Failure to prove the recovery memo and contradictions in witness statements can lead to the dismissal of the case against the accused.

( 1 ) THIS criminal appeal has been preferred under Section 378 (1) Cr. P. C. against the judgment and order dated 7. 3. 1983 passed by learned Judicial Magistrate, Siwana in Cr. Case No. 121/1980 whereby he has acquitted the accused of the alleged commission of the charge under Section 9 of the Opium Act.

( 2 ) THE prosecution story is that on 26. 4. 1977, the S. H. O. , police Station, Samdari, Tapaswi Lal alongwith two Constables, namely, nawal Kishore and Moti Singh were on "gast" duty. At about 9. 00 p. m. , they reached at Village Moja Majal. Two passengers belonging to vishnoi community were suspected and one of them was called. On query, the said person told that he was going to Village Kotdi. He disclosed his name as Harlal and was carrying a packet in his hand. The sho asked him what is contained in this packet. He told that it is some material. In the meantime, Constable Moti Singh and another person reached there. Har Lal ran away alongwith packet. He was chased and caught by all these three persons. He was searched in the presence of ram Singh, Ghishu Lal and Deva Ram and on search it was found that the packet contained opium which on measurement was found to be 1 kg. 600 grams. Out of the opium recovered, 35 grams of opium was taken out as sample and was sealed in a separate packet. The accused was found with one more piece of opium which was also sealed separately.

( 3 ) THE accused was arrested; Recovery memo was prepared; FIR was prepared and sent to police station, Samdari. On the basis of this, FIR was lodged and report was sent back to SHO. On spot, he started investigation. He collected the other evidence and presented challan. During trial, the prosecution recorded statements of 10 witnesses under Sec. 161 Cr. P. C. Out of these prosecution witnesses to prove the guilt, the prosecution has produced PW-6 SHO Tapaswi Lal, Constables pw-1 Nawal Kishore, PW-2 Motbira Deva and PW-3 Rama, Constables PW-4 Pratap Singh, PW-5 Har Lal Singh and PW-7 Shankar Singh before the trial court. Ram Singh and Ghishu Lal, independent witnesses, have not been produced. The constable Moti Lal, who chased the accused and caught hold alongwith Nawal Kishore though cited as prosecution witness, was also not produced.

( 4 ) LEARNED trial Magistrate on appreciation of evidence found that the statements of witnessws are contradictory to the recovery memo. PWs Deva and Rama have been declared hostile, therefore, the recovery has not been proved. He also noticed contradictions in the statement of the SHO Tapaswi Lal and Constables Pratap Singh and Har lal, prosecution witnesses. PW-4, PW-5 and PW-7 are witnesses for proving sample of opium. The trial Magistrate being not satisfied that the prosecution has proved the commission of offence, acquitted the accused.

( 5 ) THE prosecution having not been satisfied with the order of the trial court, preferred this appeal on the ground that the learned trial court has not legally appreciated the evidence and has come to erroneous conclusion for acquittal though prosecution has proved the case against the accused. Heard learned counsel for the parties and perused the record.

( 6 ) LEARNED counsel for the appellant has reiterated his submission as set-out in the memo of appeal contending that the learned trial magistrate has not appreciated evidence led by the prosecution correctly and acquittal of the accused is unjustified. It is admitted case of the prosecution that the recovery memo has not been proved. Out out of three motbir independent witnesses, two viz. Ram Singh and ghishu Lal have not been produced. The third witness PW-2 Deva has also not supported the prosecution story. Both the prosecution witnesses i. e. Dewa and Rama, who were examined to produce before the trial court to prove the recovery memo have been declared hostile.

( 7 ) ON the spot, there were three persons i. e. SHO Tapaswi Lal, nawal Kishore and Moti Singh. Constables Nawal Kishore and Moti Singh and one