Short Note : The State has filed this appeal against the judgment dated 10th December 1973, passed by the Magistrate First Class. Jaora, in criminal case No. 556 of 1969, acquitting the respondent for an offence under section 9 (a) of the Opium Act. 2. Facts giving rise to this appeal, as per prosecution case, are that on 9-7-1969, the respondent was going to the Railway Station Jaora in the tonga of Noor Mohammad PW 1. On a prior information received by the police Shri Shivdutta Pathak A.S.I., accompanied by Shambhusingh constable P.W. 4, checked this tonga near Sarafa-chowki Jaora, when the respondent was found in possession of opium weighing 4 Kgs. and 90 Gms. On these facts the respondent was prosecuted, which on trial resulted in her acquittal. The defence of the respondent at the trial was of denial, though she did not dispute that at the relevant time she was going in that tonga. 3. Held: After heating arguments and going through the evidence and material on record, I have reached the conclusion that there is no merit in this appeal, which deserves to be dismissed, for want of sufficient evidence. It may be noted at the out-set that for reasons best known, the prosecution has not examined Shri Pathak A.S.I., an important and material witness who was present at the spot at the time of the seizure and investigated the matter. It may also be noted that out of the 2 Panch witnesses to the seizure of opium Ex. P-2, P.W. 3 Teka has become hostile and the other Panch witness has not been examined by the prosecution. It is not in dispute that the article seized was in fact opium, as has been proved from the evidence of Gajrajsingh PW 2. The witnesses now material for the decision in question are Noor Mohammd PW 1, the tonga driver and Shambhusingh the police constable, It appears from the statement of Noor Mohammad PW 1 who is a tonga driver, that at the relevant time the respondent was travelling in his tonga when it was intercepted by the police Head Constable when it reached 'Ghantaghar' wherefrom they were taken to the police station. He has also stated that from a 'Khaki' bag carried by the respondent 5 Kgs. of opium was seized. He has also stated that from a 'Khaki' bag carried by the respondent 5 Kgs. of opium was seized. However, this witness has admitted that no Panchnama regarding the seizure was prepared in his presence as he had put up his thumb impression on a blank paper. Another witness Shambhusingh PW 4. who is a police constable has deposed that on the relevant day he was posted at Jaora. Accompanied by Shri Pathak he went near Kamala Talkies where he intercepted the tonga driven by Noor Mohammad PW 1, in which the respondent was sitting, Further according to him in the presence of Shri Pathak and 2 Panch witnesses a bag containing opium, which the respondent had kept between her 2 legs was seized. In that bag, according to this witness, certain clothes were also found, about which Panchnama Ex. P-2 was prepared by Shri Pathak. 4. It was the duty of the prosecution to prove beyond reasonable doubt that the opium seized was actually seized from the conscious possession of the respondent. Admittedly the respondent was intercepted when she was going in a tonga, if she was carrying the bag containing opium and other clothes, which was actually seized, in order to connect the possession of the respondent with the opium, as such, it was necessary for the prosecution to produce the clothes seized along with the opium, so that a reasonable presumption could be drawn that the opium was in fact found and seized from the Possession of the respondent, but despite seizing the clothes as mentioned in the Panchnama Ex. P-2 it is not known why they were not produced and exhibited at the trial. Appeal dismissed.