JUDGMENT 1. - This appeal has been preferred by the State against the impugned judgment dated 22.12.2008, passed by the Special Judge, NDPS Cases, Pratapgarh in Sessions Case No. 2/2003, by which the learned trial Court acquitted the respondent Amba Lal S/o Bhawani Ram from the offence under Section 8/1 of the NDPS Act, 1985. 2. As per the prosecution story, on 03.05.2002, Puran Singh, Station House Officer of Police Station Chhoti Sadari received a sleuth information about the possession of the opium from Amba Lal and in pursuance to that information, after completing the formalities, Station House Officer, Chhoti Sadari conducted search in the premises of Amba Lal and 1kg 300 gms opium was recovered. 3. After usual investigation and after receiving the report from Forensic Science Laboratory, Jaipur, a charge sheet against the respondent in the Court of Special Judge, NDPS Cases, Pratapgarh has been filed. 4. Learned trial Court charged the respondent for the offence under Section 8/18 of the NDPS Act to which he did not plead guilty and claimed to be tried. Prosecution examined as many as 17 witnesses to prove the offence charged. The incriminating evidence adduced by the prosecution against the respondent was put to him for explanation under Section 313 of the Cr.P.C. and in defence respondent examined only one witness DW 1 Poonam Chand. The learned trial Court after hearing both the parties acquitted the present respondent under Section 8/18 of the NDPS Act. Aggrieved by that judgment, the Slate has preferred this leave to appeal. Leave to appeal is granted. 5. Accordingly, Office is directed to register this leave to appeal as appeal. 6. I have heard the learned counsel for the parties on appeal. 7. Learned Public Prosecutor contends that the judgment of the learned trial Court suffers from illegality, impropriety or perversity on the ground that opium was recovered from the place where the respondent was constructing the house and the learned trial Court came to the conclusion that recovery was made from the open place "Bada" and which was not in exclusive possession of the respondent, he further argued that the judgment passed by the learned trial Court is erroneous, therefore, the same may be set aside. 8. 8. Learned counsel for the respondent submits that as per the evidence of PW 6 Subhash Chandra, the patwari halka, at the relevant time, who deposed that the place of recovery which is "Araji-235" in revenue record, belonged to Modi Ram, Shyam Lal as half portion and half portion of said land was in possession of Bhagat Ram, Rameshwar, Amba Lal, Kanku. 9. Learned Public Prosecutor submits that "Bada" may be open place but the construction work started by the present respondent, therefore, he should have been convicted under Section 8/18 of the NDPS Act. 10. I have perused the judgment and the record available. The learned trial Court held that as per the evidence of PW 6 Subash Chandra that the "Bada" was in the common ownership of respondent as well as in common possession of other persons namely Modi Ram, Shyam Lal, Bhagat Ram, Rameshwar, and Kanku, therefore, it cannot be said that the opium was recovered from the conscious possession of the respondent. 11. On perusal of the statement of PW 6 Subash Chandra this whose categorically deposed that the open place from which the opium was recovered belonged to other persons also. Further, he deposed in cross- examination that he did not know that which person started construction work the land in question. 12. In view of above fact, the conclusion drawn by the learned trial Court that the place of recovery cannot be said to be in exclusive possession of respondent, cannot be said to be erroneous, perverse, illegal or improper. 13. Accordingly, the appeal preferred by the State is dismissed and the impugned judgment dated 22.12.2008, passed by the Special Judge, NDPS Cases, Pratapgarh in Sessions Case No. 2/2003 is maintained.Appeal Dismissed. *******