The prosecution must prove the cultivation of cannabis plants by the accused beyond reasonable doubt, and the admissibility of confessional statements and the presumption of culpable mental state under Section 35 of the NDPS Act.

The Order of the Court is as follows :-

The first two appeals were filed against the conviction of the accused 3 and 2 respectively and the third appeal was filed by the State against the acquittal of the first accused in C.C. No. 43/91 on the file of the I Additional Sessions Judge, Madurai.

2.The learned Sessions Judge while acquitting the first accused, convicted the second and third accused on a charge that in between 17-10-1989 and 20-10-1989 the NDPS officers saw cultivation of cannabis for about 31 acres in Mathikettan Parai, Thalai vetti Parai, Utthamapalayam and in Semangakuzhulipallam and destroyed them. Further charge is that the second and third accused cultivated cannabis plants in the land belonging to the first accused and on the directions of the first accused. The second and third accused were convicted by the Trial Judge for an offence under Section 8(b) read with 21(a) clause 1 of the NDPS Act and each of them was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 10, 000/- each in default to undergo rigorous imprisonment for one year. Hence the appeals.

3.The facts that are necessary to decide the appeals are as follows :

P.W. 1 the Superintendent of Police under NDPS Act, Madurai went on raid on 17-10-1989 with hundred coolie for destroying the cannabis plants in the above said villages at the altitude of 5000 feet and on 19-10-1989 when they reached Semangakuzhulipallam they found ganja plantations for about 5 acres and they also found certain persons sitting in a hut and when they approached, except the second and third accused, others escaped. Then he destroyed the cannabis plants, prepared seizure mahazar Exs. P1 and P2 and observation mahazars Ex. P6 and then obtained statements from the second and third accused. The original statements being in Malayalam, Ex. P3 and P7 are respective translations of Ex. P9 and P8. After arresting the second and third accused, P.W. 1 ascertained from them that the first accused was the owner of the land in which the cannabis plants were cultivated. On 21-10-1989 he arrested the first accused also and sent all the accused for remand. After completing investigation, he laid the complaint against the accused.

4.After the evidence of prosecution was over, the accused were examined under Section 313 Cr.P.C. to explain the incriminatory circumstances appearing in the evidence against them. They denied the commission of the offence and pleaded innocence.

5.It is in the evidence of P.W. 1 that he along with P.W. 2, the Superintendent of Police, Customs and Excise Intelligence and P.W. 3, an independent witness along with 100 others went to the scene of crime, destroyed the cannabis and arrested the second and third accused who were found in the hut where Explosive substances were also available and they obtained statements implicating them in the commission of the offence. On facts, there is no hesitation to believe the evidence of P.Ws 1 to 3 that they went and destroyed the cannabis plants and also arrested the second and third accused and obtained statements from them. The English translation of those statements being marked as Exs P8 and P9.

6.The main point that required for consideration is as to whether the prosecution has fulfilled its obligation in establishing the commission of offence against the accused beyond reasonable doubt. Both the appellants who are second and third accused before the Trial Court stand charged for an offence under Section 8(b) road with 20(a) clause (1) of NDPS act, the latter provision is only a penal provision and the main provision contravention of which is punishable, is Section 8(b) of the NDPS Act. The said section says that "no person shall cultivate the opium poppy or any cannabis plant". In so far as the fact that cannabis plants were found at the site is concerned, there is no dispute. The only dispute is with regard to the essential ingredient of cultivation. When the provisions of law demand pr