JUDGMENT : A. Misra, J. - The Petitioner has been convicted u/s 9(a) of the Opium Act and sentenced to undergo R.I. for four months. 2. The prosecution case, in brief, is that at about 9.00 a.m. on 15-8-1964, the Excise A.S.I. (p.w. 1) saw the Petitioner coming in a rickshaw with a bag from the bus stand, detained the rickshaw on suspicion and on search of the bag found 850 grams of opium among other articles. P.w.1 produced the Petitioner before the Excise Sub-Inspector (p.w. 2) who at some distance was engaged in other detection work. After seizure of opium in the presence of witnesses, the Petitioner was arrested and put on trial. Petitioner has pleaded not guilty to the charge and asserted that no opium was found or recovered from his possession. On the evidence, the learned Sub-divisional Magistrate convicted and sentenced him u/s 9(a) of the Opium Act, as stated above, and on appeal, the conviction and sentence have been confirmed. 3. The conviction and sentence are challenged mainly on two grounds: (1) that the substance alleged to have been seized from the Petitioner was not sent for chemical examination to find out if it was actually opium and, (2) that the prosecution has failed to conclusively establish that Petitioner was in exclusive or conscious possession of the opium seized in the case. 4. At the time of arguments, learned Counsel for Petitioner did not press the first contention, i.e. failure to send the substance seized for chemical examination to determine that it was actually opium. Therefore, it is not necessary to examine this contention. He confined his arguments to the second contention, i.e., failure of the prosecution to prove beyond reasonable doubt that Petitioner was in actual or conscious possession of the opium that was seized. 5. The fact that on the date and at the time alleged 850 grams of opium was seized is not seriously disputed. To sustain a conviction u/s 9(a) of the Opium Act, the onus rests on the prosecution to establish that Petitioner was found in actual possession of opium that was seized. No doubt, u/s 10 of the Act, there will be a presumption that opium found in possession of a person for which he is unable to account satisfactorily is opium in respect of which he will be deemed to have committed an offence under the Act. No doubt, u/s 10 of the Act, there will be a presumption that opium found in possession of a person for which he is unable to account satisfactorily is opium in respect of which he will be deemed to have committed an offence under the Act. Such a presumption, however, will arise only where it is established by satisfactory evidence that the accused was found in actual possession of opium. In the present case, therefore, the point for determination is whether prosecution has satisfactorily established that opium which was seized was in actual possession of Petitioner. 6. In 8111, 4 witnesses have been examined by the prosecution. P.w. 1 is the Excise A.S.I. who detained the rickshaw in which Petitioner was travelling and opium was found from a bag carried in that rickshaw. P.w. 3 is a search and seizure witness. P.w. 4 is the rickshaw-puller in whose rickshaw Petitioner was travelling at the time search was made and the contraband article found. P.w. 2, the Excise Sub-Inspector, who was engaged in other detection work at some distance is not competent to depose as to whether opium was found in the possession of the Petitioner. In this evidence, p.w. 1 does not speak a word about anybody else, besides the Petitioner travelling in the rickshaw in which opium was seized. According to him, Petitioner was sitting in the rickshaw with a bag and when he detained and searched it, he found the contraband article in the bag along with other wearing apparels. P.w.3, however, in his cross-examination admitted that two persons were travelling in the rickshaw, one of them being the Petitioner. According to him, each of them was carrying a bag and there was no other articles in the rickshaw. He has further stated that each was holding bag in his hand and the bag was kept on the base of the rickshaw. Both of them were taken by p.w. 1 to p.w. 2, P.w.2 in his cross-examination has admitted that p.w. 1 produced two persons before him and opium was found in a blue plastic-bag. P.w. 4 has deposed that he was engaged by Petitioner at the bus stand and Petitioner and another person got into the rickshaw for being taken to the Dharmasala, He has also stated that p.w. 1 detained and checked the bags of both the occupants of the rickshaw. P.w. 4 has deposed that he was engaged by Petitioner at the bus stand and Petitioner and another person got into the rickshaw for being taken to the Dharmasala, He has also stated that p.w. 1 detained and checked the bags of both the occupants of the rickshaw. He is unable to say who was holding the bag (M.O.I.) from which the contraband article was found. Thus, the prosecution evidence itself discloses that on the date in question two persons including Petitioner carrying two bags got into the rickshaw of p.w.4 and were proceeding towards Dharmasala when it was detained and searched by p.w. 1. It is also proved that in one of the bags opium was found. Though these facts have been established, there is no satisfactory evidence that M.O.I. from which the contraband article was found belonged to Petitioner or was in his actual possession at the time of detection and search. The possibility of both of them being in joint possession of opium though it was contained in one of the two bags carried in rickshaw cannot be excluded. So also, the possibility of M.O.I. from which opium was found having belonged to the companion of Petitioner and Petitioner having no knowledge about it cannot be eliminated. It is only after p.w.4 admitted that actually two persons with two bags were travelling and both were detained and searched, the other witnesses admitted the presence of the second person with a second bag. No evidence has been adduced to show that M.O.I. from which the contraband article was found belonged to Petitioner. In the absence of any explanation as to who the other person was and why he has not been put on trial along with Petitioner or the contraband article did not belong to him or why he was not examined as a witness and in the absence of clear and satisfactory proof that M.O.I. from which opium was seized actually belonged to or was being carried by Petitioner, the possibility of it having belonged to the other person or the possibility of Petitioner not having knowledge of any contraband article in that bag cannot be excluded. The learned Sessions Judge has ignored this aspect by observing that only because the Excise officer has not booked the other person in the rickshaw, it cannot be said that the said person and the Petitioner was in possession of opium seized in the case. This is not a correct approach. The onus being on the prosecution to prove that Petitioner was in actual possession of opium, unless the reasonable possibility of the other person being in possession can be excluded, it will not be correct to saddle the Petitioner with possession of the same. In the absence of clear proof that M.O.I. belonged to and was in actual possession of Petitioner, and in view of the fact that the possibility of Petitioner's companion being in possession of the bag from which opium was found cannot be reasonably excluded, Petitioner is entitled to benefit of doubt and his conviction u/s 9(a) of the opium Act cannot be sustained. 7. For the aforesaid reason, I allow the revision petition, Bet aside the conviction and sentence of the Petitioner and direct that he be Bet at liberty forthwith. Revision petition allowed. Final Result : Allowed