The prosecution must prove beyond reasonable doubt that the accused cultivated prohibited plants, not merely that they were found on their property.

Judgment :

(Sanjay K. Agrawal, J.)

1. Assail in this criminal appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 (for short ‘CrPC’) is to the judgment and order dated14.2.2019 passed by learned Special Judge (N.D.P.S. Act), Ambikapur in Special Criminal (NDPS) Case No.26/2017, by which the sole appellant herein has been convicted for offence under Section 20(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'N.D.P.S. Act’) and sentenced thereunder to suffer rigorous imprisonment for 12 years and to pay fine of Rs.1,20,000/- and in default of payment of fine amount to suffer additional rigorous imprisonment for 04 years.

2. Case of the prosecution, in brief, is that on 2.10.2017 around 4:45 p.m. at Village Suplanga, Ganjherpara under Police Station Kamleshwarpur, the appellant was found illegally possessing 465 cannabis plants which he had kept in the badi situated behind his house. As per the prosecution case, on 2.10.2017, PW-8 S.L. Gadhewal, Sub Inspector, Police Station Kamleshwar, received a secret information from an informer that the appellant had illegally cultivated cannabis plants in the badi situated behind his house and has harvested the said cannabis plants. Acting upon the said tip off, after completing the mandatory formalities as required under the N.D.P.S. Act, the police party reached the spot and found the appellant there. After following the procedures prescribed under the N.D.P.S. Act, the police party made a search and found the appellant to be in possession of total 465 cannabis plants weighing around 40 kilogram of commercial quantity which he had harvested and kept in the badi situated behind his house and after preparing recovery panchnama, identification panchnama, weighment panchnama, sample panchnama and completing other formalities, the appellant was arrested for having committed offence under the provisions of the N.D.P.S. Act.

3. Learned Special Judge framed charge under Section 20(C) of N.D.P.S. Act against the appellant, which he denied and claimed to be tried. During trial, in order to bring home the offence, the prosecution examined as many as 10 witnesses as PW-1 to PW-10 and exhibited documents vide Exbts. P-1 to P-53C in support of its case. After closure of the prosecution evidence, statement of the appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the prosecution evidence, pleaded innocence and false implication on the ground that the cannabis plants were seized from vanbhumi. In his defence, the appellant has examined two witnesses, Mahesh Yadav as DW-1 and Bhupesh Singh as DW-2.

4. On completion of trial, learned Special Judge, upon appreciation of the oral and documentary evidence available on record, by the impugned judgment and order dated 14.2.2019, convicted the appellant for offence under Section 20(C) of N.D.P.S. Act and sentenced him thereunder as mentioned in the opening paragraph of this judgment, which led to the filing of the present appeal by the appellant calling in question the legality, validity and correctness of the impugned judgment passed by learned Special Judge.

5. Ms. Sareena Khan, learned counsel appearing for the appellant would submit that the prosecution has not been able to prove that it is the appellant who had cultivated the cannabis plants and the said cannabis plants were seized from the badi which was not owned by the appellant. She further submits that the exclusive ownership and possession of the appellant has not been proved over the said badi, as per the statement of PW-3 Sanjay Kumar Sahu, the Patwari, who has has prepared Nazri Naksha (Ex. P-25). As such, the appellant is entitled to be acquitted of the said offence and the appeal deserves to be allowed.

6. Mr. Sharad Mishra, learned State Counsel, would however support the impugned judgment and submit that the appellant was found to be illegally possessing the commercial quantity of cannabis plant