Chandra Prakash, J. - (1.) THIS is an appeal on behalf of the State against the order dated 31-12-1971 of Sri Swami Dayal Upadhyay, Sub-Divisional Magis-trate, Kalpi acquitting respondent Aziz Under Section 9 of the Opium Act.
(2.) THE respondent was prosecuted on the allegations that Mannilal Verma (P.W. 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 (P.W. 5) and on search two tolas of opium was recovered from the right pocket of his Pajama. Since the respondent had no licence to keep the opium he was prosecuttd. The respondent pleaded not guilty. He denied the recovery of opium from his possession. His defence was that he was that he was falsely prosecuted on account of enmity with the police. 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.
(3.) THE State has now come up in appeal. I have heard the learned counsel appearing on behalf of the State as also the learned counsel for the respondent and after going through the record I have come to the conclusion that the order of acquittal passed by the court below cannot be allowed to stand. Mannilal Verma (P. W. 3) proved the recovery of two Tolas of opium from the possession of the respondent on 2-2-1971 at 2 P.M. in the manner set up by the prosecution and his testimony was corroborated by Ganga Singh (P. W. 5). None of these witnesses had any motive to involve the respondent in the case. These witnesses had been believed by the court below and the court below has also held that two Tolas of article alleged to be opium was recovered from the possession of the respondent. This finding of fact was not challenged before me. N.P. Burman (P.W. 7) who was an Excise Inspector of the Opium Department stated that the recovered article in the case was opium and his opinion was based on examination of the colour of the recoyered article as also its scent. He also burnt q portion of the and the scent on burning also appeared to be opium. The ash on burning did not disclose any other article.;