JUDGMENT : Bahadur, J. The petitioner have been convicted under Section 47(a) of the Bihar and Orissa Excise Act, and each sentenced to suffer rigorous imprisonment for one year; and also to pay a fine of Rs.1000/- each, in default to suffer rigorous imprisonment for three months. Their appeal has been dismissed by the court below, their convictions and sentences being upheld. 2. Shortly stated, the prosecution case is that on a confidential information that a truck load of N.E.P. Nepali Ganja was being taken towards Karhagola Ghat, the staff of the Excise Department and some other persons want to railway crossing on the night between 7th and 8th of October, 1962. They found a truck proceeding towards Karhagola Ghat at about 10 P.M. In spite of Signal to stop the truck, it proceeded on and the raiding party chased the same. Ultimately, the truck was surrounded and searched, and 32 bags of Nepali Ganja were found, on which these 21 petitioners were said to have been sitting, having covered themselves with tarpaulin. The petitioners were arrested and after investigation put on trial with the result as indicated above. 3. The defence of the petitioners was that they were not guilty and they had been implicated falsely merely on suspicion. 4. The Munsif Magistrate who tried these 21 petitioners along with three other persons, acquitted those three persons on the ground that there was no evidence against them. 5. Mr. Sri Narayan Sahay, appearing on behalf of these petitioners, has urged that there was absolutely no evidence to justify the conviction of these petitioners. His contention is that the courts below were in error in having differentiated in the case of these 21 petitioners from the other three accused who have been acquitted on the ground of want of evidence. Learned counsel has taken me through evidence and JUDGMENT :s of the courts below and I find that the conviction of these petitioners is based on the solitary evidence of the Assistant Sub-Inspector of Excise, namely, Bhubneshwar Kumar who was examined in the case as P.W. 7. His evidence as noticed has been dealt with in Paragraph 10 of the trial courts JUDGMENT : that P.W. 7 found that 21 persons were sitting on 21 bags of Ganja. In Paragraph 13 of the JUDGMENT :, the trial court has observed that the case against the accused persons no. His evidence as noticed has been dealt with in Paragraph 10 of the trial courts JUDGMENT : that P.W. 7 found that 21 persons were sitting on 21 bags of Ganja. In Paragraph 13 of the JUDGMENT :, the trial court has observed that the case against the accused persons no. 1 to 21 (these petitioners) had been proved beyond all manner of doubt. And the reasons given is that even though none of the prosecution witnesses had identified any of the accused persons in court, yet the fact that they were arrested and had been produced before the Sub-divisional Magistrate, Araria, on 8-10-1962, was sufficient identification of the accused persons. The trial court has further added that it could not be ignored that the accused persons were arrested during dark part of the night and so it was natural on the part of the prosecution witnesses not to identify them in court. It is indeed a very curious reasoning and unsupportable in law. It is now too well settled that the statement of witnesses in the first information report and before the police, and the identification before the Magistrate who held the test of identification parade, is not substantive evidence in the case and no conviction could be based upon such evidence. On the finding of the learned Magistrate himself none of the prosecution witnesses had identified any of the accused persons in court. There is, therefore, no substantive evidence to sustain their conviction. 5. The learned Additional Sessions Judge who heard the appeal does not appear to have appreciated this position. On the other hand, he took the view that as the 21 accused persons had been arrested at the spot sitting on the Ganja kept on the truck that was sufficient identification for the purpose of sustaining their conviction in the case. There can be no doubt that the point raised by learned counsel is well founded and must be accepted as correct. There is absolutely no evidence on which the conviction of these petitioners could be based. The evidence against the accused must be the evidence given by a witness in the witness-box. 6. For these reasons, I am of opinion that the conviction and sentence of the petitioners are unsustainable. The application is, therefore, allowed and the petitioners are acquitted. Application allowed