JUDGMENT 1. - This is a revision-petition filed by Harish Chander against the judgment of the Sessions Judge, Sri Ganganagar, by which his conviction under section 9 of the Opium Act was confirmed but the sentence of six months rigorous imprisonment awarded to him by the Judicial Magistrate First Class, Sri Ganganagar, was reduced to a term of 21 months rigorous imprisonment. 2. The prosecution case against the petitioner was as follow-On February 8, 1972, at 5.00 p m. Prithvi Raj, AS.I police station, Raisinghnagar, went to the house of the petitioner at Sri Gangangar in connection with investigation of criminal case No. 8 of 1972 under section 3/6 of the Passport Act. He received an information that some important documents connected with that case were lying in the house of the petitioner. After reaching the petitioners house, the A.S.I. conducted a search therein in the presence of Nandlal and Lokhnath Motbirs at the instance of Mohammad Iqbal accused of the passport case. In the cause of search of a room of the petitioners house, contraband opium weighing 18 grams was recovered from a tin wherein it was kept wrapped in a piece of paper, and a recovery memo thereof (Ex P.l) was prepared at the spot and the opium so recovered was sealed in the presence of Motbirs. The A.S.I. then came to the police station and lodged a report Ex.P.4 with the Station House Officer, Ganganagar, the very day at 5.45 p.m. On the basis of the report of the A.S.I. the Station House Officer registered a criminal case under section 9 of the Opium Act and took up usual investigation into the matter. He sent the sealed picket of the opium to the Police Forensic Sevens Laboratory, C.I.D.,Rajasthan,Jaipur, for chemical analysis. The Assistant Director Chemical Section of the said laboratory analysed the substance contained in the sealed packet and found it to be of opium having 4 81 % of the morphine. The Assistant Director then sent a report of the result of his analysis to the Station House Officer, Ganganagar, which is Ex.P.8 on the record. The Station House Officer collected other necessary evidence in the case and, eventually, filed a charge-sheet against the petitioner under section 9 of the Opium Act in the court of the Sub-Divisional Magistral, Sri Ganganagar, on May 26.1973. The Station House Officer collected other necessary evidence in the case and, eventually, filed a charge-sheet against the petitioner under section 9 of the Opium Act in the court of the Sub-Divisional Magistral, Sri Ganganagar, on May 26.1973. It appears that after coming into force of the New Cede of Criminal Procedure, this case was transferred to the court of the Judicial Magistrate First Class,Sri Ganganagar. The learned Judicial Magistrate tried the petitioner and found him guilty of the offence punishable under section 9 of the Opium Act. Accordingly, he convicted and sentenced the Petitioner to undergo rigorous imprisonment for 6 months Aggrieved by his conviction and sentence, the petitioner preferred an appeal to the court of the Sessions Judge, Sri Ganganagar, who, while conferring the conviction of the petitioner under section 9 of Opium Act reduced his sentence to a term of rigorous imprisonment for 2 months. As against this judgment of the Sessions Judge, the petitioner has come up in revision to this Court, as stated above. 3. I have carefully perused the record and heard Mr. M L Garg, learned counsel for the petitioner and Mr. H.N. Calls, Public Prosecutor, for the State Mr. M.L Garg strenuously urged before me that there is not a scintilla of evidence against the petitioner that he was in conscious possession of the opium which was said to have been recovered from a room of his house. According to his submission, the word possession used in section 9 of the Opium Act connotes conscious possession and there would be no possession when there is do proof that the petitioner had knowledge that the opium was lying wrapped in a piece of paper in a tin inside the room of his house. Mr. H.N. Calla, Public Prosecutor, on the other hand, argued that there is evidence on the record that the house from where the opium was recovered was in exclusive possession of the petitioner and that the courts below were justified in drawing an inference that the contraband opium was kept in the tin by the petitioner inside the room of his house. 4. I have given my anxious consideration to the rival contentions mentioned above. 4. I have given my anxious consideration to the rival contentions mentioned above. At the outset I may observe that the mere fact that contraband opium was found in a tin inside a room of the house of the petitioner is not sufficient to hold him guilty of an offence punishable under section 9 of the Opium Act, unless there is further proof from the side of the prosecution that the petitioner had knowledge that the contraband opium was lying wrapped in a piece of paper in his tin. It is pertinent to note that at the time of recovery of the opium the petitioner was not present at his house. There is evidence of Nand Lal Motbir on the record that the petitioner was absent from his house for the last 4-5 days immediately prior to the date of the recovery. There is another circumstance which clearly indicated that the house was not in exclusive possession of the petitioner at the time of the recovery of the contraband opium. Prithvi Raj, A.S.I.admitted in his cross-examination that the house was locked at the time when he went there for search He further admitted that the key of the lock was supplied to him by one Lal Chand, who is brother-in-law of the petitioner. The possibility to the contraband opium having been wrapped in a piece of paper and kept in a tin by Lal Chand or any other person could not altogether be ruled out in this case especially when Nand Lal PW 1 stated in his deposition that the Motbirs were standing at the gate of the house at the time when the Constables were taking the search inside the room and that the persons of the Constables were not searched before they went inside the room for conducting the search. Consequently, I have no hesitation in holding that the prosecution could not succeed in proving beyond reasonable doubt that the house from which the opium was recovered was in exclusive possession of the petitioner at the time of the recovery, and that the petitioner had knowledge that the opium was lying wrapped in a piece of paper in a tin inside the room of his house. Curiously enough, Prithvi Raj, A.S.I. did not even mention in his first information report that he had searched the house of the petitioner to discover some papers connected with the passport case. Curiously enough, Prithvi Raj, A.S.I. did not even mention in his first information report that he had searched the house of the petitioner to discover some papers connected with the passport case. In his cross examination when Prithvi Raj was questioned about the omission of this material fact in his first information report, he frankly admitted that he could not afford any reasonable explanation why this fact was not mentioned by him in his first information report. 5. Mr.HN Calla, Public Prosecutor, invited my attention to the provisions contained in section 10 of the Opium Act, 1878 and contended on their strength that when once it is proved by the prosecution that the accused was in physical custody of the opium, it is for the accused to prove satisfactorily that he was not committed any offence by showing that he was not knowingly in possession of the contraband opium According to his submission, the prosecution has proved in this case that the opium was recovered from the house occupied by the petitioner and, therefore, by virtue of section 10 the burden was on the petitioner to explain his possession. In the peculiar circumstances of this case, the above contention put forward by Mr. H.N. Calla is not acceptable, because by virtue of section 10 the burden of proof is placed on the accused only when the prosecution has succeeded in showing by evidence that the accused has dealt with the article or was directly concerned with it in any manner. As stated earlier, in the present case, there is no proof from the side of the prosecution that the accused had dealt with contraband opium or was directly concerned with it in any manner. The prosecution could not even prove that the house from the which opium was recovered was in exclusive possession of the petitioner at the time of recovery or that the opium was recovered from the tin in the presence of or within the view of the Motbirs and the persons of the Constables, who entered the house for conducting search, were searched by the Motbirs prior to their entrance. 6. The result of the above discussion is that the petitioners conviction under section 9 of the Opium Act cannot be upheld and he deserves to be acquitted of the said offence. 6. The result of the above discussion is that the petitioners conviction under section 9 of the Opium Act cannot be upheld and he deserves to be acquitted of the said offence. I, therefore, accept the revision-petition filed by Harish Chander, set aside bis conviction and sentence under section 9 of the Opium Act and acquit him of the said charge. The petitioner is on bail. He need not surrender to his bail bonds, which are hereby cancelled.Revision accepted. *******