J. G. CHITRA, J. ( 1 ) THE petitioner is assailing correctness, propriety and legality of the order of conviction and sentence recorded against him by learned Chief Judicial Magistrate, Dhar in the matter of Cr. C. No. 2154/82. ( 2 ) THE prosecution case in brief is that on 2-11-82 a truck bearing No. CPH-7173 was apprehended by police on information that opium was being transported through it. The said truck was belonging to Satyanarayan s/o Amarchand Sharma and was driven by the petitioner. Prosecution alleged that co-accused Murari s/o Ramsewak was a person travelling through said truck by taking lift temporarily. When the said truck was searched, 4 quintals of opium was found which was stored in a concealed chamber which was covered by wooden and metal planks. After the said seizure, all the accused were put to trial and trial was over, the learned trial Court acquitted accused Murari s/o Ramsewak and Satya Narayan s/o Amarchand Sharma; however convicted the present petitioner by sentencing him to undergo RI for two year and to pay fine of Rs. 2000/-, in default, to undergo further RI for two months. Learned trial Court held that the owner of the said truck- Satyanarayan was not having the knowledge of private/secret chamber and opium stored in it. Learned trial Court acquitted Murari by holding that he was the person travelling in the said truck by taking lift temporarily. Shri Ukas submitted that the State Govt. filed an appeal challenging the order of acquittal against those two person. However, that appeal was dismissed and the acquittal was confirmed. Shri Ukas argued that as the petitioner happens to be a driver, he is not supposed to have the knowledge in respect of said secret/private chamber which was not traceable at the time of initial search of the said truck. He pointed out that said opium was seized by police after opening those wooden and metal planks. It is his argument that prosecution has not proved that the present petitioner was in possession of the said opium. ( 3 ) SHRI Ukas submitted that the learned trial Court committed the error of law in coming to the conclusion that petitioner was in possession of the said opium, and the said error of law was repeated by the appellant Court which dismissed the appeal of the petitioner. ( 3 ) SHRI Ukas submitted that the learned trial Court committed the error of law in coming to the conclusion that petitioner was in possession of the said opium, and the said error of law was repeated by the appellant Court which dismissed the appeal of the petitioner. He submitted that the order of conviction and sentence needs to be set aside as illegal and petitioner needs to be acquitted. ( 4 ) SHRI Desai, Submitted that the order of conviction and sentence is correct, proper and legal and there is no need of setting aside it. ( 5 ) POSSESSION always requires two factors to be proved (i) Knowledge of the thing which such person is supposed to have (ii) the dominion over such article. If these two factors are proved then it cannot be said that such a person is in conscious possession of the article. Therefore, it is the duty of the prosecution to establish that present appellant was having the knowledge of the said secret/private chamber and the opium which was stored in it. It is pertinent to note that at the time of initial search, raiding party was unable to find said opium and only on opening the wooden and metal planks, the said opium was seized. The way in which the opium was concealed by itself shows that that was not likely to be known by a person unless he was having specially a knowledge about that. It is pertinent to note here that learned trial Court has acquitted the owner of the said truck Satyanarayana by holding that he was not supposed to have the knowledge of said secret/private chamber because the said truck was being driven by the present petitioner. His acquittal has also been confirmed by the appellant Court. The creation of the said secret/private chamber could not have been done unless consented to by Satyanarayan Sharma. A driver is not supposed to create such a private secret chamber without consent of the truck owner. The possibility cannot be ruled out that after creating secret/private chamber, the owner of the truck would have handed over the truck to petitioner for the purpose of carrying the commodities stored in the said truck. A driver is not supposed to create such a private secret chamber without consent of the truck owner. The possibility cannot be ruled out that after creating secret/private chamber, the owner of the truck would have handed over the truck to petitioner for the purpose of carrying the commodities stored in the said truck. In the present case there is no evidence to prove that the present petitioner was having the knowledge of such secret chamber and the opium which was stored in it. ( 6 ) S. 9 of Opium Act 1878 requires the prosecution to prove the possession of opium against accused in a trial. Even presumption which has been indicated by provisions of S. 10 cannot help the prosecution so far as present case is concerned because that presumption is in respect of the identity of the commodity as opium. S. 10 provided that the article which is the subject-matter of charge and trial, would be presumed to be opium unless contrary is proved. ( 7 ) IN the present prosecution the prosecution was unable to prove beyond reasonable doubt that the petitioner was in conscious possession of the opium which has been seized from the said truck from secret/private chamber. The owner has been acquitted and his acquittal has been confirmed. Thus, I come to the conclusion that the order of conviction and sentence which has been passed against the petitioner cannot be sustained, by holding that trial Court has committed an error of law in convicting and sentencing petitioner which has been repeated by the appellant Court. The order of conviction and sentence is hereby set aside. The petitioner is acquitted. The fine, if paid, be refunded to him. The opium be disposed of in view of relevant provision of the Opium Act 1878. Bail bond executed by the petitioner, stands discharged. Order accordingly. .