S. D. JHA, J. ( 1 ) CONVICT/appellant Vishnu s/c Rupaji through this appeal (Criminal Appeal No. 22 of 91) presented on 11. 1. 1991 by Shri V. R. Patidar, Advocate challenges his conviction under Section 8/18 of the N. D. P. S. Act, 1985 and sentence of ten years rigorous imprisonment and fine of Rs. 1 lac in default, further rigorous imprisonment for term of two years awarded by Sessions Judge, Mandsaur by judgment dated 4. 1. 1991. Another appeal No. 42/91 in respect of the same judgment was filed by Shri S. S. Verma, counsel for the appellant on 29. 1. 1991. Judgment would be delivered in Criminal Appeal No. 22/91 and Criminal Appeal No. 42/91 treated as superfluous. ( 2 ) CONVICT/appellant Vishnu s/o Rupaji was prosecuted by Police Malhargarh, District Mandsaur, Prosecution story is that on 21. 7. 1989 at about 9. 00 p. m. Police Officer B. S. Malviya. (P. W. 9) received information from an informer that opium was being manufactured at a place and that further information would be given to him when he reached the place. He communicated that information to his official superiors and accompanied with police constable Mohammed Hanif (P. W. 4), Hamraj, Lajjaram and Devilal (not examined by prosecution) started for the place at 9. 30 p. m. On the way they met the informer, who gave further details to B. S. Malviya, B. S. Malviya summoned Iqabal (P. W. 8) and Ramesh (P. W. 6) and appraised them of the information given by the informer and drew up Panchnama in this. B. S. Malviya then with police force and panch witnesses reached Kacharia Chandrawat forest where a brock flows by the wall of one Banshilal. At that place he saw fire burning and 2-3 persons sitting by the fire. When he reached the place the persons started running away of whom B. S. Malviya claimed to have identified appellate Vishnu. He could not identify the other companions. None could, however, be apprehended at the place and three culprits ran away. Near the burning fire B. S. Malviya found plastic pieces of bags with opium sticking to the same. The same were scraped and collected and seized vide panchnama, Ext. P/7. Opium was weighed at the place and samples taken. He then drew up FIR Ext. P/10 and gave information to his superior officers. Near the burning fire B. S. Malviya found plastic pieces of bags with opium sticking to the same. The same were scraped and collected and seized vide panchnama, Ext. P/7. Opium was weighed at the place and samples taken. He then drew up FIR Ext. P/10 and gave information to his superior officers. Next day he drew up map of the place, Ext. P/8. Sample was analysed and found to be opium. Anil Singh (P. W. 10) Station Officer Malhargarh Police Station on 28. 7. 1989 arrested accused Vishnu as per panchnama Ext. P/12. Investigation completed, challan was put up against the accused/appellant. ( 3 ) BEFORE the Sessions Judge accused/a appellant Vishnu pleaded not guilty to charge under section 8/19 of the N. D. P. S. Act, 1985 of being found in possession of 510 grams of opium with- out license and is having committed an offence punishable under section 8/18 of the N. D. P. S. Act, 1985. He denied all the material allegations. In cross-examination of the witnesses it was suggested on his behalf that there was enmity between him and the Investigation Officer B. S. Malviya as he had damaged motor-cycle tyre of the witness. He did not examine any witness in defence. The Sessions Judge by judgment under appeal found the accused/appellant guilty and convicted and sentenced him as already set out above. ( 4 ) AT the hearing of the appeal, Shri Patidar and Shri Verma, Advocates representing appellants submitted that prosecution evidence led in the case does not inspire confidence and does not satisfactorily connect the accused with the possession of opium. The evidence is discrepant and untrustworthy. They urged for acquittal of the accused. ( 5 ) SHRI Sudhir Bapat, learned Deputy Government Advocate representing the State, however, defended the impugned judgment ( 6 ) THE article seized in the case opium has not been disputed by the learned Counsel representing the appellants. The only point arising for determination is whether the appellant is proved to have been in possession of the opium seized in the case and guilty of the offence as alleged. ( 7 ) MATERIAL evidence on the point consists of Station Officer, B. S. Malviya of Police Station, Yashodharman Nagar Mandsaur (P. W. 9), Police Constable Mohammad Haneef (P. W. 4), Ramesh (P. W. 6) and Iqbal (P. W. 8 ). ( 7 ) MATERIAL evidence on the point consists of Station Officer, B. S. Malviya of Police Station, Yashodharman Nagar Mandsaur (P. W. 9), Police Constable Mohammad Haneef (P. W. 4), Ramesh (P. W. 6) and Iqbal (P. W. 8 ). Ramesh (P. W. 6) and Iqbal (P. W. 8) and panch witnesses, according to