JUDGMENT 1. - The abovenamed accused-appellant has preferred this appeal against the judgment and order dated 5.2.1999 passed by the learned Special Judge, NDPS Cases, Chittorgarh in Sessions Case No. 191/97 (38/96) by which he convicted the accused-appellant for the offence u/s. 8/18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act') and sentenced him to undergo ten years' Rigorous Imprisonment and to pay fine of Rs. 1 lac, in default of payment of fine, to further undergo two years' R.I. 2. The facts giving rise to this appeal, in short, are as follows:- On 3.4.1996 at about 11.45 a.m., PW-4 Rajendra Pareekh, Patrolling Officer, Rajasthan Excise Department, while on patrolling duty alongwith PW-3 Shantilal, Assistant Excise Officer and. PW-6 Harnath Singh, Excise Inspector, received a secret information at village Sadas to the effect that accused-appellant was selling illegal liquor to the customers in his house at Bandanwada and PW-4 Rajendra Pareekh reduced that information in writing in Ex.P/6 as per the provisions of Section 47 of the Rajasthan Excise Act, 1950 and, thereafter, he alongwith raiding party consisting of PW-3 Shantilal and PW-6 Harnath Singh went to the house of the accused-appellant and he also took two motbirs PW- 1 Madhu Singh and PW-2 Devilal and during search, no illegal liquor was found, but on the contrary, he found an iron tin lying on the drum and on opening that iron tin, a polythene bag containing opium was found in it. Thereafter, it was weighed and its weight was found to be 1 kg., out of which two samples of 30 grms. each were taken and sealed separately on the spot and the remaining opium was also sealed separately on the spot. PW-4 Rajendra Pareekh prepared the fard of search and seizure on the spot and the same is Ex.P/1. Ex.P/2 is the site plan. The accused-appellant was arrested through arrest memo Ex.P/3. PW-4 Rajendra Pareekh sent the information to superior officer and the same is Ex.P/7. PW-4 Rajendra Pareekh deposited the recovered articles and, the samples in the Malkhana. Thereafter, one sample was sent to State/Central Public Health Laboratory, Jaipur and the report of the State/Central Public Health Laboratory, Jaipur is Ex.P/25 where it was reported that the sample, on examination, was found to be of opium and its morphine content was 5.01 per cent (calculated as anhydrous morphine). Thereafter, one sample was sent to State/Central Public Health Laboratory, Jaipur and the report of the State/Central Public Health Laboratory, Jaipur is Ex.P/25 where it was reported that the sample, on examination, was found to be of opium and its morphine content was 5.01 per cent (calculated as anhydrous morphine). After usual investigation, challan was filed against the accused-appellant for the offence u/s. 8/18 of the NDPS Act in the Court. On 17.10.1996, the learned Addl. Sessions Judge No. 1, Chittorgarh framed charge for the offence u/s. 8/18 of the NDPS Act against the accused-appellant. The charge was read over and explained to the accused-appellant, who pleaded not guilty and claimed trial. During trial, the prosecution in support of its case examined as many as 8 witnesses and got exhibited some documents. Thereafter, statement of the accused-appellant u/s. 313 Cr.P.C. was recorded. In defence, two witnesses were produced by the accused-appellant. After conclusion of trial, the learned Special Judge, NDPS Cases, Chittorgarh through his judgment and order dated 8.2.1999 convicted the accused-appellant for the offence u/s. 8/18 of the NDPS Act and sentenced him in the manner as indicated above holding inter alia that prosecution has proved its case beyond all reasonable doubts against the accused-appellant for the offence u/s. 8/18 of the NDPS Act. Aggrieved from the said judgment and order dated 8.2.1999 passed by the learned Special Judge, NDPS Cases, Chittorgarh, the accused-appellant has preferred this appeal. 3. In this appeal, the main argument, which has been advanced by the learned counsel for the accused-appellant, is that from papers as well as from the evidence on record, the fact that opium which is alleged to have been recovered in the present case, was in conscious possession of the accused-appellant, has not been proved by the prosecution. In other words, prosecution has not been able to prove that at the time of recovery, the concerned place from where opium was recovered, was in exclusive possession of the accused-appellant. 4. On the other hand. the learned Public Prosecutor supported the inmpugned judgment and order passed by the learned Special Judge, NDPS Cases, Chittorgarh. 