JUDGMENT 1. - This revision in preferred against the judgment dated December 28, 1980 of learned Sessions Judge, Balotra whereby the appeal of the petitioner was dismissed and his conviction and sentence under Section 9 of the Opium Act by learned Chief Judicial Magistrate, Jalore was upheld. The petitioner was sentenced to rigorour imprisonment for 3 years and a fine of Rs. 3.000/-, in default of payment of which further rigorous imprisonment for 3 months. 2. Briefly stated the facts are these. On 25th October, 1975, Amarsingh was the Station House Officer, incharge. Police Out Post, Bagra He with Pep Singh and Karnidan Gan tables went for a round. They reached near the house of Pannevkhan at about 7.30 p m. then they saw a jeep No. RSQ, 4706 coming from towards Jalore and going towards Bagra. They signalled the jeep to stop. Hiralal was the driver of the jeep He stopped the jeep for a moment then put it in the reverse gear and went towards Aakoli. Amarsingh suspected that the Opium was being smuggled in the jeep. Amarsingh with the help of torch light, saw the petitioner and Birda (co-accused who had been acquitted) in the jeep. They chased the jeep. After sometime Amar Singh detailed Pepsingh and Karnidan to search the jeep and returned to police out-post, Bagra and conveyed the information on telephone to Jalam Singh. Dy. S P. who with Mohan Singh, SHO and other police constables came to the police out-post and then in a jeep went in search of escaped jeep No. RSQ, 4706. They found Jeep No. RSQ4706 abandoned near Aakoli well. The jeep was searched, and 2.70 Qnt. of Opium was recovered from it. The sample of opium was sent for Chemical Examination and report of the Chemical Examiner confirmed that it was opium. Both the courts believed the identification evidence regarding the petitioner i.e. the testimony of Amarsingh P.W. 3, Pepsingh P.W. 5 and Karnidan P.W. 6. During the course of investigation, it was also found that jeep No. RSQ, 4706 belonged to the petitioner. 3. Learned appellate court, apart from the identification evidence was further of the opinion that as the opium was found in the jeep of the petitioner and, therefore, he was presumed to be in conscious possession of opium and was guilty under Sec. 4/9 of the Opium Act. 4. 3. Learned appellate court, apart from the identification evidence was further of the opinion that as the opium was found in the jeep of the petitioner and, therefore, he was presumed to be in conscious possession of opium and was guilty under Sec. 4/9 of the Opium Act. 4. I have heard learned counsel for the petitioner and learned Public Prosecutor for the State and gone through the entire record of the case carefully. 5. It is argued by learned counsel for the petitioner that the appellate court was in error in coming to a finding of the petitioners conscious possession of the opium, merely because, it was found in his jeep. He also contended that there is no satisfactory evidence on the record to trace the ownership of the jeep. It is further argued that the finding arrived at by the courts below is per verse and in utter disregard of the principles of appreciation of evidence. It has thereby occasioned a gross failure of justice. The prosecution case could not be proved beyond doubt, unless it was found that the petitioner was going in jeep No. RSQ 4706 and was seen and identified by the prosecution witnesses and, further the same jeep containing opium was recovered. 6. On the other hand, learned Public Prosecutor argued that this Court in revision would not go into questions of fact and in any case, it is proved by cogent and reliable evidence that the petitioner was seen going in a jeep by Amarsingh and the other two constables. The jeep was not stopped and the same jeep was subsequently recovered lying abandoned near Aakoli well and it contained opium. Of course, it was not disputed that jeep No. RSQ, 4706 was recovered near Aakoli well and it contained opium. 7. At the out set, it may be stated that learned appellate court was in error in coming to a conclusion that as the opium was found in the jeep of the petitioner, therefore, he was in conscious possession of opium. I am inclined to agree with this submission. Merely because the opium was found in a jeep, which belonged to the petitioner would not lead to the necessary inference or the conclusion that the petitioner was in possession of opium. There may be various circumstances under which the opium may be found in the jeep of the petitioner without his knowledge. Merely because the opium was found in a jeep, which belonged to the petitioner would not lead to the necessary inference or the conclusion that the petitioner was in possession of opium. There may be various circumstances under which the opium may be found in the jeep of the petitioner without his knowledge. In this regard, I may refer to the following