JUDGMENT 1. - The appeal has been preferred by the State of Rajasthan against the order passed by the Sub Divisional Magistrate, Chittorgarh dated November 30, 1970 acquitting the respondents Prabhu and Moti of a charge under Section 4/9 of the Opium Act. 2. The prosecution case is that on June 9, 1968 the Excise Inspector, Chittorgarh received information from a Mukhbir that some persons were likely to carry opium towards village Bijaipur during the night. The Excise Girdawar, Shri B.B. Mathur along with some other employees of the Excise Department laid an ambush on the road leading from Village Palchha to Bijaipur. At about 2.30 in the night Prabhu respondent was found carrying a plastic bag on his shoulder containing opium, which on weighment was found to be 9 kilograms 700 grams. According to the prosecution, Moti respondent was also going along with Prabhu and both of them were apprehended on the spot and the opium, which they were carrying, was seized. Samples of opium were taken in two packets, one of which was sent for chemical examination after being properly sealed. The remaining opium was placed in another packet and was separately sealed. The Chemical Examiner's report showed that the sample taken out from the plastic bag seized from Prabhu respondent was that of opium. After completing the investigation a challan was produced in the Court of the Sub Divisional Magistrate, Chittorgarh. A charge under Section 4 read with Section 9 of the Opium Act was framed against both the respondents, who denied the charge and claimed to be tried. The prosecution examined 13 witnesses and produced 10 Exhibits, while the respondents examined 4 witnesses in their defence. The learned Magistrate held that from the evidence of the prosecution witnesses, PW.7 to PW.13 it was fully proved that the sample, which was taken out from the plastic bag that was seized by the Excise Girdawar and his party, on chemical examination was found to contain opium. However, after a consideration of the evidence on record regarding the recovery and seizure of the said packet containing 9 kilograms 700 grams opium, the learned Magistrate held that the prosecution was not able to prove beyond doubt that the said recovery was made from the respondents and giving the respondents benefit of doubt, the learned Magistrate acquitted them of the offence under section 4/9 of the Opium Act. 3. 3. On behalf of the State the latter part of the findings recorded by the learned Sub Divisional Magistrate have been challenged and it has been urged in the first place that the learned Magistrate was not right in the casting a doubt on the veracity of the other prosecution witnesses only because the motbir witnesses PW.2 and PW.3 run hostile. It was submitted that the respondents should have been convicted on the basis of the evidence of the other witnesses PW.1, PW.4, PW.5 and PW.6, notwithstanding the fact that the motbir witnesses. PW.2 and PW.3 did not support the prosecution case. In the second place, it was urged that the learned Magistrate should not have given the respondents the benefit of doubt merely because their were some discrepancies between the statements of PW.1 Kaley Khan and PW.4 B.B. Mathur regarding the seizure memo Ex.P/1, more particularly as the respondents were caught red handed by the party consisting of officials of the Excise Department and they were apprehended on the spot and substantial quantity of opium was recovered from them. In the third place, it was submitted that the learned Magistrate did not at all consider the evidence of PW.5 Sabir ali and PW.6 Mohammed Yusuf,who fully supported the prosecution case and were eye witnesses of the fact of recovery and seizure of the plastic bag containing opium from Prabhu respondent. 4. On behalf of the respondents it was urged that there was no evidence at all so far as Moti respondent is concerned and that the recovery was not even alleged to have been made from him. As regards Prabhu respondent it was urged by the learned counsel that in view of the fact that independent witnesses who were motbirs of the alleged recovery had not testified to the fact that the said recovery was made from the two respondents and further because the prosecution evidence was discrepant, the finding of acquittal recorded by the learned trial Magistrate should not be interfered with by this Court in appeal. It was lastly urged by the learned counsel for the respondents that in case this Court comes to the conclusion that the guilt of the respondents or any one of them is proved, then it should also take into consideration that it would not be proper to send the respondents or any of them to jail after a lapse of eight years. 