JUDGMENT 1. This appeal is directed against the judgment dated 31.8.95 delivered by Special Judge, Balaghat in Special Case No. 70/94, where by the appellant has been convicted under section 20 (i) readwith section 8 of Narcotic Drugs & Psychotropic Substances Act, 1985 (henceforth 'the Act') and has been sentenced to R.1. for four years and to pay a fine of Rs. 20,000/-, in default whereof, to further undergo S.I. for one year. 2. The prosecution case, in short, is that the appellant is resident of village Limdewada, P.S. Hatta. District Balaghat. He was living there in an Abadi plot. It is alleged that on 28th February, 1994 an informer came to know during his patrol that the appellant Charanlal was growing Ganja in his Badi. This information was given by informer to the Station House Officer of P.S. Hatta, District Balaghat, A.S.I. of police, R.J. Dhurve, PW 4. Thereafter, on 28.2.94, RJ. Dhurve reached the spot and gave a notice Ex. P-2 dated 28.2.94 to the appellant under section 50 of the Act that if he so required, the search could be made before a gazetted officer or a Magistrate. It is alleged that the appellant agreed to the search to be made by R.J. Dhurve. Thereupon, R.J. Dhurve made a search of Badi belonging to the appellant and found 49 pieces of plants of Ganja in between the crops of garlic. onion and chilli. After identifying these plants, a seizure-memo, Ex. P-5 was made by the Investigating Officer before the witnesses. He also made a Panchnama, Ex. P-4. Thereafter, it was claimed that the Investigating Officer seized articles and put them in a packet and sealed them. These packets of cannabis plants were kept by the Investigating Officer in police station Hatta. During the course of investigation, the police officer also took photographs of the Badi, which are on record alongwith the negatives marked as Ex. P-9 to Ex. P-27. The Investigating Officer went back to the police station and lodged the FIR and registered the offence. He also deposited the sealed material in the police station. 3. After registering the crime, the seized material was sent to F.S.L., Sagar, alongwith the sample of the seal as per Ex. P-31. P-9 to Ex. P-27. The Investigating Officer went back to the police station and lodged the FIR and registered the offence. He also deposited the sealed material in the police station. 3. After registering the crime, the seized material was sent to F.S.L., Sagar, alongwith the sample of the seal as per Ex. P-31. It was found by F.S.L. Sagar that the packets contained the roots, shoots and flowers; and after chemical examination of these articles he confirmed that they were Ganja, a variety of cannabis plant. It is also the case of the prosecution that during the course of investigation the Investigating Officer had prepared certain maps and subsequently, PW 7, Bhaiyalal was also required to make maps which were marked as Ex. P-38 and Ex. P-39. Thereafter, the police, after completing the investigation, filed a challan in support of the prosecution case. 4. The trial Court, thereafter, framed a charge against the appellant under section 20 (a) (i) readwith section 8 of the Act for cultivating a cannabis plant. The appellant/accused denied to have committed any offence and claimed to be tried. 5. Thereafter, the trial Court recorded the evidence of the prosecution witnesses and examined the appellant/accused also under section 313 of the Code of Criminal Procedure. The appellant, in his statement, also denied commission of guilt by him and claimed that he wanted to examine defence witnesses. The appellant then examined one Keshorao Patwari in his offence for proving that the appellant was not in possession of the land wherefrom the alleged plants of cannabis were seized. 6. The trial Court, after examining the evidence on record, held that PW 1, Pancham, PW 2, Ganeshram, PW 3, Gandlu and PW 5 Khushyal did not support the case of the prosecution and they had stated that they had signed the seizure-memo and other documents filed by the prosecution as witnesses but no seizure was made before them and these documents were signed by them in village Doondaseoni. The trial Court, therefore, held that these witnesses have become hostile and they were supporting die appellant and deposed falsely before the Court. The trial Court, therefore, held that these witnesses have become hostile and they were supporting die appellant and deposed falsely before the Court. However, the trial Court found support from the testimony of PW 4, R.J. Dhurve, PW 6, Kapoorchand and PW 7, Bhaiyalal for holding that the prosecution case is proved and did not rely on the testimony of defence witness Keshorao, Patwari, DW 1, who was examined to prove that at the relevant time the property from which the cannabis plants were recovered, was not in the possession of the appellant. The trial Court also found from