The judgment emphasizes the importance of proving cultivation of prohibited plants and the need for supporting evidence to establish guilt under Section 20 of the NDPS Act, 1985.

Radhe Shyam Sharma, J

1. This appeal is directed against judgment dated 11-02-2004 passed by Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth 'the Act, 1985'), Durg in Special Criminal Case No.9/2003. By the impugned judgment, accused/appellant Dhal Singh has been convicted under Section 20 (a) (b) (i) of the Act, 1985 and sentenced to undergo rigorous imprisonment for 2 years and to pay fine of Rs.5,000/-, in default of payment of fine, to further undergo simple imprisonment for 1 year.

2. Case of the prosecution, in brief, is as under:-

On 17-04-2003, Anil Sharma (PW-5) was posted as Station House Officer, Police Station Dhamdha. On that date, he visited Village Khairjhiti along with his staff members. When he reached there, he received information that the appellant had cultivated 5 Ganja plants at his Badi. He reached at the Badi of the appellant. The appellant was informed about the right under Section 50 of the Act, 1985 vide Ex. P-6 and the consent of the appellant regarding search was recorded in Ex. P-6 itself. Thereafter, Anil Sharma (PW-5) searched the Badi of the appellant and 5 Ganja plants were seized from the said Badi. Site-Panchnama was prepared vide Ex. P-8 and the plants were seized vide Ex.P-9. Identification of plants was conducted vide Ex. P-10. Dehati Nalishi was recorded on the spot vide Ex. P-15. The appellant was arrested on the same day vide Arrest Memo Ex. P-13. After the seizure, Investigating Officer Anil Sharma (PW-5) came back to the police station and registered First Information Report vide Ex. P-16. Detailed reports were sent to the Sub-Divisional Officer (Police), Berla vide Ex. P-21. Shri Vijay Sharma, Station House Officer, Shaja (PW-2) sent seized Ganja Plants for chemical examination to Forensic Science Laboratory, Raipur vide Ex.P-11. Report (Ex.P-22) was received from FSL, Raipur vide Ex. P-23. In Report (Ex.P-22), test of Ganja plants was found to be positive.

After completion of the investigation, charge sheet was filed against the appellant in the Court of Special Judge under the Act, 1985, Durg, who conducted the trial and convicted and sentenced the appellant as mentioned above.

3. Shri H. S. Ahluwalia, learned counsel for the appellant argued that the prosecution did not prove that the appellant had cultivated Ganja plants. Ganja plants were seized in open place and the field was owned by appellant's father and was given as Adhiya. Chiman and Santosh cultivated in Adhiya on behalf of appellant's father. Exclusive possession of the appellant is 10t proved and it is quite reasonable that the plants may sprout up naturally. Therefore, the appellant is entitled to be acquitted of the charge framed against him.

4. Shri San deep Yadav, learned Deputy Government Advocate for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Special Judge, Durg do not warrant any interference by this court.

5. Having heard rival contentions of the parties, I have perused the record of in Special Criminal Case No.9/2003.

6. The prosecution examined Patwari - Kishorilal Sahu (PW-1), Station House Officer - Vijay Sharma (PW-2), Roshandas (PW-3), Shyamlal (PW-4), Station House Officer - Anil Sharma (PW-5), Head Constable - Kalesh Ram Chouhan (PW-6). The appellant examined Gaindsingh (DW-1) and Girja Shankar Lodhi (DW-2) in his defence.

7. Now, I shall examine whether the appellant cultivated prohibited cannabis Ganja in his Badi?

8. Anil Sharma (PW-5) deposed that he was on village tour for patrolling duty. When he reached Village Khairjhiti, he received information that the appellant cultivated Ganja plants in his Badi. He reached the Badi of the appellant and gave him notice vide Ex. P-6 before witnesses for search by him or by a Gazetted Officer or a by Magistrate/Tahsildar. The consent of the appellant was recorded in Ex. P-6 itself. He further deposed that he found 5 numbers of Ganja plants in