5. The learned trial Magistrate has considered the evidence on record on two aspects separately, namely about the fact of recovery and seizure and about taking of the sample of opium recovered and the chemical examination thereof. Regarding the second aspect of the matter, after considering the evidence of PW.7 Kan Singh, PW.8 Abdul Aziz, PW.9 Ahmed Noor Khan, PW.10 Bhatron Singh, PW.11 Allauddin, PW.12 Shanker Singh and PW.13 Surendra Nath, the learned Magistrate came to the conclusion that the samples taken from the packet (Article 1) recovered from Prabhu respondent were properly sealed in accordance with law and were handed over by PW.4 B.B. Mathur on June 10, 1968 to Ahmed Noor Khan PW.9, who was then Incharge of Bijaipur Police Station. The aforesaid samples were thereafter taken by PW.8 Abdul Aziz on June 12, 1968 from Bijaipur Police Station to the office of the Superintendent of Police, Chittorgarh and were handed over by him to Kan Singh PW.7, who was then working in the office of the Superintendent of Police, Chittorgarh. Then the aforesaid samples were sent by Surendra nath Agnohotri PW.13,who was Inspector in the office of the Superintendent of Police, Chittorgarh with constable Shanker Singh PW.12 to the office of the Chief Public Analyst, Jaipur for chemical examination. All these witnesses have testified that the aforesaid samples were properly packed and sealed and that the seals thereon were found intact by them. Ex. P/9 is the report of the Chemical Examiner and Chief Public Analyst, Rajasthan, Jaipur dated July 10, 1968, wherein it has been stated that the sealed packet were received in his office on June 18, 1968 and the seals thereof were intact and unbroken and were similar to the impression of the seal given on the covering letter. According to the Public Analyst the sample on examination was found to be of opium and its morphine contents were 8.44% . Thus from the aforesaid evidence it was proved that the sample from the seized plastic bag was of opium. According to the Public Analyst the sample on examination was found to be of opium and its morphine contents were 8.44% . Thus from the aforesaid evidence it was proved that the sample from the seized plastic bag was of opium. Learned counsel for the respondents has not contested the finding recorded by the learned Magistrate about the fact that the sample from the plastic bag in question was properly taken, sealed and found to contain opium by the Chief Public Analyst. 6. The other question which then remains to be declared is as to whether the packet in question was recovered from the respondents Prabhu and Moti or from any of them. PW.2 Bardhi Chand and PW.3 Chunni Lal, who were taken as motbir witnesses, have stated that they were taken by the Excise Gumeshta to a place on the road leading from Palcha to Bijaipur along with some employees of the Excise Department at about mid-night. They have also testified that they had signed the recovery memo Ex. 1, but they have stated that they did not know as to whether the packet containing opium was recovered from Moti or Prabhu respondent. Thus there is no doubt that the evidence of these two witnesses does not help the prosecution. However, there are four other witnesses who were present on the spot at the time when the recovery was made and the packet of opium was seized. PW.1 Kaley Khan stated that on receiving information that some people were likely to carry opium from Palchha towards Bijaipur, he along with Sabir Ali and party reached a place one mile from Palchha on the road leading to Bijaipur and at about 2 in the night they found Prabhu and Moti going towards Bijaipur. Prabhu was carrying a plastic bag on his shoulder and Moti respondent was going a few steps behind Prabhu. The opium was weighed and found to be 9 Kilograms 700 grams. PW.4 B.B. Mathur has also testified about the recovery of the packet containing opium from Prabhu respondent. According to B.B. Mathur the recovery memo was prepared by him and was signed by the two motbirs and the two accused persons, besides this witness. In the recovery memo Ex. The opium was weighed and found to be 9 Kilograms 700 grams. PW.4 B.B. Mathur has also testified about the recovery of the packet containing opium from Prabhu respondent. According to B.B. Mathur the recovery memo was prepared by him and was signed by the two motbirs and the two accused persons, besides this witness. In the recovery memo Ex. P/1, which according to PW.4, was prepared on the spot immediately after the alleged recovery, it has been stated that the plastic bag containing opium weighing 9 kilograms 700 grams was recovered from Prabhu son of Pyarey Dhakar and Moti respondent has been described only as an accomplice. PW.4 also proved the report Ex. P/5, which was submitted by him on June 10, 1968 to the Station House Officer, Police Station, Bijaipur, in which also it was mentioned that the plastic bag containing opium was recovered from Prabhu and which he was carrying that night on his shoulder. Thus the evidence of PW.4 considered along with the recovery memo Ex. P/1 and the report Ex.P/5 leaves no doubt that a plastic bag containing opium, which on weighment was found to be 9 kilograms 700 grams, was recovered from Prabhu respondent. Then there are the statements of two other witnesses PW.5 Sabir Ali and PW.6 Mohammed Yusuf, who were also members of the ambush party, which was organised by PW.4 B.B. Mathur for the purpose of apprehending the accused, who according to the information of the Mukhbir, were likely to carry opium towards Bijaipur. PW.5 Sabir Ali and PW.6 Mohammed Yusuf were both employed as Ziledars in the Excise Department and their consistent testimony is that they were