Milap Chand Jain, J.
1. The petitioners along with Shri Narain and Dhansingh were prosecuted for the offence under Section 4/9 of the Opium Act. Dhansinah absconded during the trial and the accused Shri Narain confessed his guilt so he was convicted and sentenced. The petitioners were tried by the Munsif and Judicial Magistrate Neembaheda who by his order dated December 30 1975, found the petitioner guilty under Section 4/9 of the Opium Act and sentenced each of them to 24 months' rigorous imprisonment and to pay a fine of Rs. 500/-, in default of payment of fine to undergo simple imprisonment for six months. In appeal the petitioners were unsuccessful and their conviction and sentences were maintained
2. The prosecution story is that on February 28, 1972 at about 4 30 a.m. the Preventive Inspector Narcotic Shri Govind Gurnani along with Gopal Lal and Nandlal Seni Preventive Inspectors and members of the police pany spotted an ambassador car No. DLK 6700 coming from towards Neemach at the Municipal octopi out-post of Neembaheda. The car stopped and search was taken. The car was being driven by driver Dhanna. Yashpal was found sitting on the front seat and Shri Narain and Niranjan Lal were found sitting on the back seat. The dicky of the car was got opened and an attache was found in the dicky and on opening of the attache bags were found containing 18 kg. 200 gms. opium including the weight of the gunni bags Samples were taken from the bags. Report Ex.P. 9 was lodged at the police station Neembaheda. Samples were sent for chemical examination and samples contained 11.11%p.c. of 'morphine'. After completion of the investigation chargesheet was presented against the four accused persons. After trial the present petitioners were found guilty of the said offence and were convicted and sentenced as aforesaid. It was maintained in appeal. Hence this revision petition.
3. I have heard Shri M.L. Garg, learned counsel for the petitioner and Shri L.S. Udawat learned Public Prosecutor for the State.
4. On behalf of the present petitioners it is contended that it is not proved by the prosecution that the present petitioners were in possession of opium. The opium was found in an attache lying in the dicky. No key was found in possession of the present petitioners nor there is any other material on record on the basis of which it can be said that petitioners were in possession of opium. There are no other circumstances appearing in the evidence of the prosecution on the basis of which opium in any way can be related with the present petitioners.
5. It may be stated here that in order to hold these persons guilty of the offence under section 4/9 of the Opium Act it is necessary for the prosecution to prove that the accused was in possession of opium. Possession can be proved when physically the contraband article may be found in possession or there may be such circumstances on the basis of which it can be said that the contraband article actually was in the conscious possession of the accused. In the present case in my opinion the prosecution has utterly failed to prove that the present petitioners were in possession of the opium. The present petitioners were not the only occupants of the car. Along with them there was one other traveller namely Shri Narain and the driver of the car namely Dhansingh. When any article is found in the dicky of the car then possession of that article cannot be attributed to all the occupants of the vehicle. There has to be some other material on the basis of which possession of that article found in the dicky can be connected with occupant or occupants of the vehicle. In the absence of any such material as stated above, possession cannot be attributed to all the occupants. In the present case Shri Narain has confessed his guilt. On the basis of that conviction it can be taken that Shri Narain was in possession of opium. So far as the present petitioners are concerned there is no other relevant malarial circumstances available in the prosecution case on the basis of which it can be found that the petitioners were in possession of opium. As such in my opinion, offence has not been brought home to the present petitioners beyond all reasonable doubt. So they deserve to be acquitted.
6. Accordingly the revision petition is allowed. The conviction and sentences of the present petitioners are quashed and set aside and they are acquitted of the offence under section 4/9 of the Opium Act. They are already on bail so they need not surrender to their bail bonds. Their bail bonds are discharged.