C.M. Totla, J. - (1.) PETITIONER challenges his conviction for the offence of Section 4 read with 9 Opium Act recorded by Judicial Magistrate, Phalodi in Criminal Case No. 53/84 per judgment dated 05.10.90 and affirmed by learned Sessions Judge vide judgment dated 09.02.93 in Criminal Appeal No. 51/91 and petitioner is sentenced to two and half years rigorous imprisonment with fine Rs. 100/ - in default three months RI.
(2.) HEARD learned Counsel for the petitioner and learned Public Prosecutor. Brief facts as averred and disclosed during trial, per prosecution appear to be that S.H.O. Baap on 15.10.83 at about 1:15 PM was informed by Constable Ramu Ram, Chhog Singh that on information that Manohar Ram dealing in opium have come to village so these Constables alongwith two other Constables per direction to search and bring him -while doing so, arriving near house of Bhikha Ram observed Manohar Ram coming on cycle who seeing Constables turned back the cycle and on carrier at rear of cycle was a bag so Manohar Ram was chased who throwing away bag in plants of "Akda" ran away and could not be arrested. SHO PW/7 soon arriving there in presence of PW/3, 4 and others from below a little tree like bush of Akda found a 'katta 1 (cement bag) - in which in a white polythene was a black substance which on appearance and taste found opium. The substance weighed 7 kg 100 gm from of which sample of 30 gm separately taken and rest substance keeping in the same container sealed preparing memo and site plan.
(3.) ON the basis of this recovery, FIR No. 46/83 Ex.P/6 registered. SHO in course of investigation on same day 15.10.83 seized the cycle found near house of Ratan chand on carrier of which was a pair of shoes, preparing memo Ex.P/5 - cycle merchant from whom cycle taken on hire gave register of entries Ex.P/7 -appellant arrested - keeping articles in malkhana sample on 20.10.83 forwarded for delivering at laboratory on 02.11.83 obtaining receipt Ex.P/9, FSL Report subsequently received Ex.P/10.;