Bombay High Court Acquits Accused, Clarifying What Constitutes 'Cultivation' Under NDPS Act

In a ruling that underscores the high evidentiary standards in narcotics prosecutions, the Aurangabad Bench of the Bombay High Court has set aside the conviction of an accused charged with cultivating cannabis plants. Justice Rajnish R. Vyas held that where agricultural land is recorded in the names of multiple co-owners, the prosecution must bring positive evidence linking the specific accused to the act of cultivation.

A Raid Based on Secret Information Leads to Conviction

The case originated from secret information received by Assistant Police Inspector Anmol Vinayak Kedar at Soygaon police station on 12 October 2022. Acting on the tip, a raiding party proceeded to Gat No. 29 at Jarandi village in Soygaon taluka, Aurangabad district. There they found living cannabis plants weighing approximately 62 kg 190 grams. The Special Court convicted Subhash Mahadu Mahajan under Section 20 (a)(i) of the Narcotic Drugs and Psychotropic Substances Act, sentencing him to five years' rigorous imprisonment and a fine of Rs 10,000.

The appellant challenged the conviction, arguing that the land was jointly held by four persons according to the 7/12 extract, and no evidence established that he alone was cultivating the portion where the plants were found.

How Both Sides Framed the Dispute

Advocate Rehan Khan, appearing for the appellant, contended that the prosecution had failed to verify ownership or cultivation rights before the raid. He highlighted multiple procedural lapses: the investigating officer never obtained the mutation entry, never visited Gat No. 28 to rule it out, and never recorded statements from other co-owners or neighbouring labourers who were present during the raid.

The State, represented by APP Ms Ghanekar, maintained that the accused had pointed out the spot during the raid and that his admission, coupled with the presence of plants near the well, was sufficient to sustain the conviction. The prosecution also argued that the accused had not specifically denied cultivation in his Section 313 statement.

The Court’s Rigorous Scrutiny of Evidence

Justice Vyas meticulously examined the testimony of all four prosecution witnesses and the documentary evidence, particularly the 7/12 extract (Exhibit 66). The extract revealed that Malobai Mahadu Mahajan, Subhash Mahadu Mahajan, Sunil Mahadu Mahajan and Dattu Raghunath Mutthe were all recorded as occupiers. The Court noted that the investigating officer had made no attempt to ascertain boundaries, verify partition, or determine which co-owner actually tilled the specific portion near the well.

The judgment repeatedly emphasised that the heart of the offence under (a)(i) lies in the act of cultivation. Mere presence on the property or a statement pointing out the plants does not equate to proof of cultivation with the requisite mental element.

Key Observations from the Judgment

Several passages capture the Court’s reasoning with precision:

> “It is neither disputed by the learned APP, nor is it clear from the record of the case as to whether it was the present appellant who was responsible for cultivating the Cannabis plants on the aforesaid part of the land. Since the aforesaid fact goes to the root of the matter, it cannot be said that the prosecution has proved the case beyond a reasonable doubt.”

The Court drew support from the Supreme Court’s decision in Alakh Ram vs. State of Uttar Pradesh (2004), quoting:

> “There is no satisfactory evidence either oral or documentary to show that the appellant has a right over the property from which the Ganja plants were recovered. There is no evidence that the appellant cultivated these Ganja plants.”

Justice Vyas also endorsed the view expressed by the Kerala High Court that cultivation requires conscious nurturing, but stressed that no such positive evidence was placed on record here.

Practical Implications of the Acquittal

By allowing the appeal and ordering the immediate release of the accused, the High Court has sent a clear message to investigating agencies. When land records show multiple owners, a mechanical raid without verifying actual cultivators will not withstand judicial scrutiny. The judgment also reaffirms that an admission made to police during a raid, without compliance with confession-recording procedures, cannot substitute for independent proof of cultivation.

The fine amount, if deposited, is to be refunded, and the pending criminal application stands disposed of. This decision is likely to influence how future NDPS cases involving agricultural land are investigated and prosecuted across Maharashtra.