The Rajasthan High Court has granted suspension of sentence in an NDPS case where the accused was convicted solely on the basis of disclosure statements of co-accused, with no contraband recovered from his possession. The judgment underscores the necessity of corroborative evidence and the dangers of conviction based on conjecture.
Background & Facts
The Dispute
The appellant, Anopchand S/o Shivkaran Godara, was convicted and sentenced under the Narcotic Drugs and Psychotropic Substances Act, 1985, in Sessions Case No. 52/2021. The prosecution alleged that he was involved in the trafficking of narcotics, with contraband recovered from two co-accused persons. However, the contraband was not recovered from the appellant’s person, residence, or vehicle.
Key Facts
- The prosecution claimed the appellant maintained contact with the co-accused via mobile numbers 9813828107 and 9982243274.
- PW-13, the investigating officer, testified that mobile number 9813828107 was inactive during the relevant period.
- Although mobile number 9873519520 was active, no incoming calls were recorded on it.
- The trial court relied on disclosure statements of the co-accused to implicate the appellant.
- No independent evidence linked the appellant to the contraband, including no recovery of currency, phone records, or witness testimony placing him at the scene.
- The appellant has no prior criminal antecedents.
- He was sentenced on 20.05.2026 and is currently lodged in Sub Jail, Rajgarh, District Churu.
Procedural History
- 20.05.2026: Conviction and sentencing by the Special Judge, NDPS Act Cases, Rajgarh, District Churu.
- 03.07.2026: Criminal Appeal (SB) No. 1032/2026 filed before the Rajasthan High Court.
- 03.07.2026: Simultaneous filing of Criminal Misc. Application for Suspension of Sentence No. 1009/2026.
The Parties' Positions
For the Appellant: Learned counsel argued that the conviction was based entirely on the disclosure statements of co-accused, which are inadmissible as substantive evidence under Section 27 of the Evidence Act. He emphasized the absence of any direct or circumstantial evidence connecting the appellant to the contraband. He further submitted that the trial court failed to appreciate the testimony of PW-13 regarding the inactivity of the mobile number allegedly used for communication.
For the Respondent: The Public Prosecutor did not dispute the absence of evidence against the appellant but opposed suspension on general grounds of deterrence. However, he conceded that the appellant has no criminal antecedents and there is no risk of him absconding.
Relief Sought
The appellant sought suspension of the sentence pending disposal of his criminal appeal, along with release on bail subject to conditions.
The Legal Issue
The central question was whether the sentence in an NDPS case may be suspended during the pendency of appeal where the conviction rests on uncorroborated disclosure statements of co-accused and no direct evidence links the accused to the contraband.
Arguments Presented
For the Appellant
Learned counsel relied on the principle that conviction cannot be based on conjecture or surmise, citing State of Rajasthan v. Ram Lal and State of Punjab v. Baldev Singh. He argued that disclosure statements under Section 27 of the Evidence Act are admissible only to recover objects, not to establish guilt of a third party. He further submitted that the prosecution’s failure to establish active communication via mobile numbers fatally undermined the case. He emphasized the appellant’s clean record and the likelihood of prolonged delay in hearing the appeal due to heavy pendency.
For the Respondent
The Public Prosecutor did not contest the factual deficiencies in the prosecution case. He acknowledged the absence of criminal antecedents and the low risk of flight. However, he urged the Court to consider the seriousness of NDPS offences and the need to uphold deterrence, without offering any legal authority to refute the appellant’s arguments.
The Court's Analysis
The Court examined the nature of the evidence adduced by the prosecution and found it wholly insufficient to sustain a conviction. The judgment noted that the prosecution’s case hinged entirely on the disclosure statements of co-accused, which, under settled law, cannot be the sole basis for implicating a third party. The Court observed that the mobile number evidence, upon which the prosecution relied to establish communication, was rendered unreliable by the testimony of PW-13.
"The prosecution has failed to establish any direct or circumstantial link between the appellant and the contraband recovered from the co-accused. The reliance on disclosure statements, without corroboration, amounts to conviction on conjecture."
The Court further held that the appellant’s clean record, the absence of any risk of flight, and the substantial delay anticipated in the hearing of the appeal due to backlog were compelling factors in favour of suspension. The Court emphasized that suspension of sentence is not a matter of grace but a judicial discretion exercised in the interest of justice, particularly where the appeal raises substantial questions of law or fact.
The Court rejected the notion that the gravity of the offence alone justifies denial of suspension, especially where the conviction is legally unsustainable.
The Verdict
The appellant’s application for suspension of sentence under Section 430 BNSS was allowed. The sentence imposed by the Special Judge, NDPS Act Cases, Rajgarh, on 20.05.2026, is suspended pending disposal of the appeal. The appellant is released on bail upon executing a personal bond of Rs. 1,00,000 with two sureties of Rs. 50,000 each, to be approved by the trial court. He shall appear before the trial court every January until the appeal is decided, notify any change of residence in writing to both the trial court and the High Court counsel, and ensure sureties do likewise. Failure to appear will result in immediate cancellation of bail and reporting to the High Court.
What This Means For Similar Cases
Conviction Based on Disclosure Statements Is Insufficient
- Practitioners must challenge convictions in NDPS cases where the accused is implicated solely through co-accused disclosures without independent corroboration.
- The testimony of investigating officers regarding mobile number activity must be scrutinized for inconsistencies.
Suspension of Sentence Is Available Even in Serious Offences
- The gravity of the offence under NDPS Act does not automatically disqualify an accused from bail pending appeal.
- Clean record and absence of flight risk are decisive factors, even in drug-related cases.
Procedural Compliance in Bail Orders Is Mandatory
- Courts must specify clear conditions for appearance and address changes.
- Trial courts are directed to maintain separate attendance records for suspended sentences, which must not be counted in case disposal statistics.