two authorities : (1) Inder Sain v. State of Punjab ( AIR 1973 SC 2309 ):- Knowledge is an essential ingredient of the offence under Section 9 as the word possess connotes possess on with knowledge. The legislature has not intended to make mere physical custody without knowledge an offence. The prosecution need only show that the accused has dealt with the article, or has physical custody of the same or is directly concerned with it. Once it is so shown, the onus of proof is placed by virtue of Section 10 on the accused to prove by preponderance of probability that he did not knowingly possess the article." (2) Ram Rattan v. State of Rajasthan (1979 Cr. L R. (SC) 103) :- "There is nothing to indicate that the quantity of opium recovered from the house was in the conscious possession of the appellant or that even the house was in his possession as a tenant. As we have already slated, the opium was recovered when the appellant was not present even in the vicinity of the house much-less in the house itself. We are, therefore, of the opinion that the High Court committed an error of law in maintaining the conviction of the appellant." 8. It is an admitted position that the opium was recovered from the jeep, which was lying abandoned, the petitioner was not found with the jeep. It could not. therefore, be said that at the time of the recovery of the opium from the jeep, the petitioner was in possession of the jeep. Consequently, it is not established that the opium was recovered from the possession of the petitioner on this fact only. I am aware that this Court normally in a criminal revision will not re-appreciate the evidence. However, in this case, the evidence has not been appreciated in proper manner and somehow, it has been presumed that what the witnesses deposed, was the truth. I am aware that this Court normally in a criminal revision will not re-appreciate the evidence. However, in this case, the evidence has not been appreciated in proper manner and somehow, it has been presumed that what the witnesses deposed, was the truth. The inherent in probabilities in the prosecution evidence and glaring weakness of the case were not noticed. I. therefore, propose to re-apprise the evidence of the three witnesses. It may be stated that P.W. 6 Karnidan candidly admitted that he did not know any of the occupants of the jeep before the incident. The petitioner was not put to the test-identification and, therefore, the evidence of this witness is of no avail to establish that one of the occupants of the jeep was the petitioner. Amarsingh and Pepsingh also claimed to have identified the petitioner. It was the prosecution case and the statements of these two witnesses that apart from the petitioner, the other occupants of the jeep were Birda and Hira. However, P.W. 5 Pepsingh in the cross examination stated that he could not identify Birda and P.W 3 Amar Singh told him that one of the occupants was Birda. Thus, this witness could not stand the test of cross-examination as far as Birda was concerned. P.W 3 Amarsingh stated that he could not fully recognise Birda. Obviously, in this state of evidence, Birda was acquitted by the courts below. The infirmity which the courts below failed to notice was that these witnesses were not of sterling worth Either they did not recognise Birda and falsely implicated him or for some reasons, they obliged him. In any case, the credibility of these two witnesses is considerably shakan by this infirmity or their conduct. 9. This is not the case of prosecution that Amarsingh was expecting a jeep carrying opium. He suddenly saw the jeep. He signalled the jeep to stop and it stopped for a moment only and then was put in the reverse gear and driven away at a fast speed. 10. The first point for determination is whether in the circumstances Amarsingh and Pepsingh could have noted the number of the jeep. He suddenly saw the jeep. He signalled the jeep to stop and it stopped for a moment only and then was put in the reverse gear and driven away at a fast speed. 10. The first point for determination is whether in the circumstances Amarsingh and Pepsingh could have noted the number of the jeep. In my opinion it was not possible especially when it is an admitted position that the night was dark That apart, it appears that the number on the number-place was not legibly written as is evident from Ex P/2 wherein, it is stated that the figures on the plate were not legible as some of the figures had been erased. I, therefore, find that Amarsingh and Pepsingh are deposing falsely that they could read the number of the jeep while it was running away. 11. It is clearly established that at what time telephonic call was received in police station, Jalore. P.W. 10 Mohansingh, S.H.O. stated that he received a massage on telephone from Head Constable P.W. 3 Amarsingh at about 3:30 a.m However, he did not