Judgment ( 1 ) THE petitioner has challenged his conviction under Section 4 read with 9 of Opium Act and sentence of six months R. I. and a fine of Rs. 100/- or in default one month S. I. recorded by learned Chief Judicial Magistrate, Udaipur vide judgment dated 20-8-1985 and confirmed in appeal by learned Sessions Judge, Udaipur vide judgment dated 26-5-1988. ( 2 ) THE prosecution case is that Shri Dalip Singh Jain, Inspector, Narcotics Department, Chittorgarh with his staff went to village Akodia Kakeda in the morning on 29-8-1980 and searched the house of petitioner Bhagwanlal in the presence of his wife Bhagwani and motbirs Chhaganlal and Varda. 1. 400 kg. opium in a plastic packet was recovered from the house in the possession of the petitioner. The opium was kept inside of the fodder stored in the room. Two samples weighing 30 grams each were taken on the spot in a cigarette case and sealed and sent to the chemical examiner for analysis. The chemical examiner reported that article was contraband opium. Challan was submitted against the petitioner and his wife Smt. Bhagwani. The trial was held under Sections 4/9 of the Opium Act and the learned Chief Judl. Magistrate, Udaipur acquitted Smt. Bhagwani but convicted the petitioner that the recovery of the contraband opium was proved beyond reasonable doubt from the conscious and exclusive possession of the petitioner. The learned Chief Judicial Magistrate held that Smt. Bhagwani cannot be convicted simply on the basis of her presence at the time of search and the recovery. The room was in the exclusive possession of the petitioner and the circumstances clearly establish that the petitioner had the knowledge of the opium kept inside of the fodder and in fact it was intentionally concealed by him. Hence the offence under Sections 4/9 of the Opium Act stood proved against him beyond reasonable doubt. The learned Sessions Judge upheld the above findings. ( 3 ) I have heard the learned counsel for the petitioner and learned Public Prosecutor and perused the judgments of the learned Courts below and also the evidence on record. ( 4 ) LEARNED counsel for the petitioner has streneously argued that the prosecution has failed to prove the conscious possession of the petitioner of the opium which is said to have been recovered from a room of his house. ( 4 ) LEARNED counsel for the petitioner has streneously argued that the prosecution has failed to prove the conscious possession of the petitioner of the opium which is said to have been recovered from a room of his house. The petitioner was not present at the time of search and he had no knowledge that the opium was lying in plastic packet inside the room of his house. There are other rooms also in the Gwadi nearby this room in which petitioners brother Gokul is also living and the fodder in the room is also kept by him, therefore, exclusive possession of the petitioners room from where the opium has been recovered is also not proved. Therefore, the learned Courts below have committed error in drawing an inference that the contraband opium was kept in the room of his house by the petitioner. ( 5 ) LEARNED P. P. has contended that Smt. Bhagwani wife of the petitioner was present at the time of search and the lock of the room was opened by her and the room is exclusively in possession of the petitioner. On the basis of the above facts and circumstances the learned Courts below have rightly come to the conclusion that the contraband opium was kept by the petitioner and it was recovered from his exclusive and conscious possession. In view of this matter it is argued that the concurrent findings of the learned Courts below requires no interference. ( 6 ) I have carefully considered the rival contentions and the case of Harish Chandra v. State of Rajasthan reported in 1981 Raj Cri C 240. ( 7 ) IT is true that the recovery of the opium inside the room of the house of the petitioner is not sufficient to draw an inference that the petitioner had kept the same there. The prosecution should prove beyond reasonable doubt that it was in the knowledge of the petitioner that the contraband opium is lying inside the room of his house in his possession. The prosecution is also bound to further prove that the room from where the contraband opium has been recovered is in the exclusive possession of the petitioner. ( 8 ) IT is nowhere mentioned in the Panchnama Ex. P/1 and FIR Ex. P/4 that wife of the petitioner Smt. Bhagwani opened the lock of the room. The prosecution is also bound to further prove that the room from where the contraband opium has been recovered is in the exclusive possession of the petitioner. ( 8 ) IT is nowhere mentioned in the Panchnama Ex. P/1 and FIR Ex. P/4 that wife of the petitioner Smt. Bhagwani opened the lock of the room. It is not also mentioned in the site map Ex. P/2 that the room was locked and it was opened by Smt. Bhagwani nor this fact has been shown in the site map. ( 9 ) PW 1 Rajkishore has stated though in cross-examination that the lock of the room was opened by Smt. Bhagwani but this fact has not been stated by other witnesses viz. Dalip Singh Jain PW 2, Vijay Singh PW 3 and Raghuvir Singh PW 7. Motbir witnesses Varda PW 4 and Chhaganlal PW 5 have not supported the prosecution case. Hence an important circumstance of opening the lock by Smt. Bhagwani of the room from where opium was recovered is not at all proved in this case. ( 10 ) IT is undisputed fact that at the time of alleged search and recovery the petitioner was not present there and he was out of village for last 3-4 days. Therefore, I agree with the learned counsel for the, petitioner that the statement of Rajkishore is not reliable on the point that Smt. Bhagwani had opened the lock of the room. ( 11 ) SHRI Vijay Singh PW 3 member of raid party had deposed that no opium could be recovered on the search of the residential room of the petitioner. Then search was made of the hut in which the fodder was stored. Smt. Bhagwani told that it was not part of her house. The opium was recovered from the room where fodder was stored and this witness has reiterated that Smt. Bhagwani said on the spot that it did not belong to her but it belong to her brother-in-law. In the cross-examination Shri Vijay Singh has again deposed that Smt. Bhagwani had told on the spot that the room did not belong to her. ( 12 ) THE learned Courts below have not properly considered the statement of this witness while appreciating the entire evidence on record as the statement of this witness cannot be thrown away merely because he has been declared hostile by the prosecution. ( 12 ) THE learned Courts below have not properly considered the statement of this witness while appreciating the entire evidence on record as the statement of this witness cannot be thrown away merely because he has been declared hostile by the prosecution. ( 13 ) THE site map shows that in the same Gwadi the petitioner and his brother Gokul are living and at same distance this room is situated and it cannot be concluded that this room is part of the residential portion of the petitioner and must be in his possession. Therefore, I come to the conclusion that the prosecution has failed to prove an important incriminating circumstance that the room was locked and it was opened by Smt. Bhagwani with key in her possession. I find myself unable to agree with the conclusion of the learned Courts below that the room was locked and opened by Smt. Bhagwani. ( 14 ) ON the basis of the above facts and circumstances borne out from the evidence on record the exclusive possession of the petitioner over the room from where the opium is a alleged to have been recovered is not proved. It is not also proved that the petitioner had the knowledge that the contraband opium was lying inside the room or that it was kept there by him, therefore, I am of the view that the prosecution has failed to prove the recovery of the contraband opium out of the conscious and exclusive possession of the petitioner and, therefore, the offence under Sections 4/9 of the Opium Act has not been established against the petitioner. In view of the foregoing discussions the impugned judgments are liable to be set aside. ( 15 ) CONSEQUENTLY, the instant petition is hereby accepted and the impugned judgment dated 20-8-1985 passed by learned C. J. M. , Udaipur and judgment dated 26-5-1988 passed by learned Sessions Judge, Udaipur are hereby set aside. Petitioner Bhagwanlal is acquitted of the offence under Sections 4/9 of the Opium Act. His bail bonds are discharged. Petition allowed.