JUDGMENT
L. Rath, J.
1. In this revision the petitioner challenges his conviction Under Section 47(a) of the Bihar and Orissa Excise Act and sentence to R1 of six months and fine of Rs. 500/-, in default to undergo R1 for one month more and confirmation of the conviction and reduction of the sentence to two months’ RI and fine of Rs. 500/-, in default to undergo R1 for one month more in appeal. A brief sketch of the facts are that on 10-5-1985 the SI of Excise (PW 4) while performing patrol duty along with his staff received information of the petitioner having kept contraband articles. He and his staff raided the house of the petitioner. From a room of the house 1 K.G. 150 grams of non-duty paid Bhang kept in a gunny bag and 1 KG. 200 grams of non-duty paid Bhang dust kept in a cloth bag were stored. The petitioner was present at the time of raid and seizure. He was made the person responsible for storing of the contraband articles and was prosecuted.
2. Two contentions have been advanced by Mr. Kar appearing for the petitioner, the first being that there was no evidence of the petitioner as possessing any contraband articles, and the second that the seized articles were never proved as contraband. In respect of the first question it is his submission that there was absolutely no evidence of the petitioner being the owner of the house or even of the room from which the articles were recovered and that his mere presence there at the time of seizure would not show that he was in possession of the articles. A glance at the evidence of PW 4 shows him to have made the statement that the petitioner was present in the room when they raided and conducted the search. The petitioner’s presence however would not conclusively show of his having kept the articles there. Admittedly, PW 4 also stated that he did not seize any documents regarding the ownership of the house in question. No evidence has been placed also regarding such ownership. It is also not in evidence that the petitioner was in exclusive possession of the room in question from where the seizure was made. The plea of the petitioner was one of denial. The possession contemplated under the Act so as to give way to the culpable conduct is conscious exclusive possession as was explained in 1993 (I) OLR 225 (Urmila Sahoo v. State of Orissa). It is fairly conceded by the learned Additional Government Advocate that such evidence is lacking.
3. As regards the question of chemical analysis of the seized articles to establish their identity as non-duty paid Bhang, it is the submission of the State that the SI of Excise(PW 4) was experienced enough to say as to whether the Bhang was non-duty paid. In support of the proposition 73 (1992) CLT 28 (Subodh Sethi and Anr. v. State), 64(1987) CLT 763 (Karpura Senapati v. State), 1939 (II) OLR 381 (Subodh Chandra Panda v. State of Orissa), and 1991 (II) OLR 169 (Ramsis Prasad v. State) are relied upon. In all those cases except 64 (1987) CLT 763 (supra) the articles seized were illicit or Indian-made foreign liquor or country liquor and the seizing officer stated that from experience he was able to know the character of the liquid. Some chemical tests had also been made report of which was available on record but had not been exhibited. The Court held that Song association and experience with such contraband articles could enable an official of the Excise Department to know the nature of the articles and could be relied upon to base a conviction. 84 (1987) CLT 763 (supra) was a case of non-duty paid Ganja where a similar view has been taken. On the side of the petitioner, two decisions have been cited, in 58 (1984) CLT 388 (Radheshyam Jena alias Mohapatra v. The State) which was a case of non-duty paid Ganja, it was held that without chemical analysis the seized articles could not be conclusively said to be non-duty paid Ganja. The case was followed in 1986(1) OL.R 576 (State of Orissa v. Lokanath Sahu and Anr.) by the same Hon’ble Judge then functioning as the Acting Chief Justice to take the view that non-duty paid Bhang, as in the present case, which had not been sent for chemical examination, disentitled the prosecution for securing a judgment of conviction.
4. In the present case the evidence of PW 4 shows of his admission that he had not sent the seized articles for chemical examination. His evidence also does not show his length of experience and exposure to the articles so as to be treated as an expert to vouchsafe the nature of the seized articles. Even applying the test laid down in 73 (1992) CLT 28 (supra) the evidence was not satisfactory to establish the identity of the seized materials. Hence on both counts the petitioner succeeds.
5. In the result the revision is allowed and the judgments of conviction and sentence passed against the petitioner are set aside.