5. I have heard the learned counsel for the accused-appellant and the learned Public Prosecutor and perused the record of the case. 6. 4. On the other hand. the learned Public Prosecutor supported the inmpugned judgment and order passed by the learned Special Judge, NDPS Cases, Chittorgarh. 5. I have heard the learned counsel for the accused-appellant and the learned Public Prosecutor and perused the record of the case. 6. To appreciate the above contention raised by the learned counsel for the accused-appellant, the evidence and documents of the present case have to be seen. 7. The material witnesses pertaining to the fard of search and seizure Ex.P/1 are PW-1 Madhu Singh and PW-2-Devilal both inotbirs and PW-3 Shantilal, PW-6 Harnath Singh and PW-4 Rajendra Pareekh. 8. From the judgment of PW-4 Rajendra Pareekh, it appears that during search, no illegal liquor was'Tound in the house, but during search, from Kachha Keluposh, one iron box containing opium was recovered. 9. PW-1 Madhu Singh and PW-2 Devilal both motbirs have been declared hostile and they have admitted in their cross-examination that the house of the accused-appellant was Kevluposh (Jhumpa). 10. PW-3 Shantilal, who was one of the members of the Raiding Party and who was Assistant Excise Officer, has admitted in cross-examination that he did not enquire about the ownership of the house. 11. PW-4 Rajendra Pareekh admits in examination-in-chief that no illegal liquor was found, but during search, from the house (Kachha Keluposh), the said iron box containing opium was recovered, in cross-examination, this witness admits that it is correct to say that in the house of the accused-appellant, not a single lock was found any where, meaning thereby it was an open house. 12. Similar is the judgment of PW-6 Harnath Singh. 13. Apart from the above evidence, prosecution has produced PW-5 Janibai, who was Sarpanch to prove the fact that the house in question belonged to accused-appellant, but this witness has been declared hostile. 14. Looking to the above evidence, it appears : (1) That PW-4 Rajendra Pareekh and his party went to the house of the accused-appellant on secret information to the effect that the accused-appellant was having illegal liquor in his house. (2) That during search, no illegal liquor was found in that house. (3) That the said house was Kachha Keluposh. (4) That no lock on any corner of the house was found, meaning thereby it was an open Kachha house. (5) That an iron box containing opium was recovered from open place in the Kachha Keluposh. (2) That during search, no illegal liquor was found in that house. (3) That the said house was Kachha Keluposh. (4) That no lock on any corner of the house was found, meaning thereby it was an open Kachha house. (5) That an iron box containing opium was recovered from open place in the Kachha Keluposh. (6) That both motbirs PW-1 Madhu Singh and PW-2 Devilal have been declared hostile. (7) That PW-5 Janibai, Sarpanch, who was produced by the prosecution to prove that the house in question belonged to accused-appellant, has been declared hostile. 15. Now the question for consideration is whether in the facts just discussed above and circumstances of the case, conscious possession over the house (Kachha Kaleposh) in question can be said to be of accused-appellant or not. 16. Proof of possession is essential for making conviction u/s. 8/15 or 18 of the NDPS Act, if there is a case against the accused-appellant that contraband opium was recovered from his possession in the house. In this respect, it may be stated that the term possession has not been defined in the Act, it can clear in this section by Judicial decisions like House of Lord in the case of Warner v. Metropolitan Police Commissioner, 1969 (2) AC 256 and approval by the Hon'ble Supreme Court in Inder Sain v. State of Punjab, AIR 1973 SC 2309 , the term possession would apply dominion and control. The exercise of dominion would be possible only, if there is knowledge of its existence or presence at a particular place. A person can be responsible for something which was found on the premises, which are in his control but in such a case there should be something in the circumstances that the said person has the knowledge of the existence of the contraband on the said premises. 17. Section 15 or 18 of the NDPS Act provides for punishment for possession or transportation of opium. Possession is made up of two elements; firstly, the corpus - the element of physical control and secondly, the animus or intent with which such control is exercised. It is conscious possession, which is contemplated by penal statute, which provides and penalises possession of any contraband article or thing. 