the evidence on record that the property which was seized and sealed by PW 4, R.J. Dhurve, was sent to F.S.L., Sagar through the Superintendent of Police, Balaghat, as per Ex. P-31 and thereupon a report was received from there to the effect that the sealed packet sent to chemical examiner by the Superintendent of Police, Balaghat, contained roots, stamp, shoots leaves and flowers full of seeds. After the examination of seized articles it was found that the said 49 plants were plants of Cannabis (Ganja). The trial Court, therefore, relying on section 54 of the Act found the case of the prosecution proved and held that cannabis was found to be cultivated alongwith other cultivation made by the appellant. Therefore, it has to be presumed unless contrary is proved that the appellant had cultivated all these plants and came to the conclusion that the appellant was guilty of offence under Sec. 20 (a) (i) readwith section 8 of the Act. Accordingly, the trial Court convicted and sentenced the appellant as already indicated above. 7. The learned counsel for the appellant argues that the appellant is not liable to be convicted because it was not proved that the appellant had actually sown the Ganja plants in his field. These Ganja plants were found to be located amidst the plant of onion, garlic and chilli in the field, belonging to the appellant. The learned counsel for the appellant drew the attention of this Court to the photographs filed by the prosecution regarding the place of offence displaying the growth of the plants in the Badi of the appellant. These Ganja plants were found to be located amidst the plant of onion, garlic and chilli in the field, belonging to the appellant. The learned counsel for the appellant drew the attention of this Court to the photographs filed by the prosecution regarding the place of offence displaying the growth of the plants in the Badi of the appellant. The learned counsel for the appellant further argued that PW 4, R.J. Dhurve did not say in his evidence that the cannabis plants were grown separately so that it could be said that they had been cultivated by the appellant and for this reason the appellant cannot be said to be guilty of offence under section 20 (a) (i) of the Act. The learned counsel for the appellant further argued that the mandatory provisions of section 42 (2) of the Act were not followed and for this reason the trial is vitiated. He relied on the decision of this Court in the case of Mukkan alias Balmukund v. State of M.P., reported in 1997 (2) MPU 244. The third argument of the learned counsel for the appellant was to the• effect that the prosecution has failed to prove at the relevant time any seizure was made and signatures of the witnesses were obtained on the spot. Fourthly, the learned counsel further alleged that there is no evidence on record given by the Investigating Officer that the sealed packet was prepared at the spot and the same was preserved by the Investigating Officer. Elaborating further, he argued that unless and until the prosecution proved, beyond reasonable doubt, that the plants were sealed at the spot after seizure and the untampered sealed material was sent for chemical examination, this Court cannot hold that the appellant was guilty of the offence for which he was charged. 8. As against the aforesaid, the learned Panel Lawyer, appearing for the State/respondent, argued that there is sufficient evidence on record for coming to the conclusion that the offence against the appellant has been proved. The learned counsel for the State argued that so far as the requirement of law that Investigating Officer should have complied with section 42 (2) of the Act is concerned, there is evidence on record to the effect that he had complied with the said provisions and the information regarding the commission of offence was sent by him in accordance with law. It may be delayed, but that section 42 of the Act has been complied with. The learned counsel for the State further argued that in view of section 54 of the Act, there is presumption under the law that the appellant had cultivated the cannabis plants in his Radi because these plants were found in the said Radi, amongst the cultivation of onion, garlic and chilli, which were also sown by the appellant in his Radi. It was for the appellant to prove that he had not sown them in his Radi. The learned counsel for the State further argued that the evidence of PW 6, Kapoorchand is to the effect that the seizure-memo was prepared on the spot. The articles seized from the appellant were sealed at the spot. They were taken to the police station, where they were kept in the Malkhana. According to this witness, the seized articles contained Ganja and it was he, who sent these articles to F.S.L., Sagar. 