The prosecution must prove beyond reasonable doubt that the accused was in conscious possession of the contraband.

1. - By the judgment dated 22.6.1990, the learned Additional Chief Judicial Magistrate No. 1, Jodhpur had acquitted accused Devaram from the charge of Section 4/9 of the Opium Act, 1878. The State has filed an appeal against the judgment dated 22.6.1990 in this Court and in the appeal following arguments have been raised on behalf of the State of Rajasthan:

(1) that the learned Magistrate has erred in law and facts in acquitting the accused-respondent. I have heard both the parties on the above argument. The memo of appeal does not contain that the judgment of the lower court was against the law and facts, so this argument is not tenable.

(2) It has been argued by the State that the opium was recovered from the conscious possession of the accused-respondent but this argument has not been duly substantiated during the course of argument. The learned lower court has given a reasoned order that why it does not believe the prosecution regarding recovery of opium from the accused. The reasoning given by the learned lower court has not been rebutted by the advocate for the appellant.

(3) It has been argued on behalf of the appellant that samples remained intact till they reached FSL, Jaipur but on this ground also, the learned lower court has given the benefit of doubt to the prosecution. In this regard, I have heard both the parties. The learned lower court has written in its judgment that memo of recovery(Ex.P.1) does not contain the ink impression of seal by which the seized articles were sealed by the police. Similarly Ex.P.2 is the letter with which the samples were sent to the FSL for examination of the alleged contraband but that letter also does not mention the ink impression of the seal by which the samples were sealed on the spot. The learned lower court relying upon 1988 Cr.L.R.(Raj.) 697-Gopal v. State of Rajasthan has given the benefit of doubt in this respect to the accused because it was doubtful that the samples of contraband items remained sealed intact till they reached to FSL.

(4) It has been argued on behalf of the appellant that the learned lower court was in doubt about the seal which was used in sealing the samples. It has been argued on behalf of the State that whether the seal of Police Station, Udaimandir was used or any other seal was used, it is hardly material for the success of the case. In this regard we have perused the record of the learned lower court and the statements of the prosecution witnesses. To my mind, the learned lower court has properly given the benefit of doubt in this regard because sealing process of samples and the fact of seal remaining intact was not duly proved in the lower court.

(5) It has been argued on behalf of the appellant-State that it was the burden of accused to prove that how he came into the possession of the opium because conscious possession of opium was proved against the accused. It has also been argued on behalf of the appellant that the prosecution story did not contain any iota of doubt so accused should have been convicted by the lower court.

2. The accused was charged to possess without licence 65 gms of opium in his house at Jodhpur aon 7.9.2005 at 6 p.m. PW-1 Bhanwar Lal has not been able to identify the accused properly. He states in his court's statement that he cannot say that opium was recovered from Devaram. PW-2 Govind Singh was also declared hostile by the lower court and he also stated that no recovery of opium was made from the accused in his presence. PW-3- Bhawani Singh, Head Constable who supports the story of recovery but there are contradictions in his statement vis-a-vis statements of other witnesses. He says that opium was measured at a nearby shop, while other witnesses do not support this story.

3. PW-4 Govind Ram also supports the prosecution story to the effect that seized articles were sent by him to the FSL in a sealed cover but he also says that what was written in the seal, he does not know and he does not understand.

4. PW-5 Mota R