STATE OF U.P. Vs. AZIZ

JUDGEMENT

(1.) THIS is an appeal on behalf of the State against the order dated 31 -12 -1971 of Sri Swami Dayal Upadhyay, Sub Divisional Magistrate, Kalpi acquitting Respondent Aziz under Section 9 of the Opium Act.

(2.) THE Respondent was prosecuted on the allegations that Mannilal Verma (PW, 3), Head Constable police station Kuntondh arrested Respondent Aziz on 2 -2 -1971 at about 2 P.M. when he was returning from Mela duty of Hadrup and was going to perform Mela duty at Harsinghpur in the presence of one Ganga Singh (PW 5) and on search two Tolas of opium was recovered from the right pocket of his Paijama. Since the Respondent had no licence to keep the opium he was prosecuted.

(3.) THE prosecution examined seven witnesses in support of its story including two witnesses of recovery. The Respondent produced no defence. The court below after considering the entire evidence on record came to the conclusion that two Tolas of article purporting to be opium were recovered from the possession of the Respondent. The court below, however, held that the statement of the Excise Inspector in the case was insufficient to prove that the recovered article was opium. Accordingly, the Respondent was acquitted.