JUDGMENT : Das, J. - This is an appeal by the State against an order dated 5-7-1963 passed by the Sub-divisional Magistrate, Puri, acquitting the Respondents of offences u/s 47(a) of the Bihar and Orissa Excise Act and Section 9(a) of the Opium Act read with Section 3 of the Opium Laws Amendment Act of 1957. 2. The two Respondents are brothers. The Sub-Inspector of Excise (p.w. 1) or receipt of information that the accused-Respondents had illegally stored huge quantity of Ganja and Opium in their house at Khadipara within the Sadar Police Station, Puri, obtained a search warrant (Ext. 1), and searched the house of the Respondents and seized a huge quantity of Ganja and Opium under seizure lists, 2 to 5 and 6. He thereafter submitted a prosecution report and the accused persons were duly summoned to stand their trial for offences above said. 3.The plea of the accorded was one of a denial. Accused Narasingha stated that the articles were not recovered from his house. He further stated that he stays in his shop-house in Puri town and he has no concern with the house and the goods recovered therefrom. The plea of the other accused Nilakantha was that he does not stay in the said house. They also examined two defence witnesses to show that the house from which the articles were recovered was in possession of one Aparti Mohanty and accused Nilakantha or Narasingha never lived therein. 4. In support of the prosecution case three witnesses leave been examined including the Sub-Inspector of Excise, P.W. 1. The learned Magistrate was not satisfied with the state of evidence led by the prosecution and acquitted the accused persons. It is against this order of acquittal the State has filed the present appeal. 5. It has been clearly established by evidence that a huge quantity of non-duty paid Ganja, Bhang and Opium was seized by P.W. 1 in the presence of witnesses, p.ws. 2 and 3 from a house alleged to be under occupation of the accused persons. The house consists of a number of rooms and these articles were recovered from a number of rooms in the northern, southern and western side of the house. 2 and 3 from a house alleged to be under occupation of the accused persons. The house consists of a number of rooms and these articles were recovered from a number of rooms in the northern, southern and western side of the house. It is clear from the evidence that accused Nilakantha Sahu was present in the said house and it was he who opened the door when the S.I. caned at the outside of the house. It has also been proved by P.W. 1 that after the search was over a seizure list was prepared the contents of which were explained to the accused Nilakantha and he signed the same. Thus, the presence of the accused in the house at the time of the search cannot be disputed. He is admittedly the village postmaster and his case is that he does not stay in that house, but one Aparti Mohanty is in occupation of the house. P.w. 1 admittedly is a stranger to the locality and was not aware as to who was in actual possession of the house. P.w. 2 is not a man of the village but is a music teacher and lives at Bakshi Sahu in the town of Puri. In the morning of the day of search he went to the said village being requested by the excise officer to witness the search. According to P.W. 2 both the brothers, Nilakantha and Narasingh, reside in that house. When cross-examined, the witness, however, was unable to say as to who were staying in the neighboring houses. He could not say if one Lokanath Sahu has his house just adjacent to the house, which was searched as according to him he was not acquainted with that locality. Thus, this witness has no clear idea as to who was in actual occupation of the house that was searched. Further it has been admitted by him that he might have been cited as a witness in about six excise cases, though at the same time he asserted that he had never been examined as a witness in any of such cases. In any event his evidence does not appear to be dependable. P.W. 3 is the only witness of the village. In any event his evidence does not appear to be dependable. P.W. 3 is the only witness of the village. According to him both the accused persons live in that house with their family but in cross examination he admitted that Narasingh is a bachelor and thus has no family of his own. He further admitted that Narasingha had a cloth shop at Puri and he is not sure if he stays there. He admitted that Nilakantha is the village post-master and has another shed to the south of the village. He admitted that the house in question belonged to Sarada Stri and Lokanath (p.w. 1) is a brother of Sarada. It was the evidence of this witness that accused Nilakantha purchased this house and was remaining there, but in cross-examination he was unable to deny if accused Nilakantha was occupying the house of Ramahari as the latter had left for Puri. He further admitted that he himself has a stationery shop at Puri and stays there. It is not clear from his evidence if accused Narasingh used to stay in that house. Thus the evidence is not very satisfactory to establish that the accused persons were in possession of the house searched by P.W. 1. It appears from evidence that there were some adult members and females living in that house at the time of search, but who they were, the evidence is not clear, though undoubtedly a large quantity of Ganja and Opium was found in that house and accused Nilakantha was found there at the time of search. 6. D.w. 1 Lokanath Sahu has been examined on behalf of the defence. He is said to be the brother of Sarada Stri the alleged owner of the house. According to him he has been in possession of the house after the death of Sarada. He denied that this house was sold to Nilakantha or to anybody else. He came forward to say that he had given this house temporarily to Aparti Mohanty who keeps his fuel there. He further stated that accused Narasingh lived near Singh Dwar in town Puri where he has his cloth shop and Nilakantha lives in another house near the post office. Thus the defence has led some evidence to show that the accused persons were not living in the house which was searched by P.W. 1. He further stated that accused Narasingh lived near Singh Dwar in town Puri where he has his cloth shop and Nilakantha lives in another house near the post office. Thus the defence has led some evidence to show that the accused persons were not living in the house which was searched by P.W. 1. No doubt, this evidence by itself is not sufficient to destroy the prosecution case, but the evidence of d.w. 1 gets some corroboration from the evidence of P.W. 3 according to whom also Narasingh has a cloth shop in Puri town and he is a bachelor, and he remains there. The prosecution, however, was started against both the brothers and not against accused Nilakantha alone who was found at the place at the time of seizure. 