register the case but incorporated the information in Roznamcha. The prosecution, did not produce the Roznamcha and, therefore, in my opinion, it is not possible to hold that P.W. - Amarsingh informed Mohansingh on telephone that the petitioner, Birda and Hira were seen going in the jeep No. RSQ. 4706. This is vital infirm by in the prosecution case, which totally escaped the attention of the courts below Admittedly, P.W 3 Amarsingh returned to the police outpost. He was convinced that jeep No. RSQ. 4706 contained opium and its occupants were Hira, Birda and the petitioner. In that event, it was his duty to record the facts in the Roznamcha. His claim is that he did so but it was not produced, this is again serious infirmity. I am of the view that the non-production of the two Roznamcha costs a very serious doubt on the veracity of Amarsingh and Pepsingh. An adverse inference should be drawn that the Roznamcha entries were not made and in any case, the number of the jeep and the names of the occupants were not mentioned therein. 12. P W 3 Amarsingh stated that he informed Dy. S.P. Jalamsingh at about 12 30 a.m. Mohansingh and others reached police out-post, Begra at about 1.30 am. An adverse inference should be drawn that the Roznamcha entries were not made and in any case, the number of the jeep and the names of the occupants were not mentioned therein. 12. P W 3 Amarsingh stated that he informed Dy. S.P. Jalamsingh at about 12 30 a.m. Mohansingh and others reached police out-post, Begra at about 1.30 am. However, P.W. 10 Mohansingh stated that he received a massage at 3.30 a.m. This inconsistency coupled with the non-production of the Roznamcha would throw a lot of suspicion over the testimony of the two eye-witnesses that they saw and identified the petitioner in jeep or could note the number of the jeep. It is worthwhile to state that in Ex P/1, the recovery memo of the opium, the name of the petitioner or the other two occupants are missing. If Amarsingh knew the owner of the jeep and its occupant it would surely have been mentioned in Ex.P/1. It is only this much stated in Ex.P/1:- " ---------------csjs ds tko esa thi dh ykbZV ns[kh tksi isj ,dne rsth ls rkcwt dj rLdjh thi ds csjk vksj.kh;k Jh ihjk jke iq= lesyk iqjksfgr ds tko esa ,d dksus esa Fkkyksa ds chp rLdjksa }kjk Hkkxrs oDr NksM+h xb thi vkj0,l0D;w0 4706 feyh oks rLdjksaa dh ryk'k vkl ikl HkkxnkSM+ dj dh exj rLdj ugha feys oks Hkkx NwVsA " This further leads to the conclusion that both Amarsingh and Pepsingh could not see or its occupants when it was escaping. 13. P.W. 3 Amarsingh stated that he saw the jeep from 15 20 steps. He threw torch light on the jeep and in its light, he saw that Hira was driving the jeep. The petitioner was sitting between Hira and Birda. It is also admitted that the jeep was closed on three sides by certain. It is almost impossible to identify any occupant in such circumstances from in front of the jeep. It is also inherently improbable that from a side an occupant sitting in between the two other passengers could have been seers and identified in moment and that too from distance of 15-20 steps. Amar Singh saw the jeep coming towards Jalore. He had no reason to suspect that it contained opium. He must have casually signalled the jeep to stop. Amar Singh saw the jeep coming towards Jalore. He had no reason to suspect that it contained opium. He must have casually signalled the jeep to stop. It is hardly concaivable that any worthwhile attention would have been paid by Amarsingh or Pepsingh to the jeep and its number plate or the occupants. The jeep was reversed in a moment and was driving away. In such circumstances, torch light would be insufficient for identifying the occupants or the number of jeep from a distance of 15-20 steps in a moment. I have not the least doubt that when ultimately the jeep was traced to the petitioner, he was implicated in the case. At the time when the jeep was seen by Amarsingh and Pepsingh. they were in no position to identify its number or occupants and this part of story appears to be inherently improvable. It becomes all the more improbable in view of the other infirmities noticed in the prosecution case, namely legibility of the number-plate and non-product ion of the two Roznamcha, omission of the names of the petitioner, In Ex P/I ant Ex. P/2 and the quality of the two witnesses who are not 'of sterling worth. 14. Learned counsel for the petitioner did not claim the ownership of the jeep before this Court or challenge the order confiscating it. 15. In the result, I accept the revision petition and acquit petitioner Bhakhararam of the offence under section 9 of the Opium Act. The petitioner is in jail and he shall be released forthwith, if not required in any other case. However, the orders regarding the confiscation, of the jeep and the opium are maintained.Revision Accepted. *******