The prosecution must prove the guilt of the accused beyond reasonable doubt, and the accused has the opportunity to rebut the presumption of culpable mental status. The delay in sending samples and the reliance on official witnesses' evidence must be reasonable and explained.

JUDGMENT

Hanchate Sanjeevkumar, J. - The above appeal is filed challenging the judgment of conviction and order on sentence dated 26.09.2012 passed in Special (NDPS) Case No.08/2011 by the Court of Principal Sessions Judge and the Special Judge at Bijapur.

2. The brief facts of the case are as follows ;-

PW.1 Complainant who was Deputy Superintendent of Police, Indi on receipt of credible information that on the land belonging to Rajkumar Bhairshetty of Bhatagunaki (the accused) besides lemon tree some cannabis plants were cultivated and accordingly he had requested the Tahasildar (PW-2) to come as pancha while conducting the raid and after informing to his superior officer, conducted raid along with other officials on 18.02.0211 by going over government Jeep bearing Reg.No.KA-28-414 and found that a person was watering the plaint on the land and upon seeing the jeep the said person tried to escape from the spot but he was apprehended and the said apprehended person is the accused in the present case and taken out his name with full address and the said apprehend person (the accused) had stated that he is cultivating his father's land and cultivated cannabis plants amidst of lemon trees and accordingly conducted search of the land and found that there were 145 ganja plants were cultivated and plucked them from the root itself and upon weighing the same they weighed totally 28 kilograms and among them five plants were taken as sample and the weight of the sample plants is 04 kilograms and accordingly packed and sealed separately both samples and the other plants and conducted panchanama as per Ex.P.1 in presence of panchas and other officials and thereafter came to the police station and lodged first information statement (FIS) and then FIR is registered by PW.5. Therefore, on the basis of FIS lodged as per Ex.P.2 the PW.5 had started investigation and conducted investigation and since sufficient material found against the accused, therefore, filed charge sheet against the accused for the offence punishable under Section 20(a) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity hereinafter referred to as NDPS Act).

The accused was released on bail. After filing of charge sheet the Special Court started trial on case and framed charges against accused for the offence punishable under Section 20(a) of the NDPS Act and the accused pleaded not guilty and claims to be tried. After recording his plea the Special Court had started examination of witnesses and the prosecution has totally examined six witnesses as PWs.1 to 6 and got marked documents Ex.P.1 to Ex.P.8 and got marked material objects as M.Os.1 and 2.

After completion of evidence of the prosecution, the accused examined under Section 313 of Criminal Procedure Code and the accused had simply denied the incriminating circumstances stated before him. The accused did not place any documents and also has not lead any defence evidence and the accused has totally denied the prosecution case.

The Special Court after conducting trial and hearing the arguments on both sides found that the accused had committed the offence punishable under Sections 20(a) of the NDPS Act and accordingly convicted for the offence under Section 20(a) of the NDPS Act and passed order on sentence to undergo rigorous imprisonment for one year and directed to pay fine of Rs.10,000/- with default clause further shall undergo simple imprisonment for three months, if fails to pay the fine amount.

3. Being aggrieved by the judgment of conviction and order on sentence by the Special Court above stated the accused had preferred the present appeal under Section 374(2) of Criminal Procedure Code (eventhough there is special provision to prefer appeal under Section 36B of the NDPS Act) inter alia on the grounds as stated below ;-

* The Special Court had not appreciated evidence correctly regarding search, seizure and recovery of contraband articles and had not appreciated well on record. Further t