9. Section 20 (a) (i) of the Act, for which the appellant has been charged, reads as under :- "20. Punishment for contravention in relation to cannabis plant and cannabis -- Whoever, in contravention of any provision of this Act or any rule or order made condition of licence granted thereunder,- (a) cultivates any cannabis plant; or (b) xxx xxx xxx xxx xxx xxx, shall be punishable,- (i) where such contravention relates to ganja or the cultivation of cannabis plant, with rigorous imprisonment for a term which may extend to five years and shall also be liable to fine which may extend to fifty thousand rupees; (ii) where such contravention relates to cannabis other than ganja with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees and which may extend to two lakh rupees:" This section 20 (a) of the Act has to be read with section 8 of the Act which reads as follows :- "8. Prohibition of certain operations.— No person shall- (a) cultivate any coca plant or gather any portion of coca plant; or (b) cultivate the opium poppy or any cannabis plant; or (c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance. except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation : Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purposes shall take effect only from the date which the Central Government may, by notification in the official Gazette, specify in this behalf: Provided further that nothing in this section shall apply to the export of poppy straw for decorative purpose." Thus, it is clear that section 20 (a) of the Act prohibits cultivation of any cannabis plant in contravention of the Act or any rule or order made or condition of licence granted thereunder. The Prosecution case is that the appellant had grown ganja in contravention of the Act and he has been charged accordingly. A reading of section 8, aforesaid, reveals that it bans cultivation or production, manufacture, sale, purchase, transport, warehouse, consumption, import inter-State, export inter-State, import into India or export out of India or even tranship of cannabis plant or ganja amongst other narcotic drugs and psychotropic substances except for medical and scientific purpose. The first proviso and notification issued under it clarifies the position. The first proviso and notification issued under it clarifies the position. The notification reads as under :- "Notification No. S.O. 389 (E), dated May 30, 1989— In exercise of the powers conferred by the first proviso to section 8 of the Narcotic Drugs ad Psychotropic Substances Act, 1985 (61 of 1985), the Central Government hereby specifies the 15th May, 1989 as the date from which the prohibition against the cultivation of the cannabis plant for the production of ganja for any purpose other than medical and scientific purpose shall take effect." It would thus be clear that as per section 8 of the Act there is no absolute ban for cultivation of cannabis plant. The legislature has given a right of cultivation of ganja for medical and scientific purpose. Thus, combined reading of section 8 with section 20 of the Act reveals that even if a person cultivated cannabis plant and there be evidence on record that it was cultivated in accordance with the provisions of the Act, any rule, order or licence thereunder, there can be no conviction under section 20 (a) (i) of the Act. The question, however, would arise if there be no evidence on record either way, could the appellant be held liable to conviction or in accordance with section 54 of the Act, if the burden of proof shall lie upon the accused because section 54 of the Act requires the Court to raise a presumption against the accused person. 10. It may be profitable to compare section 54 of the Act with definition of 'may presume' and 'shall presume' as given in the Indian Evidence Act. Section 54 of the Act reads as under :- "54. 10. It may be profitable to compare section 54 of the Act with definition of 'may presume' and 'shall presume' as given in the Indian Evidence Act. Section 54 of the Act reads as under :- "54. Presumption from possession of illicit articles -- In trials under this Act, it may be proved, that the accused has committed an offence under Chapter IV in respect of,- (a) any narcotic drug or psychotropic substance; (b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated; (c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance; or (d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance, or any residue left of the materials from which any narcotic drug or psychotropic substance has been manufactured, for the possession of which he fails to account satisfactorily." Section 4 of the Indian Evidence Act defines 'may presume' and 'shall presume' as follows :- "4. "May presume"--Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it." "Shall presume" -- Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved;' It may be noticed that the use of words "may presume" in the Evidence Act gives discretion to draw