JUDGMENT :

1. This appeal is filed challenging the judgment of conviction and sentence dated 20.12.2010 passed in Special Case No.06/2008 on the file of the District and Sessions Judge at Chamarajanagar challenging the conviction of the accused for the offence punishable under Section 20(a)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’ for short) and sentencing him for rigorous imprisonment for a period of three months and to pay a fine of Rs.2,000/-.

2. The factual matrix of the case is that on 24.12.2007 at about 7.15 a.m., P.W.5 – Police Inspector had received the credible information and based on that information along with the panchas and his staff, he raided the land bearing Survey No.421/1 of Berut Shagya Village, Kollegal Taluk and found that the accused had cultivated 15 ganja plants in the midst of chilli plants without any licence or permit. Hence, a case has been registered and thereafter investigation has been conducted and charge-sheet has been filed against the accused for the offence punishable under Sections 20(a) and 20(b) of the NDPS Act.

3. The accused appeared before the Trial Court and denied the charges leveled against him and hence the prosecution relied upon the evidence of P.Ws.1 to 7 and got marked the documents at Exs.P.1 to 11. The accused has not led any defence evidence. The sample ganja was marked as M.O.1. The Trial Judge after considering both oral and documentary evidence placed on record convicted the accused and sentenced him and hence the present appeal.

4. The main ground urged in the appeal is that P.W.5 who conducted the raid, he himself investigated the matter and filed the charge-sheet and the same is not permitted. He ought not to have conducted the investigation and filed the charge-sheet. The learned counsel appearing for the accused relies upon the judgment of this Court in the case of SHANTHAPPA AND OTHERS v. STATE BY AREHALLI POLICE STATION reported in 2001 Crl.L.J. 2822. Referring this judgment, the learned counsel would contend that P.W.5 himself registered the FIR and conducted the investigation and filed the charge-sheet. Hence, the inspector is having vested interest in proceeding and hence the same has to be set aside.

5. The learned counsel would also submit that P.Ws.1 and 2, who are the independent witnesses have not supported the case of the prosecution. With regard to the presence of the gazetted officer, the witnesses have admitted in the cross-examination that in Exs.P.4 to 7 – photographs, the gazetted officer is not found and hence it is clear that gazetted officer was not present at the spot and hence his evidence cannot be believed. The Trial Judge failed to consider this aspect.

6. P.W.3 FSL witness in the cross-examination categorically admitted that he has not separated the ganja leaves, stems, fruiting and flowering tops. Hence, it cannot be held that the same is ganja. P.Ws.5 to 7 are the official witnesses and their evidence cannot be believed. They categorically admitted that in the photographs they cannot see the crop of turmeric and only small chilli plants are found and have not complied with the provisions of Section 57 of the NDPS Act. Hence, the entire material placed before the Trial Court is not enough to convict the accused. Hence, it requires interference of this Court.

7. Per contra, the learned High Court Government Pleader appearing for the State would submit that though both P.Ws.1 and 2 have turned hostile, they have admitted their signatures available on Ex.P.1 – mahazar. The photographs Exs.P.4 to 7 clearly discloses that these panch witnesses were also present at the time of conducting the raid and seizing M.O.1. Hence, the evidence of P.Ws.1 and 2 cannot be discarded in toto though they turned hostile.

8. The learned High Court Government Pleader would also submit that the FSL report was received and P.W.3 categorically deposed that M.O.1 is ganja. P.W.4 is the gazetted officer and he categorically deposes that he a