STATE OF M P Vs. GULAM NABI

JUDGEMENT

(1.) THIS appeal, filed under Section 378 (1) and (3), Criminal procedure Code, is directed against acquittal of the respondent for offence punishable under Section 9-A of the Opium Act (hereinafter referred to as the 'act'), by judgment dated 16-2-1982, passed by Shri N. P. Agarwal, Judicial Magistrate, First Class, burhanpur, in Criminal Case No. 440 of 1977.

(2.) PROSECUTION allegation against the respondent was that on 14-3-1977, while travelling by Indore Akola bus, he was found in possession of 10 Kgs. of opium at motor-stand, Burhanpur, which constituted an offence punishable under Section 9-A of the Opium Act. The opium was seized from respondent's possession vide Ex. P-2, which was recorded in the presence of two witnesses. Thereafter, the respondent was arrested. Report of the Assistant Chemical Examiner, Neemuch (Ex. P-1) indicated that the sample sent to them was found by qualitative and quantitative analysis to be opium within the meaning of Section 3 (ii) of the Act. After investigation, the respondent was put on trial as aforesaid.

(3.) DURING the trial, the prosecution examined P. W. 1 Shyambihari, P. W. 2 premchand and P. W. , 3 Rameshsingh to prove the seizure of opium from the respondent. P. W. 4 B. S. Chauhan was examined to prove recording of F. I. R. and sending of sample for chemical examination. The respondent denied everything, including seizure of ticket and opium from him. The learned Magistrate, relying on evidence of Chemical Examiner's report (Ex. P-1), held that the seized article was opium, to which the provisions of the Act applied. The learned Magistrate, however, found that evidence of P. Ws. 1 and 3, viz. , Shyambihari and Rameshsingh was cryptic and not sufficient to be accepted. The learned Magistrate refused to place any reliance on P. Ws. 2 and 4, viz. , Premchand and B. S. Chauhan, as they were police witnesses. That is how the respondent was granted benefit of doubt and acquitted.