JUDGMENT 1. - This is an appeal by the State against the order of acquittal of the respondent of the offence under Section 9 of the Opium Act, passed by the Munsif and Judicial Magistrate, First Class, Pokaran, dated 4-3-1977. 2. The prosecution case is that on 14-4-1975, at about 9.00, p.m., an information was received from a 'Mukhbar' that a pigeon coloured car is coming carrying opium from towards Jodhpur and proceeding towards Pokaran This report Ex P/5 was recorded in the Rojnamcha of the Police Station, Pokaran, and the Circle Officer Maniram (P.W. 1) along with the police party, proceeded towards village Lawan on Jodhpur road and the police party laid ambush and waited for the passing of the car. At about 2.00 a m., a car coming from Jodhpur side was tried to be stopped. The Head constables Laxmansingh, and Ramsingh signalled the car for stopping it and they also blew whistle, but the car did not stop. Thereupon, the Police Jeep was started and they chased the car. At a distance of about one mile the car took a turn towards left of the road in 'Kacha' and got stuck there. Soon thereafter they reached near the car and they saw that three persons had come out from the car. A search was taken of the car. According to the case, as developed at the trial, on being inquired the accused respondent opened the dickey of the car with his key. There were two Kattas containing opium. Thereupon the car was taken to the police station along with the opium. The opium seized was weighed and on weighing it was found that the weight of the two Kattas is 37 Kg and 500 grams. The seizure memo Ex. P/1 was prepared and the first information report Ex. P/3 was recorded. The arrival of the police party along with the car and the opium was also entered in the Rojnamcha at SL. No. 487 (Ex. P/6). The accused Vishansingh was arrested vide memo Ex. P/4 and the car was also seized vide memo Ex. P/2. After completion of the investigation, charge-sheet was presented against the accused. The accused pleaded not guilty to the charge. No. 487 (Ex. P/6). The accused Vishansingh was arrested vide memo Ex. P/4 and the car was also seized vide memo Ex. P/2. After completion of the investigation, charge-sheet was presented against the accused. The accused pleaded not guilty to the charge. At the trial the prosecution examined P.W. 1 Maniram, Circle Officer, P.W. 2 Jodhram, Head Constable, P.W. 3 Ramsingh, Motbir, P.W. 4 Swamp Singh, Constable, P.W. 5 Jagdish Chandra, S.H.O., P.W. 6 Kansingh, Constable, Jaisalmer Police Line, P.W. 7 Laxman Singh, Head Constable, and Prabhu Singh (P.W. 8). The statement of the accused was recorded, in which he denied the Prosecution case. After hearing the arguments, the learned trial Magistrate found the story of recovery of opium from the car to be a fake one and consequently found the accused not guilty of the offence under Section 9 of the Opium Act and acquitted him. 3. I have heard Dr. S.S. Bhandawat, learned Public Prosecutor, for the State, and Shri M.M. Singhvi, for the accused respondent, and perused the record of the case. 4. Dr. Bhandawat, learned Public Prosecutor, for the State, urged that the learned Magistrate has not correctly appreciated the evidence on record and the learned Magistrate has led unnecessary stress on the manner in which ambush was said to have been laid by the police party. He also did not believe the story of stucking of the car in sand. Mr. Bhandawat urged that the statements of Maniram, Jodharam, Jagdish Chandra, Laxmansingh and Prabhusingh are consistent on the point as to how the police party chased the car and when the car was stuck in the sand the police party reached that place and effected recovery of opium from the dickey of the car, when the dickey was opened by the accused with his key. He urged that so far as the statement of Motbir Ramsingh is concerned, no reliance can be placed on his statement and it is of no consequence that he has not been declared hostile. He had signed the recovery memo Ex. P/1, which clearly recited that the opium was recovered from the dickey of the car. So, his denial of the recovery from the dickey of the car in the circumstances is immaterial and nothing would turn on the statement of Swarupsingh (P.W. 4) also, when he has given incoherent version regarding the recovery of opium from the car. P/1, which clearly recited that the opium was recovered from the dickey of the car. So, his denial of the recovery from the dickey of the car in the circumstances is immaterial and nothing would turn on the statement of Swarupsingh (P.W. 4) also, when he has given incoherent version regarding the recovery of opium from the car. At one stage he stated that he does not know from which part of the car the opium was recovered, but further he stated that the opium was recovered from the car. Dr. Bhandawat urged that there is over whelming evidence on record to prove that the opium was recovered from the dickey of the car at the instance of the accused and the learned trial Magistrate did net correctly appreciate the evidence. Such an order of acquittal is liable to be interfered with in appeal. 