Mohan Lal vs State Of Rajasthan

2. The relevant facts giving rise to the prosecution are that on 13.11.1985, at 9.30 a.m., Bhanwarlal, PW-8, posted in the Court of the Magistrate, Osian, lodged an FIR, exhibit P-3, at Police Station, Osian informing that when he went to the Court to meet the night chowkidar, he was absent and it was found by him that locks of the main gate of the malkhana were broken and the goods were scattered. An information was given at the concerned police station, but as the details of the stolen articles could only be provided by the Criminal Clerk after he came from the Diwali holidays, an FIR was lodged for an offence under Section 457 IPC. After the courts reopened, the Presiding Officer, Ummed Singh, PW-6, on being informed, visited the premises, got malkhana articles verified and got an inventory prepared by Narain Singh, Criminal Clerk, in-charge of Malkhana, PW-4, on 16.11.1985, and it was found that 10 kgs. 420 gms opium and some other articles were stolen from several packets. In course of investigation, the accused Mohan Lal was arrested for the offence punishable under Sections 457 and 380 IPC. While in custody, it was informed by him that he had broke open the lock of the malkhana of the Court and stolen the opium and kept it in a white bag and concealed it in a pit dug by him underneath a small bridge situate between Gupal Sariya and Madiyai. His disclosure statement has been brought on record as Exhibit P- 14A. The accused-appellant led to discovery in presence of independent witnesses. The bag and cloth were taken out by the accused digging the pit and the bag contained 10 kgs and 200 gms of opium as is reflected from seizure memo, Exhibit P-6. 200 gms of opium was packed separately, sealed and sent for FSL examination. The remaining substance and other items were separately sealed. After receiving the FSL report and completing the investigation, chargesheet under Section 18 of the NDPS act and Sections 457 and 380 of the IPC was filed before the appropriate Court and eventually the matter travelled to the Court of Session. The accused pleaded not guilty and claimed to be tried.

3. The prosecution, in order to substantiate the charges, examined 14 witnesses. The main witnesses are Ummed Singh, PW-6, the concerned, Magistrate, Narain Singh, PW-4, the Criminal Clerk, in-charge of Malkhana, ASI, Achlu Ram, PW-13, ASI Hanuman Singh, PW-3, Koja Ram, PW-10, Gulab Singh, PW-14, and Su-Inspector-cum-SHO, Bheem Singh, PW-12 are witnesses to the recovery. The FSL report was exhibited as Exhibit P-14. The defence chose not to examine any witness.

4. The learned trial Judge, on the basis of the evidence brought on record, found the accused guilty of the charges and accordingly convicted him, as has been stated hereinbefore. In appeal, it was contended that incident, as per the prosecution, had occurred between 12th/13th November, 1985 on which date the NDPS Act was not in force, for it came into force only on 14.11.1985 and hence, the offence was punishable under the Opium Act, 1878, (for short 'the Opium Act'); that the alleged recovery was on 16.1.1985 while the appellant was in custody in connection with FIR No. 95 of 1986 and not in custody in connection with this case i.e. FIR No. 96 of 1985; that recovery of disclosure at the instance of the accused-appellant had not been proven and that he was never in possession of the said articles, and that there has been total non-compliance of Section 42 and 57 of the NDPS Act and, therefore, the conviction was vitiated in law. The High Court repelled all the submissions and affirmed the conviction and sentence as recorded by the learned trial Judge.

The present fact situation is absolutely different and, therefore, the said decision has no applicability to the case at hand.

29. In the instant case, on perusal of the evidence, it is clear that there has been substantial compliance of Section 57 of the NDPS Act and, therefore, the question of prejudice does not arise.

32. In view of the aforesaid analysis, we do not perceive any substance in this appeal and accordingly, the same is dismissed.