JUDGMENT : S.C. Mohapatra, J. - Conviction of the Petitioner u/s 47 (a) of the Bihar and Orissa Excise Act, 1913 (hereinafter referred to as "the Act") and imposition of sentence to undergo rigorous imprisonment for eight months with fine of Rs. 500/- in default to undergo rigorous imprisonment for two months which has been affirmed in appeal is challenged by the accused in this criminal revision. 2. On 2-6-1980, p.w. 8 the Assistant Sub-Inspector of Police of Jamankira Police station recovered 27 bags of bhang mixed with ganja from the house where the Petitioner was residing. Petitioner was tried and convicted on the finding that he was in possession of the said 27 bags of bhang mixed with ganja. 3. Mr. B. Nayak, the learned Counsel for the Petitioner assailed the conviction on the following grounds: (i) Section 74 of the Act which is mandatory has been violated. (ii) In Finding of possession by the Petitioner is unreasonable. 4. Since legal questions were raised, I requested Mr. G. H. Panda, advocate to render his valuable assistance which he has extended with ability. 5. Mr. S. K. Das, the learned Additional Standing Counsel appearing as the Public Prosecutor, submitted that in view of Section 70 of the Act that the search and seizure cannot be illegal that the records contain the report of chemical analysis to the effect that the seized articles are bhang mixed with ganja and in spite of the fact that it has not been marked exhibit the same being a public document can be considered by the Court. Lastly Mr. Das submitted that two Courts of fact have assessed the evidence and have come to the conclusion that the Petitioner was in possession of 27 bag; of bhang mixed with ganja. Accordingly in revision I should not interfere with the conviction and sentence. 6. First ground of attack by Mr. Nayak is supported by two decisions of this Court reported in Krushna Chandra Behera Vs. State of Orissa, and Kasinath Behera v. The State of Orissa 60 (1985) C.L.T. 510. In both these decisions reliance has been placed on a decision of the Supreme Court reported in State of U.P. and Another Vs. Sri R.D. Rai and Others where provisions of Section 53 and 54 of Mysore Excise Act similar to Sections 70 and 74 of the Act, were considered. In both these decisions reliance has been placed on a decision of the Supreme Court reported in State of U.P. and Another Vs. Sri R.D. Rai and Others where provisions of Section 53 and 54 of Mysore Excise Act similar to Sections 70 and 74 of the Act, were considered. In the case before the Supreme Court 48 bottles of liquor were recovered from a car. On the finding that the officer making the search did not make any record of the grounds on the basis of which he had a reasonable belief that the offence under the Mysore Act was committed. It was held that the provisions of Section 54 (similar to Section 74 of the Act) were not at all complied with. It was held that a direct non-compliance of the provision renders the search completely without jurisdiction. The decision does not disclose if there was other evidence of possession by the accused in that case. In case there is no other evidence of possession and recovery on the basis of illegal search in contravention of the law is the only foundation for the finding of possession, the officer searching and giving evidence of possession is to be disbelieved since the chance of frivolous prosecution or harassment of a citizen affecting his liberty cannot be ruled out. The principle decided in a decision depends on the facts disclosed therein. It has not been held by the Supreme Court that other evidence of possession if available cannot be relied upon for the purpose of finding possession to convict the accused. In both Section 47 (a) of the Act or Section 34 of the Mysore Act possession of intoxicant drug attracts the criminal liability. Search and recovery are only processes for discovery of possession. If there would be other clear acceptable evidence of possession, a conviction would not become bad merely because the recovery is illegal. Illegal search may be lawfully resisted by use of criminal force and no offence may be committed for giving the resistance as has been held in the decision of the Supreme Court in The State of Rajasthan Vs. Rehman. Criminal liability for illegal possession cannot be waived on that account since the language of Section 47 (a) of the Act is not that the possession is to be found on the basis of search. Rehman. Criminal liability for illegal possession cannot be waived on that account since the language of Section 47 (a) of the Act is not that the possession is to be found on the basis of search. At the cost of repetition it can be said that the search is only a mode to find out the possession. 