The evidence of prosecution witnesses, excluding hostile motbir witnesses, can be sufficient to prove an offence, and the failure of the trial court to consider the evidence of important prosecution witnesses can be a ground for setting aside an acquittal.

1. - The appeal has been preferred by the State of Rajasthan against the order passed by the Sub Divisional Magistrate, Chittorgarh dated November 30, 1970 acquitting the respondents Prabhu and Moti of a charge under Section 4/9 of the Opium Act.

2. The prosecution case is that on June 9, 1968 the Excise Inspector, Chittorgarh received information from a Mukhbir that some persons were likely to carry opium towards village Bijaipur during the night. The Excise Girdawar, Shri B.B. Mathur along with some other employees of the Excise Department laid an ambush on the road leading from Village Palchha to Bijaipur. At about 2.30 in the night Prabhu respondent was found carrying a plastic bag on his shoulder containing opium, which on weighment was found to be 9 kilograms 700 grams. According to the prosecution, Moti respondent was also going along with Prabhu and both of them were apprehended on the spot and the opium, which they were carrying, was seized. Samples of opium were taken in two packets, one of which was sent for chemical examination after being properly sealed. The remaining opium was placed in another packet and was separately sealed. The Chemical Examiner's report showed that the sample taken out from the plastic bag seized from Prabhu respondent was that of opium. After completing the investigation a challan was produced in the Court of the Sub Divisional Magistrate, Chittorgarh. A charge under Section 4 read with Section 9 of the Opium Act was framed against both the respondents, who denied the charge and claimed to be tried. The prosecution examined 13 witnesses and produced 10 Exhibits, while the respondents examined 4 witnesses in their defence. The learned Magistrate held that from the evidence of the prosecution witnesses, PW.7 to PW.13 it was fully proved that the sample, which was taken out from the plastic bag that was seized by the Excise Girdawar and his party, on chemical examination was found to contain opium. However, after a consideration of the evidence on record regarding the recovery and seizure of the said packet containing 9 kilograms 700 grams opium, the learned Magistrate held that the prosecution was not able to prove beyond doubt that the said recovery was made from the respondents and giving the respondents benefit of doubt, the learned Magistrate acquitted them of the offence under section 4/9 of the Opium Act.

3. On behalf of the State the latter part of the findings recorded by the learned Sub Divisional Magistrate have been challenged and it has been urged in the first place that the learned Magistrate was not right in the casting a doubt on the veracity of the other prosecution witnesses only because the motbir witnesses PW.2 and PW.3 run hostile. It was submitted that the respondents should have been convicted on the basis of the evidence of the other witnesses PW.1, PW.4, PW.5 and PW.6, notwithstanding the fact that the motbir witnesses. PW.2 and PW.3 did not support the prosecution case. In the second place, it was urged that the learned Magistrate should not have given the respondents the benefit of doubt merely because their were some discrepancies between the statements of PW.1 Kaley Khan and PW.4 B.B. Mathur regarding the seizure memo Ex.P/1, more particularly as the respondents were caught red handed by the party consisting of officials of the Excise Department and they were apprehended on the spot and substantial quantity of opium was recovered from them. In the third place, it was submitted that the learned Magistrate did not at all consider the evidence of PW.5 Sabir ali and PW.6 Mohammed Yusuf,who fully supported the prosecution case and were eye witnesses of the fact of recovery and seizure of the plastic bag containing opium from Prabhu respondent.

4. On behalf of the respondents it was urged that there was no evidence at all so far as Moti respondent is concerned and that the recovery was not even alleged to have been made from him. As regards Prabhu respondent it wa