members of the party of Excise Officials who had laid an ambush on the road leading from Palchha to Bijaipur and that while they were waiting there at about 2.30 in the morning Prabhu respondent was found coming from towards Prabhu and he was carrying a plastic bag on his shoulder and that he was apprehended at the spot and the opium which he was carrying was recover from him, which on weighment was found to be 9 kilograms 700 grams. Both of them have stated that Moti was found going a few feet behind Prabhu on that road. Both of them have stated that Moti was found going a few feet behind Prabhu on that road. According to these witnesses the Panchnana Ex.P/1 was prepared at the spot in their presence, but it was not signed by any other member of the party of Excise officials except Shri B.B. Mathur, although it was signed by the two motbir witnesses and the two accused persons. They have stated in cross examination that they were not asked to sign the Panchnama. They have also testified that the recovery memo Ex.P/1 was prepared on the spot and although it was dark, a lantern was brought from the nearby village and the Panchnama Ex. P/1 was prepared on the spot after the lantern was brought. Thus all these four witnesses are unanimous on the point that the plastic bag containing opium was recovered from Prabhu respondent. All of them have proved the factum of recovery and seizure of opium from Prabhu respondent and have clearly testified to that effect. 7. The learned Magistrate acquitted the two respondents, giving them the benefit of doubt, taking the view that the evidence of the other witnesses who have testified about the recovery of the packet of opium in question from Prabhu respondent was rendered doubtful, because of the fact that the two motbir witnesses have not supported the testimony of the employees of the Excise Department. He also relied upon the discrepancies in the statements of PW.1 Kaley Khan and PW.4 B.B. Mathur regarding the question as to whether Kaley Khan signed the recovery memo Ex. P/1. He also took the view that the evidence of PW.4 B.B. Mathur was shaky as he stated that a bag containing opium was also recovered from Moti respondent besides one from Prabhu. What the law requires is that the recovery should have been made in the presence of independent persons of the locality but if such witnesses have turned hostile, although they have admitted their signatures on the recovery memo Ex. P/1, then the mere fact that such witnesses have not supported the prosecution, cannot render the evidence of the remaining prosecution witnesses doubtful. In my view the evidence of the remaining prosecution witnesses should be considered basically in the light of the probabilities and the intrinsic credibility of such witnesses. P/1, then the mere fact that such witnesses have not supported the prosecution, cannot render the evidence of the remaining prosecution witnesses doubtful. In my view the evidence of the remaining prosecution witnesses should be considered basically in the light of the probabilities and the intrinsic credibility of such witnesses. I am unable to accept the contention of the learned counsel for the respondents that the evidence of the officials of the Excise Department should be discredited merely because they were employees of the State engaged in apprehending offences committed by persons in contravention of Excise laws. A similar attack on the evidence of police officials, taking part in a trap in a case of bribery, was repelled by their Lordships of the Supreme Court in Som Prakash v. State of Delhi, AIR 1974 SC 989 and it was observed:- "The appellant's general denunciation of investigating officers as a suspect species also ill merits acceptance. The demanding degree of proof traditionally required in a criminal case and the devaluation suffered by a witness who is naturally involved in the fruits of his investigative efforts, suggested the legitimate search for corroboration from an independent or unfaltering source human or circumstantial to make judicial certitude doubly sure. Not that this approach casts any pejorative reflection on the police officer's integrity, but that the hazard of holding a man guilty on interested, even if honest evidence may impair confidence in the system of justice. We are aware of the exaggerated criticisms of the police force as a whole and of the reluctance of the framers of the Criminal Procedure Code to trust statements recorded by the police investigators but these are, partly at least, the hangover of the British past." 8. I have closely scrutinised the evidence of PW.5 Sabir Ali and PW.6 Mohammed Yusuf and have found that their testimony is natural and cogent. No mortal attack has been made on the integrity or probability of the testimony of the aforesaid two witnesses. The only argument advance by the learned counsel for the respondents in respect of the testimony of these two witnesses was that they also formed part of the party of Excise officials, who had laid the ambush at the instance of PW.4 B.B. Mathur. These two witnesses were cross examined at length, but there is nothing which could affect the credibility or the veracity of their testimony. These