B. S. Malviya (P. W. 9) accompanied him to the place of incident. Surprisingly, Ramesh (P. W. 6) while testifying that three persons ran away from near the Kacharia Kunwa and opium was seized from the place does not speak a word about presence of the accused and had B. S. Malviya (P. W. 9) and Mohammed Haneef (P. W. 4) identified accused Vishnu as one of the culprits it would be safe to assume that they would definitely have spoken of this identification to this panch-witness in whose presence opium was seized from the alleged place of incident. ( 8 ) IQBAL (P. W. 8) denied that either he knew accused or that he accompanied B. S. Malviya to the forest. He was declared hostile by the prosecution and cross-examined. In cross-examination nothing has emerged to advance the prosecution case. That leaves the statement of B. S. Malviya and Mohd. Haneef. There is material discrepancy in the statements of B. S. Malviya and Mohd. Hanref (P. W. 4) on the pointas to how in the night accused was identified. B. S. Malviya (P. W. 9) in examination-in-chief as to how in the night he had identified Vishnu, replied that over the quarter near the wall of Banshilal an electric bulb was there and in its light he identified Vishnu. In his earlier examination he had stated about 2-3 people sitting by fire but he does not say that he identified accused Vishnu in the light of burning fire. As against this, Mohd. Haneef (P. W. 4) stated that of three persons sitting by the fire two ran away and on throwing torch light accused Vishnu was identified. The version given by this witness as to use of torch would show that there was darkness and without throwing torch light accused could not have been identified. This witness does not speak a word about electric bulb testified to by B. S. Malviya. ( 9 ) ACCORDING to both the witnesses, the accused was not identified when he was sitting by the fire side. This witness does not speak a word about electric bulb testified to by B. S. Malviya. ( 9 ) ACCORDING to both the witnesses, the accused was not identified when he was sitting by the fire side. It appears unbelievable that accused would run in the direction where there was electric light so that B. S. Malviya could see and identify him. ( 10 ) THE reason given by B. S. Malviya for identifying the accused also does not inspire confidence. All that he says is that because he was earlier in-charge of Malhargarh Police Station and knew the accused from before, he could identify. Now an officer-in-charge of the police station would know many people. Unless the precise reason for knowing accused Vishnu is given, the statement like the present with discrepancy as noted above would not advance the prosecution case. ( 11 ) ANOTHER unusual feature is that B. S. Malviya was in-charge of the Yashodharman Nagar Police Station while the place of alleged manufacture of opium falls in Malhargarh Police Station. The informers are usually conversant with location or areas and their jurisdiction with reference to police station. It is not clear how the informer gave information to B. S. Malviya not to the officer- in-charge of the Malhargarh Police Station himself. This is not to say this by itself is sufficient to destory the prosecution case. Alleged incident is dated 21. 7. 1989 but the main witness B. S. Malviya and Mohd. Haneef besides others were examined by Anil Singh (P. W. 10) on 30. 7. 1989. Accused was also arrested on 28. 7. 1989. There is no explanation as to why such long time was taken in arresting him when he had been identified in the night of 2 1. 7. 1989. ( 12 ) THE prosecution seeks to connect the accused on the basis of highly interested evidence of B. S. Malviya (P. W. 9) and Mohd. Haneef (P. W. 4 ). As already set out there is material discrepancy between the statements of these two witnesses as to how and in what kind of light they identified the accused in the dark. No opium has been seized from the accused himself. There is no explanation for delayed examination of the witnesses and arrest of the accused. Haneef (P. W. 4 ). As already set out there is material discrepancy between the statements of these two witnesses as to how and in what kind of light they identified the accused in the dark. No opium has been seized from the accused himself. There is no explanation for delayed examination of the witnesses and arrest of the accused. Considering all this, it would not be safe to convict the appellant on the evidence adduced in the case. The prosecution cannot be said to have proved its case beyond reasonable doubt. ( 13 ) AS a result of the aforesaid discussion, the appeal is allowed. Conviction and sentence imposed against accused/appellant are set aside and he is ordered to be released forthwith, if not wanted in any other case. Fine if paid be refunded. Appeal allowed. .