The prosecution must prove the charge against the accused beyond reasonable doubt, and the presumption of innocence cannot be displaced merely on the basis of suspicion or preponderance of probability.

The appellant is the accused in S.C No.3 of 2007 on the file of the Special Judge for NDPS Act Cases, Thodupuzha and he is challenging the conviction and sentence imposed on him for the offence under Section 20 (a)(i) of the Narcotic Drugs and Psychotropic Substances Act (in short 'NDPS Act).

2. The prosecution case is that on 08-10-1997, PW1 Circle Inspector of Narcotics Enforcement Squad, Adimali got information that ganja is cultivated in the property of the accused and for conducting raid, he proceeded to the place together with other Excise Officials and independent witnesses. PW1 and party detected 85 ganja plants in the property of the accused and after taking three plants as samples, the remaining ganja plants were destroyed. PW1 registered Ext.P6 crime and occurrence report and PW7 filed the final report, after completing the investigation.

3. When the accused appeared before the trial court and when he pleaded not guilty to the charge framed under Section 20 (a)(i) of the NDPS Act, PWs1 to 8 were examined, Exts.P1 to P16 and MO1 were marked from the side of the prosecution. From the side of the defence, DW1 was examined. Ext.X1 was also marked. After hearing both sides and considering the oral and documentary evidence on record, the learned Special Judge, as per the impugned judgment dated 21-02-2008, convicted and sentenced the accused to undergo Rigorous imprisonment for two years and to pay a fine of Rs.5,000/- and in default of payment of fine to undergo Rigorous imprisonment for six months for the offence under (a)(i) of the NDPS Act.

4. Heard Sri.P.Chandy Joseph, the learned counsel for the appellant and Sri.Vipin Narayan, the learned Public Prosecutor for the State and perused the records.

5. The point that arises for consideration in this appeal is whether the conviction and sentence imposed on the appellant/accused is legally sustainable.

6. Learned counsel for the appellant argued that the prosecution has not adduced any legally admissible evidence to prove that the accused was in possession of the property where the ganja plants are seen. It is pointed out that the alleged occurrence was on 08-10-1997 and that the evidence of PW7 Excise Circle Inspector would show that he took charge of the investigation of this case only on 20-07-2005 and PW7 also admitted that there is nothing in the file to show that any other Officer has conducted the investigation of this case prior to 20-07-2005. It is pointed out that all the independent witnesses turned hostile and none of the prosecution witness has a case that he saw the accused in the property where the ganja plants were detected by PW1 on 08-10-1997. It is pointed out that the trial court rendered a finding against the accused merely based on the evidence of PW5 Village Officer, who issued Ext.P12 possession certificate, after inspecting the property on 22-05-2006.

7. The evidence of PW1 clearly shows that the accused was not present there when he prepared Ext.P5 mahazar. PW2 Preventive Officer, who accompanied PW1 for the raid admitted in cross-examination that the accused and his property are not previously known to him and that he is not in a position to say the boundary of the property of the accused. The evidence of PW2 also shows that the accused was not there at the time of raid. PW's 3 and 4, the independent witnesses examined from the side of the prosecution turned hostile to the prosecution and deposed that they have not witnessed the Excise Officials searching the house and property of the accused.

8. PW5 Village Officer deposed that as per the direction of the Investigating Officer, he issued Ext.P12 possession certificate and prepared Ext.P13 plan after visiting the property. According to PW5, he requested the persons residing in the neighbourhood to point out the boundaries of their property and thereafter prepared Ext.P12 and Ext.P13. In cross-examination, PW5 admitted that there is no document in the Village Office regarding this property