they were convicted and sentenced to suffer maximum imprisonment of 1 year under Sections 8/21 of NDPS Act along with fine and default sentence.

2. 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.

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 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.

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 appropri