C.M.TOTLA, J. - (1.) THE appeal challenges conviction and sentence to appellant as per judgment dated 07.08.1989 in Sessions Case No. 9/86 before the Court of Additional District and Sessions Judge No. 2, Jodhpur as under: (1) for the offence of Section 18 NDPS Act -10 years' rigorous imprisonment and fine of Rs. 1 lac and in default one year simple imprisonment, (2) for the offence of Sections 457 and 380 IPC -for each 3 years rigorous imprisonment and fine of Rs. 100/ -, in default one month simple imprisonment. Substantive sentences to run concurrently and for default conjunctively.
(2.) HEARD learned Counsel for the appellant and learned Public Prosecutor. Brief relevant facts as per prosecution are that on 13.11.1985 at 9.30 O'clock, morning one Bhanwarlal PW 8 posted in Magisterial Court, Osian, lodging written report Ex.P -3 at Police Station, Osian, informed that on that morning, he went to Court to meet night chowkidar Maga Ram who not found there and broken were locks of main gate and malkhana of Court and in malkhana, goods were scattered. This report Ex.P -3 mentions that on searching Maga Ram, it was revealed that he is not present since last night and the details of stolen articles can be provided only by criminal clerk who is informed as these days are Deepawali holidays. Registered on this report FIR No. 96/85 Ex.P -3 for the offence of Section 457. It appears that on November 13/14, was Deepawali holiday and the presiding officer PW 6 on being informed arriving 14.11.1985 visited premises and got malkhana articles verified and inventory prepared by concerned clerk PW 4 on 16.11.1985 which forwarded to police same day. It was found that about 10 kg 420 gm opium and some petty items were stolen from several packets.
(3.) APPELLANT accused Mohanlal arrested in other FIR No. 95/85 -for the offence of Sections 457 and 380 IPC -disclosed to SHO PW 12 that in the night of Deepawali, he breaking open lock of malkhana of the Court, had stolen opium and 'Tehmel' (tehmed -a cloth normally weared while sleeping or in easy position) and the opium in a white bag (polythene cover) is concealed by him in a pit dug by him below a 'Puliya' (small bridge) on way from Gupal Sariya to Madiyai -memo of this information is Ex.P -14A and as per disclosure and at the instance of appellant in presence of independent witnesses, bag and tehmel recovered which were taken out digging the pit by appellant himself and the bag contained 10 kg 200 gm of opium -memo of this recovery is Ex.P -6. Separating sample of 200 gm the sample and remaining substances and tehmel also separately sealed. In proceedings for identification of 'Tehmel' conducted before the Judicial Magistrate PW 5, the same was identified by clerk PW 4 -memo of identification being Ex.P -4.;