1. - This appeal has been filed by the State against the judgment dated 1.2.91 passed by the Additional Sessions Judge, Chittorgarh.

2. The prosecution story in brief was that on a secret information the SHO Police Station Nimbahera on 27.7.88 went to the house of the respondent Siraj Ahmed in the township of Nimbahera situate in Idgah Masjid area and following recoveries in respect of opium were allegedly made :

(i) 4.750 kgs. opium in a bag.

(ii) 4 kg. opium in a bucket.

(iii) 31 kgs. liquid opium in a Jerrycane.

(iv) 21/2 bottles liquid opium (weight not known)

3. The Recovery Memo Ex.P/1 was prepared, the accused was arrested and after investigation the challan was filed under section 8/18 of the NDPS Act in the court of Sessions Judge, Pratapgarh from where the case got transferred to the said trial court. The accused pleaded not guilty to the charge. As many as 10 witnesses were examined by the prosecution in support of its case. DW-1 Ahmed Hussain was examined by the accused in his defence. According to DW-1 Ahmed Hussain the accused was not living in the parental house because his relations with his father were strained and the house in question was in the occupation of a brother of the accused who lived there with his family. The learned trial court then heard the arguments and delivered the judgment of acquittal against which the State has come in appeal.

4. I have heard the learned Public Prosecutor and have perused the evidence on record. I find no reason to draw a different conclusion than the one drawn by the learned trial court.

5. PW-3 Hamid Ali, PW-4 Ziauddin and PW-5 Amir were examined to prove that the house in question was in the possession of the accused but all the three denied the said contention of the prosecution and did not support the version that the house in question belong to the accused or was in his possession.

6. PW-1 Kanhaiya Lal and PW-2 Radhey Shyam were the `Motbir' witnesses in whose presence the recoveries, allegedly, were made. However, none of them supported the prosecution story in respect of the recoveries from the accused. Both of them stated to the effect that they were summoned by the SHO at the Police Station and were made to sign the Recovery Memo Ex.P/1 in the police station. There is, thus, no independent corroboration of the alleged recovery. Needless to say that in a serious case like this in which the accused has to be awarded a minimum sentence of 10 years rigorous imprisonment and a fine of Rs. 1 lac in the eventuality of finding of guilty, it is not safe to base conviction without slightest independent corroboration.

7. PW-6 Laxman Singh Chundawat, ASI and PW-10 Netrapal Singh SHO are the witnesses who have supported the prosecution story but even their testimony does not seem to be of sterling worth. In his statement PW-6 Laxman Singh Chundawat has made a clear mention that Kalu Ram who was with them procured the weighing material. However, PW-8 Kalu Ram does not say that he was present at the time of any recover or the weighing material was procured by him. Non - corroboration by Kalu Ram is a fact which cannot be lost sight of. The testimony of PW-6 Laxman Singh is self contradictory. He states that when they reached the house the accused was present and his permission was sought in respect of the proposed search. The witness states that after this permission from the accused they entered the house and the search took place. However, in the next breath he states that when they entered the house they found that the accused was sitting near the utensils and the process of cooking and preparation of opium was in progress. He further states that one Habib Khan was also present in the house. However PW-10 Netrapal Singh states that other person present was Amir Khan. Apart from the fact that the two statements are contradictory, it becomes important as to who Habib Khan and Amir Khan were? If they were not connected with the crime then they were the best witnesses in support