two witnesses were cross examined at length, but there is nothing which could affect the credibility or the veracity of their testimony. The learned Magistrate has not at all considered the statements of these two witnesses, PW.5 Sabir Ali and PW.6 Mohammed Yusuf and has discredited the prosecution evidence on the ground that the evidence of PW.4 B.B. Mathur was shaky, as he has tried to show the recovery of opium both from Prabhu as well as from Moti respondents. PW.4 might have tried to implicate Moti respondent in addition to Prabhu, by stating that Moti was also found carrying opium. However, merely because PW.4 B.B. Mathur has tried to exaggerate the events and has tried to rope in Moti respondent, it cannot be a ground for rejecting his entire testimony with regard to the other accused Prabhu in respect of which his testimony is supported by the three other witnesses, Kaley Khan PW.1, Sabir Ali PW.5 and Mohammed Yusuf PW.6. Their Lordships of the Supreme Court in Bava Harjee Hansanand others v. State of Kerala, AIR 1974 SC 902 have observed that:- "Times out of number, this Court has pointed out that the maximum falsies or un-falsies in on ambits should not be mechanically applied in this country. The mere fact that the evidence of these witnesses was unsafe for convicting A.5 was no ground for rejecting the whole body of their testimony." 9. It was faintly suggested by learned counsel for the respondent's that either the opium was planted or that the real culprit might be somebody else and the respondents have been falsely implicated and in this connection learned counsel tried to make capital out of the discrepancy between the statements of PW.1 Kaley Khan and PW.4 B.B. Mathur, regarding the question as to whether the Prabhu Ex. P/1 was signed by PW.1 Keley Khan. It is not possible to accept the contention of the learned counsel that such a huge quantity of opium seizing 9 kilograms 700 grams would have been planted by the Excise Officials and further I find no reason at all from the evidence on record as to why the respondents should have been falsely implicated. No question was put in cross examination to any of the prosecution witnesses, including PW.4 B.B. Mathur, to suggest that there was any reason to falsely implicate the respondents. No question was put in cross examination to any of the prosecution witnesses, including PW.4 B.B. Mathur, to suggest that there was any reason to falsely implicate the respondents. It might be that Moti was incidentally going behind Prabhu while the latter was carrying the plastic bag containing opium and on the account alone he might have also been implicated. But there is no reason to hold that the opium in question could have been recovered by the party of Excise Officials from any other person and the respondents were falsely implicated. There is no doubt some discrepancy between the testimony of PW.1 Kaley Khan and PW.4 B.B. Mathur as to whether the signatures of Kaley Khan were obtained on the recovery memo (Panchnama). The learned Magistrate also relied upon this aspect in giving the respondents benefit of doubt. However, even if the testimony of Kaley Khan PW.1 is rendered doubtful on account of the aforesaid discrepancy, yet as I have already observed above, the evidence of the two other witnesses besides PW.4 B.B. Mathur, namely, PW.5 Sabir Ali and PW.6 Mohammed Yusuf appear to be quite consistent and reliable and does not appear to suffer from any infirmity, but the learned Magistrate did not at all consider their testimony. Accepting the evidence of these two witnesses, the conclusion is irresistible that the respondent Prabhu was found carrying huge quantity of opium on the fateful right when he was apprehended by the party of Excise officials, including the said witnesses, PW.5 and PW.6. Consequently, I hold that Prabhu respondent was guilty of committing an offence under Section 4 read with Section 9 of the Opium Act, as he was found transporting opium without a valid permit. For the reasons mentioned above, I am of the view that the learned Magistrate was not justified in acquitting respondent Prabhu and his conclusion in this respect was vitiated by mis-appraisement of evidence. 10. Learned counsel for the respondents also submitted that this Court should be slow in accepting an appeal against acquittal. In this respect, I may observe that the power of this Court while deciding an appeal against acquittal is the same as in respect of an appeal against conviction. 