5. Mr. Singhvi, learned counsel for the respondent, on the other hand, supported the judgment of acquittal recorded by the learned trial Magistrate and urged that the statements of Ramsingh, Swarupsihgh throw a flood of light on the truth of the Prosecution story. Ram Singh, Motbir, is a Government servant and is a driver in the P.W.D. Department. There was no reason for him to have come out with a different story, then what has been put forward by the prosecution. If the case is examined in the light of the statement of Ramsingh, then it would appear that no opium was recovered from the car and in fact the opium was recovered at two different pieces in two Kattas beneath the trees at some distance from the car. He pointed out that if the police had chased the car, it was impossible for the boarders of the car to have made good their escape. Besides that, he also submitted that if this story of the prosecution is true that the Ambassader car took a turn in Kacha and got stuck in the sand, then in order to substantiate it, it was the duty of the investigation officer to have prepared the site plan of the place where the car stopped and where first search was taken of the car. According to Mr. Singhvi, the learned Judicial Magistrate was justified in stressing upon this lacuna in the investigation of the ease. According to Mr. Singhvi, the learned Judicial Magistrate was justified in stressing upon this lacuna in the investigation of the ease. Besides that, he urged that Ramsingh has not been declared hostile and no permission was sought for cross-examining him. When such an opportunity of eliciting the truth by cross-examining him (Ramsingh) was not taken by the prosecution, then there is no reason to discredit his statement, as all other witnesses are interested witnesses being police personnel. He pointed out that apart from the statement of Ramsingh, Swarupsingh, constable, has stated that he does not know from which part of the car the opium was recovered. That also casts a doubt in the story of the prosecution that the opium was recovered from the dickey of the car. Mr. Singhvi also urged that apart from other contradictions, when on the basis of the statement of Ramsingh and Swarupsingh, coupled with other circumstances, particularly a lacuna in the investigation, the view taken by the Magistrate is possible and when that view is possible, then this Court should be slow to interfere in such an order of acquittal 6. I have given my serious and anxious consideration to the submissions advanced before melt is true that as many as five witnesses of the prosecution have come out with the consistent version of recovery of opium from the car, when the car was chased by the police. The whole question is whether this consistent version of five witnesses should he relied upon or not, in face of the statements of Ram Snigh and Swarupsingh. Apart from the contradictions in the statements of the witness as to whether Ramsingh was sent for or not, or he appeared at the place of his own, according to Ramsingh when the car stopped he thought that the car had over-turned, so he appeared at that place and another witness Laxmansingh has also stated that on hearing the commotion, the P.W.D. Roller driver Ramsingh bad arrived at the place, and that he drone the car to the Police Station, Ram Singh stated that it was he, who drove the car at the police station, whereas some witnesses have stated that the member of the police party drove the car. Thus, ignoring the contradiction, the question to be considers is whether reliance can be placed on the testimony of Ramsingh. Thus, ignoring the contradiction, the question to be considers is whether reliance can be placed on the testimony of Ramsingh. According to Ram Singh opium was not recovered from the car. The accused was first sent to the police station. Thereafter a search was made and the two Kattas of opium were found lying beneath the trees, one at a distance of 100 paundas, and the other at distance of 25 paundas from there. The witness stated that when foot-prints were followed, then the opium was recovered. It can not be said that Ramsingh his made completely a false statement. If his statement is viewed in the light of Swarupsingh's statements then this possibility cannot be ruled out that the opium might not have been recovered from the car, as Swarupsingh has also stated that he does not know from which part of the car the opium was recovered. However, there is omission in the first information report that it was the accused, who opened the dickey with his key. This omission assume significance and it can be considered to be an improvement by the prosecution witnesses over what has been recorded in the first information report. Besides that, admittedly no plan of the place, where the car got struck in the sand,was prepared. If the plan would have been prepared, it could have been examined as to whether the car took a turn in 'Kacha' and whether it was possible that the car would have stuck in the 'kacha', in view of the fact that the sand was so deep that it war not possible for the car to negotiate in 'kacha'. From the state of evidence, as is there on record, it cannot be said that the view taken by the learned Magistrate was such a view which was not at all possible. The whole ease of the prosecution could have been examined in the light of the statement of Ramsingh along with the other circumstances appearing in the case. It may be quite possible that the opium might not have been recovered from the dickey of the car and the other boarders of the car might have thrown away the Kattas. The whole ease of the prosecution could have been examined in the light of the statement of Ramsingh along with the other circumstances appearing in the case. It may be quite possible that the opium might not have been recovered from the dickey of the car and the other boarders of the car might have thrown away the Kattas. If the car was chased hot pursuit and if the Jeep reached to the car in no time, then it was not possible for the boarders of the car to have made good their escape and if the view taken by the Magistrate is possible, then it would not he possible for this Court to interfere in the order of acquittal recorded on the basis of that view. In this view of the matter I am not inclined to interfere in the order of acquittal. 7. Accordingly, this appeal having no force, is hereby dismissed.Appeal dismissed. *******