7. There are two later decisions of this Court - one rendered in Harish Chandra pandey v. State of Orissa Cri. Rev. No. 554 of 1981, dt. 18-11-1985 and the other reported in Abdul Gaffar v. State of Orissa 63 (1987) C.L.T. 370 where replying upon a decision of the Supreme Court reported in Bai Radha Vs. The State of Gujarat, the two earlier decisions of this Court were dissented from and it was held that the search and recovery though not in confirmity with the requirement u/s 74 cannot be said to be illegal in view of he provisions in Section 70 of the Act. In Bai Radha's case (supra) while considering the provisions of search which required recording of reasons in the suppression of Immoral Traffic in Women and Girls Act, 1956, as in Section 74 of the Act, it was held that the statute confers background it was held that omissions to record reasons before or after the search would not vitiate the trial for an offence under the Act, since jurisdiction to search is conferred by the statute and not by recording the reasons. In State v. Satyanarayan Mallick 31 (1965) C.L.T. 172, it has been laid down that the illegality of search does not make the evidence of seizure inadmissible though the Court may be circumspect to closely scrutinise the evidence of seizure. 8. On the discussion as above, it can safely be concluded that the offence u/s 47 (a) being for illegal possession and not recovery by authorities of such illegal possession, search and recovery are only modes to prove illegal possession which if can be found from other evidence, neither initiation, continuance or conclusion of the trial would be vitiated in case the requirement of Section 87 of the Act has been satisfied. The first contention of Mr. Nayak has accordingly, no force. 9. The second ground of attack of Mr. The first contention of Mr. Nayak has accordingly, no force. 9. The second ground of attack of Mr. Nayak is that report of chemical analysis that the article in respect of which offence has been committed is bhang mixed with ganja has not been proved. Section 47 (a) of the Act makes possession of any intoxicant drug an offence. Leaves, small stalk and flowering or fruiting tops of the Indian hemp plant including all forms known as bhang, sidhi or ganja come within the definition of intoxicant drug u/s 2 (13) (0 of the Act. There is no bar in the Act to prove otherwise than by chemical analysis that an article is intoxicant drug. It is true that chemical analysis is a surer test and a Court of fact in a given a circumstance may draw adverse inference by rejecting other evidence on record that it has not been proved that the article possessed is not intoxicant drug, Whether the article is an intoxicant drug would depend on the facts proved and the explanation of the accused u/s 313, Criminal Procedure Code considered together. Chemical analysis is not a sine qua non to find the nature of the article possessed. In this case, the records contain a report of chemical analysis which has not been marked as exhibit. This is an account of lack of care by the prosecution. Be that as it may, p.w. 8 has stated that the article in respect of which the Petitioner is prosecuted is bhang mixed with ganja. Both the Courts have accepted the same. I have no reason to differ from the said finding. The second attack of Mr. Nayak also fails. 10. With regard to third attack of Mr. Nayak, I think there is great force and the Petitioner is entitled to benefit of doubt. Prosecution is to be prove that the intoxicant drug was in possession of the accused. Thereupon the presumption of guilt can be attracted u/s 48 of the Act unless the accused is able to explain the validity of such possession in accordance with law. In the present case, Petitioner has denied his possession. He and his wife were absent at the time of recovery of the bags containing bhang mixed with ganja from the Court-yard of their house. In the present case, Petitioner has denied his possession. He and his wife were absent at the time of recovery of the bags containing bhang mixed with ganja from the Court-yard of their house. There is no evidence when the bags were brought into the house and whether the Petitioner had knowledge of it. Although Petitioner took the plea that the house where he resides in the joint family house occupied by him and his brothers, there is clear evidence that Petitioner is separated from his brother and resides in his own house with is wife and son. At the time of recovery the son was present and he was arrested. Therefore, the Petitioner cannot be held to have conscious possession of the incriminating article and is entitled to benefit of doubt. 11. In the result, the revision is allowed and the order of conviction and sentence of the Petitioner is set aside. The bail bond is discharged. Final Result : Allowed