This revision is directed against the judgment and order dated 11.12.84 of the learned Sessions Judge, Dibrugarh in Criminal Appeal No. 37 (3)/84. By the said judgment and order of the learned lower appellate Court dismissed the appeal filed by the accused persons upholding the conviction and sentence passed by the learned Sub-Divisional Judicial Magistrate, Sadiya in GR Case No.2 of 1981 under section 5 (a) of the Assam Opium Act, 1947, hereinafter referred to as 'the Act'. 2. The prosecution story in brief is that on 6.1.81 Sub-Inspector of Police - Abdul Matlib, (PW 4 ) alongwith Police Constable (PW 3) on receiving secret information searched the house of the accused-petitioners on the strength of a search warrant issued by the Sub Divisional Judicial Magistrate, Sadiya. The police party recovered 3 Kg. 600 grams of contra­band opium which was kept under the 'Chang Ghar' and 5 grams which was kept in a tin under the bed of the accused persons inside their dwelling house. Admittedly, at the time of search and seizure the accused Chandra Gogoi was not present in the house. Prosecution examined four witnesses, viz 2 seizuie witnesses, PWs 1 and 2 and S. I. of Police (PW 4) and the Constable (PW 3 ). Both the accused pleaded not guilty to the charge and pleaded that the accused Chandra Gogoi at the relevant time was away from the place and to prove this fact two witnesses have been examined as DWs 1 and 2. 3. Main contention of Mr. Medhi, learned counsel for the petitioner is that the learned Courts below mis directed themselves in appreciating the evidence on record and for that matter by putting the onus of proof squarely on the accused persons. In this connection, the learned counsel has drawn my attention to a decision of this Court rendered by a Division Bench in Abdul All vs. The State, AIR 1950 Assam 152. 4. According to Mr. Medhi, the prosecution failed to prove the conscious possession of opium which is most essential requirement under the Act to bring home the charge. On the other hand, Mr. Singh, learned Public Prosecutor has urged that both the Courts below found on facts that the opium in question was seized from the house of accused persons and as such in this revision petition this Court need not re-appreciate or re-examine the evidence on record. On the other hand, Mr. Singh, learned Public Prosecutor has urged that both the Courts below found on facts that the opium in question was seized from the house of accused persons and as such in this revision petition this Court need not re-appreciate or re-examine the evidence on record. Another point has been raised by Mr. Medhi that there was non-compliance of section 100 CrPC in conducting the search and in reply Mr. Singh has urged that if there was some irregularity it will not vitiate the trial and in support the learned counsel has placed on the decision in Premadhar Rajbansi vs. State of Assam, (1984) 1 GLR 459. 5. Section 5 (a) of the Act provides for punishment for contravention of the provisions of the Act and Rules made in respect of imports, exports transports or possession of opium. In the case in hand, we are concerned with the possession of opium. Section 28 of the Act provides that in trial under clauses (a) to (c) of section 5, it shall be presumed, unless and until the contrary is proved, that the accused has committed the offence with which he is charged in respect of the opium for the possession of which he fails to account satisfactorily. 6. Sections 5 and 24 of the Act come for consideration before a Division Bench of this Court Abdul Ali (supra) and it was held that possession of opium within the meaning of section 5 (a) must imply knowledge and it must be conscious possession making some kind of control possible, or, in other words, there must be mens rea or guilty knowledge before a person could be convicted of an offence under section 5 (a) for possessing opium. It was further held that a person charged with the possession of opium must be shwon to have knowledge of the existence of the opium in his house before he can be said to be in possession of it. Mere recovery of opium from a house in which he lives alongwith other persons, would not be sufficient to show that he was in possession with knowledge of its existence. 7. Mere recovery of opium from a house in which he lives alongwith other persons, would not be sufficient to show that he was in possession with knowledge of its existence. 7. The Court further held that unless possession on the part of the accused has been proved, no presumption under section 28 of the Act arises in favour of the prosecution, and the burden of proving conscious possession of the accused remains on the prosecution and that burden is not shifted to the accused by anything that is contained in section 28 of the Act. 8. On going through the judgment of the learned trial Court I find that the law laid down by this Court in the above decision was not at all consi­dered. From the evidence of PWs 1 and 2, who were the seizure witnesses, categorically stated they did not see the recovery of opium from the house of the accused persons. That apart from the seizure list ( Exhibit 1 ) I find that 3 Kg. 600 Grams of opium was recovered not from inside the house of the accused but from outside their house. The learned trial Court has observed that the Court did not find any clear evidence that the 'Chang Ghar' from where the above 3 Kg. 600 grams of opium was recovered was accessible to the public. In fact, there is no evidence on this point by the prosecution and the above finding of the learned trial Court is based on surmises. The learned trial Court has further observed as follows- "Accused persons never explained under what circumstances the opium come into their house." This also contrary to the ratio laid down by this Court. In facts, it was the duty of the prosecution to prove the above facts which the Courts below ignored. 9. Regarding 5 grams of opium, which was found inside the house the accused Smti Tileswari in her statement under 313 CrPC categorically stated that it was put by the police personnel to implicate her. There is nothing to indicate that the body of the police personnel PWs 3 and 4, were searched before they enter the house of the accused for search. So, the plea of of the accused Smti Tileswari Gogoi cannot be thrown out. 10. There is nothing to indicate that the body of the police personnel PWs 3 and 4, were searched before they enter the house of the accused for search. So, the plea of of the accused Smti Tileswari Gogoi cannot be thrown out. 10. Regarding other accused namely - Chandra Gogoi, his plea as stated above, was that he was away at the time of occurrence and in support two witnesses have been examined. It is settled law that merely because a witness is examined by defence, his evidence should not be discarded. So, the stand taken by the accused Chandra Gogoi that he was away at the time of occurrence cannot be also rejected outright inasmuch as there is nothing to disbelieve the two witnesses examined by the defence. In fact, no ground has been given by the Courts below for rejecting their evidence. 11. From the seizure list (Ext 1) as stated above 3 Kg. 600 grams of opium were found outside the house of the accused person. I have already stated that there is nothing on record to show that public had no access to that place as such it cannot be held that the said recovery of 3 Kg 600 grams of opium can be treated as conscious possession of the accused persons. 12. Situated thus, I hold that the prosecution has failed to prove miserably regarding conscious possession of opium by the accused persons and as such the question of presumption under section 28 cannot arise in the case in hand. 13. Mr. Medhi has urged another point regarding examination of the accused persons under section 313 CrPC. I have perused the state­ments and in my opinion this was not done in proper manner inasmuch as in the questions it was not specifically put that 5 grams of opium was found inside the house of the accused persons and 3 Kg. 600 grams in the 'Chang Ghar.' In this connection, Mr. Medhi drawn my attention to the decision of this Court dated 24.1.84 in Criminal Revision No. 10 of 1978... This is another ground for which the impugned judgment is liable to be set aside. 14. For what has been stated above, I hold that the prosecution has failed to prove conscious possession of the opium by the accused persons. Medhi drawn my attention to the decision of this Court dated 24.1.84 in Criminal Revision No. 10 of 1978... This is another ground for which the impugned judgment is liable to be set aside. 14. For what has been stated above, I hold that the prosecution has failed to prove conscious possession of the opium by the accused persons. I further hold that for not putting proper questions while examining the accused persons under section 313 CrPC prejudice has been caused to them. In the result, I find merit in the present revision petition and accord­ingly it is allowed by setting aside the conviction and sentence imposed by the Courts below. Accused persons are discharged from the liability of the bail bond. The Rule is made absolute.