a presumption regarding a fact unless and until it is disproved or in the alternative call for proof of it. The use of the word 'may' coupled with the words 'may call proof of it' shows that drawing of presumption is discretionary. However, the words• 'shall presume' in a given section of the Evidence Act requires the Court to presume a fact to be proved unless and until is disproved. The presumption aforesaid requires the party against whom the presumption is drawn to disprove the fact by leading evidence to that effect the word 'disproved' has been defined in the Evidence Act in contradistinction with the word 'proved'. The presumption aforesaid requires the party against whom the presumption is drawn to disprove the fact by leading evidence to that effect the word 'disproved' has been defined in the Evidence Act in contradistinction with the word 'proved'. A Court may hold a fact disproved when it holds that a fact does not exist or comes to the conclusion that a prudent man shall hold that it did not exist. The use of the word 'shall' coupled with the absence of any word relaxing the condition of drawing presumption mandates the Court to draw presumption unless and until it holds that fact is disproved. In section 54 of the Act although the words 'may presume' have been used but there is clear indication that drawing of the presumption is mandatory. The use of the words 'until and unless contrary is proved' is equivalent to use of word 'disproved', as used in the definition of 'shall presume' or 'may presume' in the Evidence Act. However, this section is akin to definition of 'shall presume' in the Evidence Act as there is no indication whatsoever regarding any discretion with the Court not to draw a presumpti6n as is given in the definition of 'may presume' by saying that the Court 'may call proof of it.' Therefore, it would have been more appropriate that the legislature had used word 'shall' instead of the word 'may'. However, it is well established that even when the word 'may' is used, it can be read as mandatory when there is indication that legislature wanted to give a mandate. The presumption under section 54 of the Act is statutory presumption regarding the commission of an offence mentioned in Chapter IV of the Act in respect of possession of the articles mentioned in the Clause 54 (a) to 54 (d) of the Act by the fact of possession, on the part of the accused in absence of a satisfactory account regarding the possession. If the accused accounts for the possession of the articles satisfactorily, the presumption cannot be drawn because it is a condition precedent for drawing the presumption. If the presumption is drawn then the accused must prove to the contrary or disprove the commission of the offence mentioned in Chapter IV of the Act by leading evidence. If the accused accounts for the possession of the articles satisfactorily, the presumption cannot be drawn because it is a condition precedent for drawing the presumption. If the presumption is drawn then the accused must prove to the contrary or disprove the commission of the offence mentioned in Chapter IV of the Act by leading evidence. Applying section 54 of the Act to the facts of the case it has to be presumed that the appellant would be guilty of the offence charged against him if it was proved, as per section 54 (b) of the Act, that cannabis plant was growing on the land which he had cultivated. It was for him to prove to the contrary that he had grown the cannabis plant for scientific or medical purpose. However, in absence of any evidence led on behalf of the appellant it was contended that existence of mere 49 plants would show that the purpose of cultivation was only medicinal. This contention cannot be accepted. These plants could have been grown for personal use. It is not the case of the appellant that he had obtained any licence for that purpose or that any rule or the provision of the Act permitted the appellant to grow 'cannabis' plant in small quantity without any permit. The attention of this Court was not drawn to any such provision. Therefore, this Court rejects the contention of learned counsel for the appellant. It may be the degree of proof in a criminal case may be much lighter than that is on prosecution but nevertheless it \Vas the duty of the appellant to raise sufficient doubt in the story of the prosecution, as was held by Supreme Court, on the principles of preponderance of probability, in the cases of K.M. Nanavati v. State of Maharashtra, reported in AIR 1962 SC 605 and in the case of Man Singh v. Delhi Administration, reported in AIR 1979 SC 1455 . Therefore, contention of learned counsel for the appellant that the Court below was not right in drawing presumption under section 54 of the Act, is rejected. 11. Therefore, contention of learned counsel for the appellant that the Court below was not right in drawing presumption under section 54 of the Act, is rejected. 