Evidence of conscious possession is essential to prove cultivation under the NDPS Act, and improper weighing procedures render prosecutions unsustainable.

ORAL ORDER :

The captioned petition is filed seeking quashing of the proceedings initiated against the petitioner in Spl.C. No.24/2024 for the offence punishable under Section 20 (a) of the NDPS Act.

2. The case of the prosecution is as under:

The complainant, who is working as a Police Sub-Inspector, received credible information that a ganja plant was being cultivated on the land in Sy.No.122/2, near the house of Rajiv K.Baphna situated in Kanakapura Taluk, Kodihalli Hobli, Rampuradodige Village. Acting upon the said information, he, along with other officials, conducted a raid on the said land. During the raid, one ganja plant measuring about 12 feet in height and weighing 6.570 kilograms was found amidst other vegetative growth. Based on this, the complainant lodged a report before respondent No.1, pursuant to which a crime was registered on 22.01.2024.

3. Upon completion of investigation, respondent No.1 filed a charge sheet naming the present petitioner as accused No.1.

4. Learned counsel for the petitioner, reiterating the grounds urged in the petition, contended that there is no material on record to establish that the petitioner had cultivated the seized ganja plant. He further submitted that the plant was not weighed in accordance with the procedure laid down by the Hon’ble Supreme Court in Kolandaiswamy vs. State of Karnataka , 2017 SCC OnLine Kar 275.

5. Per contra, the learned High Court Government Pleader submitted that the police have seized a ganja plant and the question regarding the quantity of cannabis involved is a matter to be adjudicated during trial. He further argued that a charge sheet has been filed and prima facie materials disclose that the petitioner is guilty of cultivating the ganja plant.

6. I have heard the learned counsel for the petitioner and the learned HCGP. I have also perused the material placed on record.

7. The issue regarding the correct method of weighing a seized ganja plant is no longer res integra. The same has been comprehensively dealt with by a Co- ordinate Bench of this Court in Chandrashekar vs. State of Karnataka (Crl.P.No.11138/2024) . The relevant portion of the said judgment reads thus:

"8. While it is a crime to permit cultivation of a cannabis crop in the residential premises, in the case at hand it is in the backyard amongst other weeds, general in nature. In such circumstances, considering identical issue, the Apex Court in the case of ALAKH RAM V. STATE OF U.P. , [(2004)1 SCC 766] , has held as follows:

“4. We heard the appellant's counsel and the counsel for the respondent. Under Section 8(b) of the NDPS Act, cultivation of opium poppy or any cannabis plant is prohibited and under Section 20 of the NDPS Act, such cultivation of cannabis plant is made punishable with imprisonment and fine. In order to prove the guilt, it must be proved that the accused had cultivated this prohibited plant. There must be supporting evidence to prove that the accused cultivated the plant and it is not enough that few plants were found in the property of the accused. It is quite reasonable to assume that sometimes the plants may sprout up, if seeds happen to be embedded in earth due to natural process. If plants are sprouted by natural growth, it cannot be said that it amounts to cultivation.

5. In the instant case, one witness was examined to prove the nature of the offence committed by the accused. It was PW 1 who accompanied the police officers to the appellant's field. The evidence given by PW 1 is to the following effect: “Alakh Ram is a farmer. I do not know the number of those fields. I do not know the number of that field in which ganja was sown. I do not know as to who had cultivated the plants of ganja. That field is irrigated and Madho also works in that field. Neither have I seen anyone planting the ganja plants nor do I know when was it planted.

6. The above evidence is to be appreciated in the background of other evidence on record. Appellant Alakh Ram, his father and brothers o