Ram Labhaya J.- The petitioners were con­victed by Mr. M. K. Chaudhuri, Magistrate, 1st Class, Dibrugarh, under S. 6 (a), Assam Opium Prohibition Act of 1947. They were sentenced each to undergo rigorous imprisonment for 3 years and to pay a fine of Es. 100 each and in default of pay­ment of fine to further rigorous imprisonment for 2 months. Their appeal was dismissed by the Sessions Judge, U.A.D. This petition of revision is directed against the order of the learned Sessions Judge confirming their convictions and sentences. [2] The petitioners are brothers. They lived in . the same house. Their house was searched on 20-11-1949 by the Excise Inspector K. C. Saikis. The search was conducted with due formalities in the presence of independent witnesses. As a result of the search the Inspector first seized 4. pieces of papers (Bxs. 1-4). It was the prosecution case that these pieces of papers were memos of accounts show­ing payments to two persons Ninke and Bapung two notorious smugglers, who had been bound down under S. 11, Assam Opium Prohibition Act. The residential portion of the house of the accused was enclosed by a tin sheet fencing. In the south- -west corner of the enclosed courtyard, there was a heap of bricks. One of these bricks had a suspicious look. It was picked up by the Excise Jamadar and shown to the Excise Inspector in the presence of the witnesses. The Excise Inspector threw that brick against same hard substance. It broke and it was found that it contained if seer of opium. The opium was wrapped in a paper. There was also a linen covering and moulten wax had been poured on it in such a manner that the packet looked like an ill baked brick. [3] The recovery of opium from the courtyard of the petitioner is admitted. The contention raised is that opium was not proved to have been in the conscious possession of the petitioners and that their convictions were not sustainable in law. [4] The learned Sessions Judge came to the conclusion that planting of the opium by someone from outside was excluded by the circumstances-of the case. The quantity recovered is large. It is of a substantial value. It would not be easily procurable. It would not be anybody's worth his while to procure such a quantity of opium for purposes of planting. Mr. The quantity recovered is large. It is of a substantial value. It would not be easily procurable. It would not be anybody's worth his while to procure such a quantity of opium for purposes of planting. Mr. Ghosh has not challeng­ed this view of the learned Sessions Judge and , we think he was right in the conclusion that the opium recovered was not placed in the courtyard of the petitioners by someone from outside as-was suggested in the Courts below. [5] The learned Sessions Judge did not agree with the trial Magistrate that Bxs. l-4"indicated dealings of the petitioners with the two smugglers of repute-Bapung and Nanke-who had been bound down under S. 11, Assam Opium Prohibi­tion Act. The ground on which this view prevailed with him was that there was nothing to show that the two persons referred to in the documents-were smugglers bearing those names. The learned r Government Advocate did not seem to be satisfied with this view but he could not challenge it on any reasonable basis. The learned Sessions Judge was justified in not regarding mere names as sufficient proof of the fact that the persons referred to were the smugglers. Other persons than these smugglers could bear those names and this fact is not disputed. We have no reason to ' differ from the learned Sessions Judge in the view that he has taken of these documents. [6] The only other evidence in the case is of the recovery of opium from an enclosed courtyard of the petitioners under circumstances described above. The learned Sessions Judge was of the view that recovery of the opium from the court­yard of the petitioners constitutes proof of con­scious possession of the opium on the part of the two petitioners. He took into consideration the skilful manner in which the opium was concealed. The device adopted was no doubt new and cle­ver. The person placing it there had undoubtedly guilty knowledge. His possession would undou­btedly be conscious possession. But the question is whether both the brothers were in conscious possession of the opium recovered from the court­yard belonging to them. A barber was admittedly living in the compound of the house. The learned Sessions Judge observed that it had not been brought out that he bad access to the place from where the camouflaged packet of opium was re-covered. A barber was admittedly living in the compound of the house. The learned Sessions Judge observed that it had not been brought out that he bad access to the place from where the camouflaged packet of opium was re-covered. But; even if he had access, he would not have the required amount of control over the courtyard from where the opium was recovered. The learned Sessions Judge has confused posses­sion and control of the courtyard with the possession of opium, The question was whether the barber living in the same compound had access to the courtyard. If be had and could place the opium there without the knowledge of the petitioners, he would have conscious posses­sion of the opium notwithstanding the fact that the courtyard where the opium was placed was not in his possession. The prosecution evidence does not show that the barber had no access to the courtyard. The learned Government Advocate has not been able to above from the prosecution 'evidence that it was not possible for the barber living in a part of the house to place the opium there. So long as that possibility is not excluded, it cannot be said that the opium was in possession of the petitioners merely on the ground that they were the owners of the house or on the ground that it was found lying in a heap of bricks in their courtyard. They may be wholly unaware of its existence. There is also no evidence, direct or circumstantial, suggesting that both the bro­thers were party to placing the opium there or had knowledge of its existence. If recovery of opium from the courtyard could be taken as evi­dence of conscious possession of the opium by the petitioners, it would follow logically that other inmate of the house were also in conscious possession of the opium. Yet this conclusion is not possible as possession of opium within the meaning 'of S. 5 (a), Assam Opium Prohibition Act must 'imply knowledge. It must be conscious possession 'making some kind of control possible, or, in other words, there must be mens rea or guilty know­ledge before a person could be convicted of an offence under S. 5 (a) for possession of opium: vide Abdul All v. The State, A. I. R. (37) 1950 Assam 152. It is possible that opium may have been placed there by one of the two brothers. It is possible that opium may have been placed there by one of the two brothers. It is also possible that both had the guilty knowledge of its existence there. They, however, cannot be convicted on possibilities. There is no evidence pointing to the conclusion that both or any one of the two had guilty knowledge of its existence there, and if other inmates of the house could not be found guilty by reason of the recovery alone of the opium from the courtyard, the petitioners too could not be convicted. [7] We think that the evidence on the record does not bring home the charge to the petitioners and therefore their convictions are unsustainable. The petition is allowed, their convictions and sentences are set aside. [8] Thadani C. J.- I agree in the conclusion. Convictions & sentences set aside.