18. Possession is made up of two elements; firstly, the corpus - the element of physical control and secondly, the animus or intent with which such control is exercised. It is conscious possession, which is contemplated by penal statute, which provides and penalises possession of any contraband article or thing. 18. It may be pointed out here that so far as the possession is concerned, corpus without animus is ineffective, but if animus is established it does not matter whether the possession is actual or constructive. 19. In R. v. Boyesen, 1982 AC 768 , at pp. 773-774, Lord Scarman said:- "Possession is a deceptively simple concept. It denotes a physical control or custody or control. You may possess a thing without knowing or comprehending its nature; but you do not possess it unless you know you have it." 20. From the above discussion, it appears that it is necessary to bear in mind that in possession there is a necessary mental element of intention, involving a sufficient knowledge of the presence of the drug by the accused. 21. Applying the above principles, the present case is being examined. 22. In the present case, as discussed above, to hold that at the time when alleged opium was recovered from the open Kachha house, it was in the exclusive possession of the accused-appellant, would be contrary to the well established principles of law and since there was no lock and it was open house, therefore, it can be said that alleged recovery of opium was made from open place and not from the exclusive possession of the accused-appellant and since it was unlocked house (Kachha Keluposh), the possibility that the said iron box containing opium could have been planted by anybody, cannot be ruled out and thus, the findings of the learned Special Judge that it was recovered from the possession of the accused-appellant are liable to be set aside. Under these circumstances, conviction of the accused-appellant for the recovery of the so-called opium cannot be upheld. 23. In this respect, the decision in Mohd. Alam Khan v. Narcotics Control Bureau, AIR 1996 SC 3033 may be referred to, where Hon'ble Supreme Court has held that where ownership and possession of premises by accused from which contraband articles were seized not established, accused entitled to be acquitted. 23. In this respect, the decision in Mohd. Alam Khan v. Narcotics Control Bureau, AIR 1996 SC 3033 may be referred to, where Hon'ble Supreme Court has held that where ownership and possession of premises by accused from which contraband articles were seized not established, accused entitled to be acquitted. Similarly, this Court in Gordhan v. State of Rajasthan,1991 Cr.L.R. (Raj.) 7 , held that if the search is made from the house in joint possession, accused cannot be convicted. 24. On this point, two rulings of this Court in Union of India v. Hari Ram, 1994 Cr.L.R. (Raj.) 662 and Gulam Mohammed & Ann v. The State of Rajasthan, 1994 Cr.L.R. (Raj.) 706 may also be seen. 25. This Court in Megha Ram v. State of Rajasthan, RLW 1989 (1) 145 has held that since the door of the Jhumpa in the dhani from where opium was recovered, was not locked, therefore, presumption cannot be drawn that accused was in the exclusive possession of the Jhumpa and thus, conviction in that case was set aside. 26. The facts of the present case are similar to the facts of the above case and looking to the above legal principles in mind, it can easily be said that there is substance in the submission made by the learned counsel for the accused-appellant and it can be held that the place from where PW-4 Rajendra Pareekh recovered the alleged opium was not in exclusive and conscious possession of the accused-appellant. 27. For the reasons stated above, the findings of the learned Special Judge, convicting the accused-appellant for the offence u/s. 8/18 of the NDPS Act are liable to be set aside and this appeal deserves to be allowed and the accused-appellant is entitled to acquittal.Accordingly, this appeal filed by the accused-appellant is allowed and the impugned judgment and order dated 8.2.1999 passed by the learned Special Judge, NDPS Cases, Chittorgarh are set aside and the accused-appellant is acquitted of the charge for the offence u/s. 8/18 of the NDPS Act. Since he is in jail, he be released forthwith, if not required in any other case.Appeal allowed. *******