7. Not much importance can be given to the signature of the accused on the seizure lists, Exts. 2 to 6. Assuming that he was present at the time of search signed the seizure list that by itself cannot be taken as an incriminating evidence against him. It was contended by the prosecution that the very fact of the presence of the accused at the place of search and his signature on the seizure list are sufficient to make out a case against the accused Nilakantha. On the other hand it was contended by the defence that the mere signature of the accused on the seizure list cannot be taken as an admission of the accused that the articles were in fact recovered from his possession and in any case such admission is hit by Section 25 of the Evidence, Act. It is well-settled by authorities that confession to an excise officer is hit by Section 25 of the Evidence Act and is inadmissible in evidence Rajaram v. State of Bihar 1964 S.C.D. 611. Here even if the prosecution case is accepted to its fullest extent it can at best amount to this that some contraband articles were found from the house in joint occupation of both Nilakantha and his brother. But there is no evidence to show that any of them was in conscious possession of the property. Of course it was open to the prosecution to make out a case that both of them shared the guilty knowledge and were in conscious possession of the articles recovered. But the prosecution has not led any such evidence. 8. But there is no evidence to show that any of them was in conscious possession of the property. Of course it was open to the prosecution to make out a case that both of them shared the guilty knowledge and were in conscious possession of the articles recovered. But the prosecution has not led any such evidence. 8. In Gopinath Naik v. State 23 C.L.T. 19l his Lordship while dealing with a case of recovery of stolen articles found in a house belonging to a Hindu joint family, held that where a house is in occupation of a joint family consisting of the accused and his father and during the police search the accused pointed out the place of concealment where from the articles were recovered, in absence of evidence that the accused was in exclusive control of the place from where the article was recovered no inference of guilt can be drawn against him, on the ground that he was found in possession of the same. The same was also the view expressed in State v. Amir Hassan AIR 1951 Pat. 638 . In that case their Lordships while dealing with a case under the Explosive Substance Act held that it is for the prosecution to prove conscious possession and actual control of the incriminating articles with guilty knowledge and when that is done the onus changes to the accused to explain his possession and control. Section 5 of the Explosive Substances Act under which that prosecution was levied, is analogous Section 48 of the Bihar & Orissa Excise Act and Section 10 of the Opium Act. Therefore the prosecution cannot merely rely on the recovery of the articles but has further to prove that the articles were in conscious possession of all or any of the accused persons. 9. The Calcutta High Court in a case u/s 9 of the Opium Act, Cyril C. Baker Vs. Emperor, held that Possession without knowledge can hardly have been meant since in that case the element of criminal intention or knowledge would be entirely wanting. That was a case in which certain quantity of opium was found from a cabin in occupation of the accused and it was held that there was no possession of the contraband articles in the absence of the knowledge of the cupant. That was a case in which certain quantity of opium was found from a cabin in occupation of the accused and it was held that there was no possession of the contraband articles in the absence of the knowledge of the cupant. No doubt u/s 10 of the Opium Act and u/s 48 of the Bihar & Orissa Excise Act in the absence of a satisfactory explanation by the accused, a presumption of guilt has to be drawn. But the question of such presumption can only arise when it is proved that a particular accused was in conscious possession of the same. That is a rebut table presumption and even though the accused may be found to be in possession he may give satisfactory explanation about such posession so as to entitle him to an acquittal. 10.In the present case the prosecution was not sure as to which of the accused persons was in conscious possession of the contraband articles. They therefore started a case against both of them on the assumption that both of them were in such possession. As a legal proposition there is no bar to any number of persons jointly being prosecuted for possession of certain contraband articles so as to make each of them hable for the offence charged. But there must be some evidence to that effect. In the present case as we have seen Narasingh holds a shop at Puri where he carries on his business in cloth and also stays there. There is also evidence that accused Nilakantha serves as a post-master and stays in another house. The evidence shows that there were some adult members in the house though Nilakantha was in fact found in that house at the time of search. From the evidence of d.w. 1 the owner of the house it appears that the house was let out to one Aparti Mohanty. Thus, the effect of all these evidence goes to show that none of the accused persons can be said to be in conscious possession of the goods recovered from the aforesaid house. 11. It was contended that accused Nilakantha, though a post-master, was previously dealing in excisable articles and it is just likely that he being in the know of the trade was carrying on this business clandestinely. It is not improbable that he was doing so. 11. It was contended that accused Nilakantha, though a post-master, was previously dealing in excisable articles and it is just likely that he being in the know of the trade was carrying on this business clandestinely. It is not improbable that he was doing so. But this after all is a suspicion and suspicion, however, grave, cannot take the place of legal evidence. In the circumstances, the accused persons must be entitled to the benefit of doubt and accordingly the order of acquittal passed by the trial court is maintained and the appeal dismissed. The contraband articles seized by P.W. 1 must be confiscated to the State. Appeal dismissed. Final Result : Dismissed