JUDGMENT : B.N. Misra, A.C. J. 1. This is an appeal by the State Government u/s 373 of the Code of Criminal Procedure against the judgment of acquittal dated 31. 8, 1981 passed by the learned Judicial Magistrate, First Class, Puri, in Case No. 2(a) C C. 171 of 1979 acquiting the two respondents from charges u/s 47 read with Section 55 of the Bihar and Orissa Excise Act, 1915 (hereinafter referred to as the Act.). 2. The prosecution case may be briefly stated : The two respondents are two brothers and they live together in a house at Markandeswar Sahinpuri town. The front room of the house was used as a betel shop. ?' W. A, Excise Sub-lnspectcr, received information that the two respondents had illegally stored Bhang in their house Acting on this information, P. W. 4 raided the house of the respondents on 26-5-1979 along with his Constable, P. W. 1. in the presence of P. Ws. 2 and 3, residents of Puri town, P. W. 4 searched the house of the respondents in accordance with law and recovered 37.710 Kgs. of Bhang from the betel shop and the store room of the house. The Bhang along With other articles were seized under the seizure list, Ext. 1. Thereafter, prosecution report was submitted against the two respondents who were put on trial for the offences u/s 47(a) read with Section 55 of the Act. 3. Four witnesses were examined on behalf of the prosecution and none on behalf of the defence. 4. The defence plea is one of denial. In their statements recorded u/s 313, Cr. P. C, the two respondents have denied all the allegations levelled against them by the prosecution. 5. The learned Magistrate who tried the case accepted the prosecution case of seizure and possession, but acquitted the two respondents on the ground that the prosecution had failed to prove that the seized Bhang was non-duty-paid. 6. On scrutinising the prosecution evidence it is seen that the staternent of P. W. 4 regarding search and seizure is supported by P. Ws. 1 and 2. p. W. 1 is an Excise Constable and P. W. 2 is a resident of Puri town P. W. 3 did not support the prosecution case of seizure. The documentary evidence with regard to the seizure are Exts. 1 and 2. 1 and 2. p. W. 1 is an Excise Constable and P. W. 2 is a resident of Puri town P. W. 3 did not support the prosecution case of seizure. The documentary evidence with regard to the seizure are Exts. 1 and 2. The former is a seizure list prepared by P. W. 4 at the spot in the presence of witnesses and Ext 2 is a Puri Municipality tax receipt which stands in the name of respondent No. 2 only. The name of respondent No. 1 does not find mention therein. P. W. 4 has stated in his evidence that he did not know the two respondents from before the date of seizure, nor did he know Where they lived. According to him, P, W. 1 directed him to the house of the respondents. When he arrived at the house of the respondents the two respondents were present in the house along with two other female members of the family. After observing the formalities P W. 4 recovered 18 earthen pots containing Bhang from the betel shop and the store house. On consideration of the evidence I agree with the learned Magistrate that on search, 37.710 Kgs. of Bhang were recovered from the betel shop and the store house of the house in which the two respondents lived. However, there is no evidence or material before the Court to lead to a definite conclusion on the question whether the two respondents who are brothers Jointly owned or possessed the Bhang which was seized from the betel shop and the store house or that one of them owned or possessed the same to the exclusion of the other. In the absence of any material regarding active and conscious joint possession of the seized Bhang by both the respondents or exclusive possession by one of them, the benefit of doubt as regards possession of the seized Bhang must go to both the respondents. 7. Further, in their evidence P. Ws. 2 and 4 have stated in Court that the Bhang seized from the betel shon and the store house Was non-dutv-vd Bhang. P.W. 1 has not stated that the Bhang which was seized was non-duty-paid, in the seizure list. Ext. 1, there is no mention that the seized Bhang was non-duty-paid. There is also no evidence that the seized Bhang had been sent for chemical examination. P.W. 1 has not stated that the Bhang which was seized was non-duty-paid, in the seizure list. Ext. 1, there is no mention that the seized Bhang was non-duty-paid. There is also no evidence that the seized Bhang had been sent for chemical examination. In this connection reference may be made to two decisions of this Court reported in 31 (1965) CLT 172 [The State v. Satyanarayan Mallik and Radhashyam Jena alias Mohapatra Vs. State of Orissa, Radhashyam Jana alia Mohapatra v. The State], In those two cases, Ganja had been seized and the said Ganja had not been sent for chemical examination. The evidence that the seized Ganja was non-duty-paid was confined to the oral statements of witnesses. In both the cases the Court did not accept the prosecution case that the seized Ganja was non-duty-paid. In the present case also there is no trustworthy evidence that the Bhang seized from the betel shop and the store house was non-duty-paid. 8. For the reasons stated above, find that the prosecution has faffed to bring home the charge u/s 47(a) read with Section 55 of the Act. Accordingly, this appeal is dismissed and the judgment of acquittal is confirmed. Final Result : Dismissed