JUDGMENT 1. - This revision petition is directed against the judgment of the learned Additional Sessions Judge, Bhilwara dated 23.9.1981, whereby, the learned Judge has convicted the accused-petitioners for the offence under Section 4/9 of the Opium Act and sentenced each of them to six months' R.I. and a fine of Rs. 500/- each, in default of payment of fine to further undergo one month's R.I. 2. Brief facts of the case are that on 7.8.1974, the Assistant Sub-Inspector, Narcotics Department, Bhilwara received a written report (Ex. P/4) that on information by the informant, A.S.I. Narcotics Department along with party reached at the house of Sukha S/o Laloo Jat at village Maheshpura in morning. At that time, the accused Sukha was not found in his house. His wife was present there. In the presence of the Motbirs, the search of the house of Sukha was conducted. During search, at the corner of right-side's pole, they digged the land about one feet deep. After digging the land, they found 8 kg: Opium in a bag. Two samples of 30 grams each were taken and were sealed in the presence of the Motbirs. The samples and a bag of opium were handed-over to the in-charge, Police Station, Hamirgarh. After completing the usual investigation, a challan was put up in the court of Chief Judl. Magistrate, Bhilwara. 3. At the trial, the prosecution has examined as many as 8 witnesses. The motbirs were declared hostile. After considering the statements and other evidence on record, the learned Magistrate has convicted and sentenced both the accused-petitioners as stated above. 4. In appeal, the learned Additional Sessions Judge maintained the conviction and sentence of both the petitioners. Being aggrieved of the conviction and sentence, the petitioners came up in revision before this Court. 5. Mr. N.K. Rastogi appearing for Mr. N.P. Gupta, learned Counsel for the petitioners submitted that the accused-petitioners were not in conscious possession of the opium in question. The place, from which, it was recovered, was open space where there were no doors etc. to keep watch or control over it. Neither the opium was recovered in the presence of the accused Sukha nor the accused Mst. Gattu but she was called after its recovery. Learned Counsel for the petitioners further submitted that in the present case, the link evidence is missing. to keep watch or control over it. Neither the opium was recovered in the presence of the accused Sukha nor the accused Mst. Gattu but she was called after its recovery. Learned Counsel for the petitioners further submitted that in the present case, the link evidence is missing. After obtaining the sample, it was handed-over to the S.H.O. and the S.H.O. has given to whom and how it has reached to the S.P. and the S.P. directed to Moolsingh PW 4 to carry the sample to the F.S.L. on 19.8.1974. During the period from the date of obtaining the sample and it reaches to the F.S.L. except Moolsingh, no other evidence was examined. The prosecution has failed to prove the link evidence. For that, he relied upon a decision of the Supreme Court in State v. Daulatram, 1980 Cr. L.R. (SC) 84, AIR 1980 SC 1314 . Learned Counsel for the petitioner also brought to my notice that the samples were taken 30 grams each but it was found in the FSL 20 grams each. How it has reduced from 30 to 20 grams and it further creates a doubt whether the samples remained intact? The last submission was that even if the accused-persons are found guilty, they should be left with the sentence already undergone by them. 6. Mr. Thakur, learned Public Prosecutor, on the other hand, submitted that the site-plan clearly shows that the opium was found in possession of the accused-petitioners and recovery was made in pursuance of Mst. Gattu wife of Sukha. Though, the motbirs have been declared hostile but it so happens in the villages, in such cases, therefore no much weight should be given to that. The opium was found in conscious possession of the accused-petitioners. It is a fit case for convection. With regard to link evidence, the learned Counsel for the petitioners submitted that PW 4 Moolsingh was examined by the prosecution. The S.H.O. Malkhana handed-over the opium to PW 4 for carrying the sealed racket to the FSL. The sealed packet remained intact till it reached to the FSL, therefore, the conviction was justified. 7. After hearing the rival submissions and careful considering the material on record; the facts are not in dispute that 8 kg. opium was recovered from the house of Sukha though motbirs of the recovery did not support the prosecution case. The sealed packet remained intact till it reached to the FSL, therefore, the conviction was justified. 7. After hearing the rival submissions and careful considering the material on record; the facts are not in dispute that 8 kg. opium was recovered from the house of Sukha though motbirs of the recovery did not support the prosecution case. But when Gattu was called, she signed on the seizure memo and motbirs also signed on the seizure memo. Now, the question is whether the accused- petitioners were in conscious possession, if we see the site-plan, it appears that their residence is situated in Northwest corner of the site-plan. The pole, where from the opium alleged to have been recovered, has been shown in the site-plan as an open out skrits having no gates and anybody can have accessed to that place-without the knowledge of the accused persons. The accused Sukha was not found on the spot. As per the Statement of Babusingh (PW 1), who is from the Narcotics Department, stated that Sukha was not found at the house and his wife was called from the village. He could not recognise Mst. Gattu and Sukha. He stated that nothing was found in the house where they reside. After digging 2-3 ft. deep chabutari outside the pole, in a plastic bag the opium was found. Pyara (PW 2), a motbir witness, who pleaded ignorance of the search and recovery of the opium. Similarly, the other Motbir of recovery i.e. Roopa (PW 3), who also pleaded ignorance of the search and recovery. Considering the site plan from where the recovery of the opium was made. It is not safe to believe the prosecution story. 8. In Harish Chander. v. State of Rajasthan 1981 Raj. Cr. Cases 240 , it was observed that the mere fact that contraband opium was found in the 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. On the facts, the prosecution has failed to prove beyond reasonable doubt. 9. So far as the link evidence is concerned, the prosecution has produced Moolsingh (PW 4). On the facts, the prosecution has failed to prove beyond reasonable doubt. 9. So far as the link evidence is concerned, the prosecution has produced Moolsingh (PW 4). He stated that on the order of the S.P. dated 19.8.1974, he took the sealed packet from Bhilwara for delivery to FSL. No other person was examined for link evidence, while the sample was taken on 7.8.1974. After obtaining the sample, it was given to the police S.H.O. and from S.H.O. it was given to whom and how it reaches to him, who handed over to him, no body was examined. The sample was found 20 gram while the sample was taken 30 grams each. It further creates doubt, whether the sample was remained intact till it reaches to the FSL Jaipur. 10. In Daulatmm's Case (supra), their Lordships have taken the view that the contravend seized, samples taken and sealed, but the opium samples changing several hands with possibility of tempered with the samples, not ruled out. It is obvious that onus is on the prosecution to prove the entire case at the trial and the prosecution could not be allowed to fill up the gaps and lacuna left at the trial. In these circumstances, the view taken by the High Court was upheld as the prosecution has not proved that right from the stage of seizure of the opium upto the time when the samples were handed-over to the Public Analyst, the seals remained intact. 11. Considering both the points, in my opinion, there is no justification in convicting the accused-petitioners. 12. In the result, the revision petition is allowed. The conviction and sentence are set aside. The accused petitioners are acquitted of the offence. They are on bail, their bail-bonds are hereby discharged.Revision Allowed. *******