11. However, the learned counsel for the appellant contended that the prosecution has failed to prove that the plants seized from the appellant were 'cannabis' plants, because the prosecution did not prove that the plants that were seized from the plot of the appellant, were sealed at the spot and were sent to chemical examiner in the state they were seized without tampering with those articles. The evidence of PW 4, R.J. Dhurve, S.I. has been read over by me. I do not find from his evidence any material which goes to show that soon after the seizure he sealed the plants. All that he says, in paragraph 4 of his statement, is that after lodging the FIR, Ex. P-13, 49 plants were sent to the chemical examiner at F.S.L., Sagar, as per Ex. P-31. In his examination, in paragraph 10, he says that seized material was sent to the office of Superintendent of Police, On 23.3.94. The material was sent to F.S.L., Sagar on the same day i.e. 23.3.94. Between 28.2.94 to 23.3.94 the material was kept at P.S. Hatta. The witness says that 49 plants were kept in the Malkhana and the keys of Malkhana were with one constable. There is nothing in the evidence of PW 4, R.J. Dhurve that he got the articles sealed at any time. This is the lacuna in the evidence of PW 4, R.J. Dhurve, the Investigating Officer. The benefit of this cannot be given to the prosecution. So far as other witness, PW 6, Kapoorchand is concerned, he had said that he was present when the 49 plants of cannabis were recovered and seizure-memo was prepared before him. He says that when the material was seized, a seal was put on the matter. He does not explain, how, why and in what manner the seal was put. He also tried to identify the article in the Court. However, the evidence of PW 4, R.J. Dhurve, in his cross examination, in paragraph 8, shows that the constables Ramesh and Kapoorchand were not present at the time of seizure and they did not sign any paper. Neither did he record their statement. He had not shown Kapoorchand, as a witness for the prosecution in the list. However, the evidence of PW 4, R.J. Dhurve, in his cross examination, in paragraph 8, shows that the constables Ramesh and Kapoorchand were not present at the time of seizure and they did not sign any paper. Neither did he record their statement. He had not shown Kapoorchand, as a witness for the prosecution in the list. Under such circumstances, when the Investigating Officer himself says that Kapoorchand, PW 6, was not present at the spot, it is difficult to believe that he was present when the seizure was made. In any case, the testimony of prosecution is conflicting and discrepant on this point and it cannot be relied upon for holding that at any point of time just after the seizure of 49 plants of cannabis, they were sealed by the Investigating Officer. The Investigating Officer does not say that after reaching the police station he sealed them. It is clear from the document, Ex. P-31 that a sealed packet was sent by the Superintendent of Police to F.S.L., Sagar which contained 49 plants of cannabis. After the seizure, since there is gap in information regarding making of sealed packet of 49 plants, the prosecution case becomes very doubtful regarding the fact that the very material which was seized from the appellant's Badi, was sent for chemical examination to F.S.L., Sagar. There is report of chemical examiner, Ex. P-32, on record, but the Investigating Officer, R.J. Dhurve, PW 4 could not have claimed that this report, Ex. P-32, related to the same material which he had seized from the appellant's Badi because it was not sealed immediately after seizure thereof. Consequently, there was all possibility of supplementing any other material which was not seized from the possession of the appellant. The material was not sealed before any witness who was present at the spot. Under such circumstances, the appellant is entitled to be given the benefit of doubt. 12. It is not necessary to decide other points raised in this appeal. 13. In result, in view of the aforesaid discussion, the appeal succeeds and it is allowed accordingly. The conviction and sentence awarded to the appellant by the trial Court vide impugned judgment, are hereby set aside and the appellant/accused Charanlal is acquitted. The appellant is in jail. He be set at liberty forthwith, if not wanted in any other case. 13. In result, in view of the aforesaid discussion, the appeal succeeds and it is allowed accordingly. The conviction and sentence awarded to the appellant by the trial Court vide impugned judgment, are hereby set aside and the appellant/accused Charanlal is acquitted. The appellant is in jail. He be set at liberty forthwith, if not wanted in any other case. The amount of fine, if it has already been deposited by the appellant, be refunded to him.