10. Learned counsel for the respondents also submitted that this Court should be slow in accepting an appeal against acquittal. In this respect, I may observe that the power of this Court while deciding an appeal against acquittal is the same as in respect of an appeal against conviction. I may usefully refer to the following observations made by their Lordships of the Supreme Court in Bhim Singh Rup singh v. The State of Maharashtra, AIR 1974 SC 286 :- "The age old controversy with regard to the width and scope of the powers of the appellate court in an appeal against an order of acquittal must be taken as settled by the decision of this Court in Sanwant Singh v. State of Rajasthan, 1961(3) SCR 120 : AIR 1961 SC 715 . It was hold therein that the appellate court has full powers to review the evidence upon which the order acquittal is founded and that the different phrases used in some of the judgements of this court like "substantial and compelling reasons", "good and sufficiently cogent reasons" and "strong reasons", were not intended to curtail the undoubted power of the appellate court to review the entire evidence and to come to its own conclusion in an appeal against acquittal. It was, however, emphasised that in exercising this power the appellate court, while dealing with an order of acquittal, should not only consider every matter on record having a bearing on the question of fact and the reasons given by the court below in support of its order of acquittal but it must express its reasons in its judgement which led it to hold that the acquittal is not justified. Following this decision this Court in Ramabhupala Reddy v. State of Andhra Pradesh, AIR 1971 SC 460 held that to the tests laid down in Sanwant Singh's case may be added another that the appellate court must bear in mind the fact that the trial court had the benefit of seeing the witnesses in the witness box and the presumption of innocence is not weakened by the order of the acquittal." 11. However, in the presence case I have reviewed and re-appraised the entire evidence on record and have considered all the reasons which led the learned Magistrate to give the respondent Prabhu benefit of doubt and have also enumerated above my reasons for holding that the acquittal of Prabhu respondent was not justified. I may add that it is not a case where two reasonable conclusions could be reached on the basis of the evidence on record so far as Prabhu respondent is concerned. As a matter of the fact the learned Magistrate has totally failed to consider the evidence of two important witnesses for the prosecution namely, PW.5 Sabir Ali and PW.6 Mohammed Yusuf and if the testimony of these two witnesses would have been conclusion which could be arrived at on the basis of a review of the entire evidence on record is that the offence is fully proved so far as respondent Prabhu is concerned. But there is no evidence to connect Moti respondent with the offence of carrying opium from one place to another, except the solitary statement of PW.4 B.B. Mathur. Merely because Moti was found by the witnesses going behind Prabhu at a short distance on the road, at the time when Prabhu was apprehended by the party of Excise officials, it cannot be held that Moti was an accomplice of Prabhu or that both of them were acting in collusion in carrying the packet of opium which was found placed on the shoulder of Prabhu by the witnesses. Thus the learned counsel for the respondents is right in submitting that the evidence on record does not lead to any inference as to the complicity of Moti in the commission of the offence of carrying of opium by Prabhu. It may also be noted in this connection that both the respondents are residents of different places and while Prabhu belongs to village Palchha in district Chittorgarh, Moti is a resident of Village Osra in Madhya Pradesh. Thus so far as Moti respondent is concerned, there is no reason to disagree with the finding arrived at by the learned Magistrate. 12. Thus so far as Moti respondent is concerned, there is no reason to disagree with the finding arrived at by the learned Magistrate. 12. Lastly, learned counsel for the respondents submitted that it could not be worth while sending the respondent Prabhu to jail after a lapse of about 8 years and in support of this contention he relied upon a decision of the It may be pointed out that in the Punjab High Court in The State of Punjab v. Dara, 1976 CrLJ 1226 case (4) relied upon by the learned counsel for the respondents merely 1300 grams of opium was recovered from the accused, but in the present case the respondent Prabhu was apprehended red-handed and huge quantity of opium weighing 9 kilograms and 700 grams was recovered from him and looking to the enormous quantity of contraband which he was found carrying, it would not be desirable to lightly deal with that respondent and in my view it is necessary under the circumstances of the present case, to award substantive sentence of imprisonment to Prabhu respondent. 13. In the result the appeal is allowed in part and while the order of the learned Sub Divisional Magistrate, Chittorgarh acquitting Moti respondent is upheld, his order in respect of Prabhu respondent is set aside Respondent Prabhu is convicted of the offence under Section 9 read with Section 4 of the Opium Act and he is sentenced to undergo rigorous imprisonment for a period of one year and pay a fine of Rs. 1000/- and in default of payment of fine to undergo rigorous imprisonment for a further period of three months. 14. The learned Chief Justice Magistrate, Chittorgarh is directed to take proper steps to get Prabhu respondent arrested for the purpose of undergoing the sentence hereby imposed upon him. The respondent Prabhu shall, however, be entitled to be a set off in respect of the period for which he has already remained in detention, either during a enquiry, investigation or trial. *******