The central legal point established in the judgment is that the lack of recovery from the accused's possession and the circumstances of the alleged recovery are crucial in determining the accused's connection with the offense.

SUNIL KUMAR GARG, J.

( 1 ) THIS appeal has been filed by State of Rajasthan against the Judgment and order dated 5-2-87 passed by the Munsif and Judicial Magistrate, Rajgarh district Churu, in Cr. case No. 228/80 by which accused respondent was acquitted of the offence under Section 4 (1) (a) and 4 (2) of the Rajasthan Prohibition Act.

( 2 ) THE case of the prosecution is that on 29-10-1979 at about 2 P. M. P. W. 1 Nathu Lal, Excise Inspector, along with his party Kuldan P. W. 2, while going from Rampura then at Kumharon wali Johardi, one person seeing them running away and thereafter that man was apprehended and brought to the place wherefrom he ran away and in that place 28 bottles of illicit liquor were recovered and those were in a drum and when he was asked about his name then he told his name as Raj Pal Singh, accused/respondent. Farad of seizure was prepared as Ex. P. 1 and sample of that liquor was taken and after investigation, challan was filed against the accused respondent for the said offences.

( 3 ) CHARGES of Section 4 (1) (e) and 4 (2) of Rajasthan Prohibition Act were framed against the accused respondent by the trial Magistrate on 21-6-84, and on behalf of the prosecution 2 witnesses were produced and statement of accused under Section 313 Cr. P. C. was recorded and one witness was produced in defence.

( 4 ) AFTER conclusion of the trial, the learned Magistrate vide his judgment and order dated 5-2-87 acquitted the accused respondent holding inter-alia that nothing was recovered from the possession of the accused respondent, and, the place from the recovery was made, was open place, and therefore, accused respondent cannot be connected with so-called recovery and looking to this fact he acquitted the accused respondent.

( 5 ) AGGRIEVED from the judgment and order of the learned Magistrate, this appeal is filed by the State of Rajasthan. In this appeal, it has been argued on behalf of the State of Rajasthan by the Public Prosecutor that the findings of the learned Magistrate are erroneous one as the so-called recovery was made from the accused respondent therefore, he should have been convicted.

( 6 ) IN my opinion, learned Magistrate has given cogent reasons in coming to the conclusion that the accused respondent has not committed any offence as charged, as nothing was recovered from his possession. In these circumstances, the learned Magistrate acquitted the accused respondent for the said charges, by doing so he has committed no illegality and the order of acquittal passed by the learned Magistrate does not require any interference of this Court as the judgment of the learned Magistrate is based on correct appreciation of evidence and law.

( 7 ) HENCE, this State appeal is liable to be dismissed.

( 8 ) ACCORDINGLY, the State appeal is dismissed after affirming the judgment and order dated 5-2-87 passed by the learned Magistrate, Rajgarh, district Churu. Petition dismissed. .