Ramabhadran, CJ

[1] The respondent, Buti Nath, as well as one Dasondhi, alias Lilu, were prosecuted by the Nahan Police of an offence under Section 8 (a) of the Opium Act. The learned Magistrate (Mr. K.B. Chandel, Additional District Magistrate) discharged Dasondhi, alias Lilu, for lack of evidence. A charge-sheet under Section 9(a), Opium Act, was, however, framed against Buti Nath.

By his order dated 31-3-1955, the learned Magistrate acquitted Buti Nath of the charge on the ground that the offence was not brought home to him beyond reasonable doubt. The State Government has come, up in appeal against the acquittal of Buti Nath under Section 417, Criminal Procedure Code.

[2] The prosecution story was that on 4-1-1954 at about 1 P.M. a motor garage, situated in Mohalla Rani Tal, Nahan town, was searched by a police party, consisting of Gangbir Singh, District Inspector, Daulat Ram, Sub-Inspector, and others. Buti Nath and Dasondhi, alias Lilu, were also present, in addition to two search witnesses, named Sewa Singh and Banda.

As a result of the search, 10 seers 3 chattaks of illicit opium was recovered, from beneath a stack of wheat straw, wrapped in a bag. On these premises, both Buti Nath and Dasondhi, alias Lilu, were prosecuted with the result, as already stated. Dasondhi was discharged and Buti Nath acquitted.

[3] We are not concerned with the question as to whether Dasondhi, alias Lilu, was properly discharged or otherwise, because no revision petition against the order of discharge has been filed to this court. We are only concerned with the question as to whether Buti Nath was improperly acquitted. The burden, obviously, lies on the prosecution to show that the order of acquittal was wrong.

[4] The learned Government Advocate urged that having found that the garage in question had been in the possession of Buti Nath and he used to keep jeep no. DLH 9595 therein, the Court below should have held that he (Buti Nath) was in conscious and actual possession of the opium recovered. I find, however, considerable force in the argument of the learned Additional District Magistrate that even if Buti Nath had been in possession of the garage and used to keep the jeep therein, nevertheless, the prosecution failed to establish that he was in conscious possession of the opium in question.

[5] The learned Government Advocate invited my attention to an earlier ruling of this Court, reported in Bansi Lal v. Mohi Ram, AIR 1955 Him-P 2 (A), where I had pointed out that:

"The best criterion for determining whether a transaction is or is not be nami is the source of purchase money."

His object in citing this ruling was to show that although the jeep stood registered in the name of one Hira Singh, nevertheless, the price thereof had been paid by the Buti Nath to the previous owner, Roshan Lal. My attention was also invited to the provisions of Section 109, Evidence Act, which deals with the burden of proof as to the relationship in cases of partners, landlord and tenant, principal and agent.

These citations do not help the appellant, because, as already remarked, even if we assume that the jeep really belonged to Buti Nath and he used to keep it in this garage and the same was in his possession, still it was incumbent upon the prosecution to establish that Buti Nath was in conscious possession of the opium in question. The learned Additional District Magistrate has referred to the statements of Hari Ram (P.W. 1), and Pola (P.W. 6), a sweetmeat seller and a hawker, respectively, who used to carry on their business in the vicinity of the garage in question.

In their examination-in-chief (which took place on 29-4-1954 and 21-5-1954 respectively), they stated that for the last four years, Buti Nath and Dasondhi used to keep the jeep in the garage, take it out and put it back. By the time, they were further cross-examined on 8-7-1954 however, both of them watered down their previous statements and deposed that for the last one year, they had no