V. D. GYANI, J. ( 1 ) THIS appeal arises out of judgment dated 14th August, 1986, delivered by Addi. Sessions Judge, Nee much in S. T. No. 88/86. ( 2 ) THE appellant stands convicted on two counts a. for being found in possession 900 gms of Ganja (cannabis hemp), he has been sentenced to undergo six months R. I. with fine of Rs. 50/- or in default of payment of fine, to suffer fifteen days simple imprisonment. b. For being found in possession of 50 gms. of charas cannabis hashish, he has been sentenced to undergo 10 years R. I. with fine of Rs. 1,00,000/- or in-default of payment of fine to suffer five years R. I. under section 20-B (i) and (ii) of the N. D. P. S. Act, respectively. ( 3 ) PROSECUTION case in brief was that on 28. 5. 1985 on receipt of credible information to the effect that Ganja and Charas was stored in the appellants house admittedly in his absence. On search 900 gms of Ganja and 50 gms of Charas were recovered in two separate containers kept at different places. Since the appellant was not present, his monor son who was present in the house was arrested and has also been prosecuted for the above offence before the Juvenile Court. ( 4 ) APPELLANTS defence was one of denial, apart from his absence, he had no know ledge at all about the contraband being kept in the house, which stood in his fatherts name and about which there was a dispute between the brothers. ( 5 ) COMING to the first charge, Shri Joshi rightly contended that possession of Ganja was not made penal and notified to be an offence under the N. D. P. S. Act on the date of commission of offence. It came to be notified much later. There is no dispute about this factual position. Vice notification No. 30 390 (E) published on 30. 5. 1989 and brought into force from 13. 12. 1989. On the date of commission of offence there was no such notification under the N. D. P. S. Act, so far as the framing of charge relating to Ganja and charas is concerned. It does not require any - authority to support the contention. It is card in rule of criminal jurisprudence that penal laws are prospective in nature. 1989. On the date of commission of offence there was no such notification under the N. D. P. S. Act, so far as the framing of charge relating to Ganja and charas is concerned. It does not require any - authority to support the contention. It is card in rule of criminal jurisprudence that penal laws are prospective in nature. Sub-clause (1) of Article 20 of the Constitution enshrines this very principles. ( 6 ) IN view of the foregoing objection, the appellants conviction and sentence under the N. D. P. S. Act on the first charge relating to possession of Ganja cannot be sustained. It is liable to be quashed and accordingly quashed (this quashing does not put an end to the matter ). ( 7 ) LEARNED panel laywer for the State contended that on the basis of proved facts the appellant could still be convicted under section 34 of the State Excise Act. ( 8 ) SHRI Joshi learned counsel for the appellant argued that conviction u/s. 34 of the Excise Act cannot be recorded for reasons more than one. The Sessions Judge was not competent to try an offence punishable u/s. 34 of the Act. It is magistrate trial. The procedure for trial also different. The Sessions Judge could not usurp jurisdiction. It was also urged that there was no charge under section 34 of the Act. In absence of such charge a serious prejudice would be caused to the accused, if such an alteration of charge was to be permitted at the appellant stage. It was also argued that section 5 Cr. P. C. *sic such a trial procedure as adopted by the learned Judge. ( 9 ) APART from the absence factual legal lacuna even on facts appellants exclusive conscious possession of the contraband has not been established by the prosecution. The total evidence adduced by the prosecution consists of the statements of witnesses Ramesh Chandra a panch witness to the search and the Excise Inspector P. W. 2 Suresh Dubey. Admittedly accused was not present in the house at that time of search. No documentary evidence, such as municipal record is produced at the trial, so as to prove ownership of the house in question. On the other hand a public notice Ex. Admittedly accused was not present in the house at that time of search. No documentary evidence, such as municipal record is produced at the trial, so as to prove ownership of the house in question. On the other hand a public notice Ex. D-2 as published in local press much prior to the incident has been placed on record by the accused to show not only joint ownership but also joint occupation of the house. The Excise Inspector P. W. 2 was asked about it, but he admitted ignorance. ( 10 ) THE learned Judge of the trial court has approached this vital important aspect of the matter from a very wrong angle and observed that except for asking a question if the house was owned by the appellants brother. There was no other evidence. The brother has not been examined nor any defence evidence adduced as if it was the burden of the accused. It was prima facie for the prosecution to have established appellant's conscious possession and the prosecution has failed to discharge its initial burden which has been wrongly shifted on the accused by the trial Court: This finding recorded by the trial court on the point of possession in face of the deficient discrepant prosecution evidence cannot be sustained. It is liable to be set aside and accordingly set aside. ( 11 ) TO constitute criminal liability, possession of incriminating article must be actual, possession of such article by which a man is not conscious, cannot constitute an offence. In case of joint possession of recovery of opium from a house in which the accused lives, alongwith other person would not be sufficient to show that he was in possession with knowledge. There may be in a given case joint criminal possession of contraband depending on facts of the case. In the instant case it is not the prosecution case that the accused was in joint possession of charas alongwith his brother. ( 12 ) SECONDLY the place where from it was recovered is also important. According to Ramesh Chandra P. W. 2 charas was recovered from the easily adjoining house, whole house has not been even indicated by the prosecution. This witness has not been declared hostile. ( 13 ) RAMESH Chandra P. W. 2 the Excise Inspector has testified that he had recovered two thins containing Ganja and charas from the house. According to Ramesh Chandra P. W. 2 charas was recovered from the easily adjoining house, whole house has not been even indicated by the prosecution. This witness has not been declared hostile. ( 13 ) RAMESH Chandra P. W. 2 the Excise Inspector has testified that he had recovered two thins containing Ganja and charas from the house. Nothing has done by the prosecution to produce Municipal record about the ownership and occupation of the house in question. ( 14 ) IN face of the evidence of Ramesh Chandra charas was recovered from adjoining house, appellants conviction on that count cannot be sustained as no possession can be attributed to him, while admittedly he was not present at the time of search. No. oral evidence has been adduced to show that the house in question was the house of residence of the appellant. ( 15 ) FAR the foregoing reasons the appeal deserves to be allowed. It is accordingly allowed. The conviction and sentence as recorded by the trial court is to aside. Appellant is acquitted of the charges form against him. Fine if deposited be refunded to the appellant and he be set at liberty forth with. In case still continues an bail; his bail bands are discharged. Appeal allowed. .