JUDGMENT U.B. Saha, J. 1. The instant appeal is directed against the judgment and order dated 5.7.2003 passed by the learned Special Judge, West Tripura, Agartala in Case No. SPI. 41 of 1998 convicting the Appellant under Section 20(a)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short hereinafter referred to as 'NDPS Act') and sentencing him to suffer R.I. for six months and to pay a fine of Rs. 500/- in default to suffer R.I. for fifteen days. 2. Heard Mr. Somik Deb, learned Counsel appearing for the Appellant as well as Mr. D. Sarkar, learned P.P. appearing for the Respondent State. 3. The case of the prosecution based on which the Appellant was convicted is as follows: On 9.12.1998 at about 12.05 hours on receipt of an information, inter alia, that ganja plants have been cultivated in contravention of the Act in a plot of land belonged to the Appellant, one Sub-Inspector of police, namely, Sukumar Roy, accompanied with Additional S.P. (Ops) South, Officer Incharge, R.K. Pur P.S. and staff went to the spot to verify the information and after reaching to the spot, they found that some cannabis plants have been cultivated in a tilla land at Barbhuiya and the said land belonged to the Appellant. Then the said party guarded the spot and enquired about the Appellant but he was not found available in his house which was adjacent to the plot. However, the nephew of the Appellant, namely, Ajit Nandi was found and he informed that the said plot of land where the cannabis plants were found belonged to the Appellant but he could not produce any document for such cultivation of the cannabis plants. On requisition from the spot, SDO, Udaipur sent one Dy. Collector namely, Sri Suresh Das, to the spot. Thereafter, the 90 cannabis plants (ganja plants) were seized after cutting the stems at ground level and seized the said plants by preparing a seizure list in presence of the witnesses including Ajit Nandi (P.W. 5) and Sri Suresh Das (P.W. 2). Before seizure of the contraband goods, photographs were also taken and samples were collected on spot after observing formalities. 4. Before seizure of the contraband goods, photographs were also taken and samples were collected on spot after observing formalities. 4. On the basis of the written information lodged by Sri Sukumar Roy (P.W. 7), S.I of police, R.K. Pur P.S, a specific case was registered against the Appellant being R.K. Pur P.S. Case No. 290 of 1998 under Section 20 of the NDPS Act. After completion of investigation, the I.O of the case submitted charge sheet against the Appellant under Section 20(a)(i) of the NDPS Act. Accordingly, the learned Special Judge, West Tripura, Agartala framed the charge against the accused Appellant for committing offence under Section 20(a)(i) of the NDPS Act to which the Appellant pleaded not guilty and claimed to be tried. 5. In support of its case, the prosecution examined as many as seven witnesses including the official witnesses. Dr. Karunamoy Nath (P.W. 1) is a public analyst who conducted microscopic examination of the contraband, Sri Suresh Ch. Das (P.W. 2) was the DC cum Executive Magistrate in whose presence the cannabis plants were seized, Mr. Arindam Nath (P.W. 3), the then Additional SP (OPs), South Tripura, Udaipur was a seizure witness who put his signature in the seizure list, Sri Shib Sankar Dey (P.W. 4) is a photographer who took photographs of the land in which cannabis plants were cultivated and from where the cannabis plants were cut and seized, Sri Ajit Nandi (P.W. 5) was the son of the elder brother of the Appellant and a seizure witness, Sri Sribas Roy (P.W. 6) was a Tehshildar of Bagma Tehshil Kachari who produced the Khatian No. 76/1, 76/2 and 76/3 of Barbhuiya Mouja in the name of Appellant which were nal, viti, tilla and garden nature of land and Sri. Sukumar Roy (P.W. 7) is the S.I. of Police, R.K. Pur P.S. who lodged written information and investigated the case and filed the charge sheet. 6. On filing of charge sheet, the case was committed to the court of the Special Judge, West Tripura, Agartala for trial. The learned Trial Court examined the prosecution witnesses and thereafter, examined the Appellant under Section 313 Code of Criminal Procedure. The Appellant denied all the allegations of the prosecution and did not produce any evidence in his defence. 7. On filing of charge sheet, the case was committed to the court of the Special Judge, West Tripura, Agartala for trial. The learned Trial Court examined the prosecution witnesses and thereafter, examined the Appellant under Section 313 Code of Criminal Procedure. The Appellant denied all the allegations of the prosecution and did not produce any evidence in his defence. 7. On perusal of the evidence on record, the learned Special Judge found the Appellant to be guilty for committing offence under Section 20(a)(i) of the NDPS Act and accordingly convicted and sentenced him as aforementioned. Hence this appeal. 8. Mr. Somik Deb, learned Counsel for the Appellant has assailed the order of conviction mainly on the following courts, viz (1) that the prosecution has failed to establish that the land from which the alleged contraband was seized belonged to the Appellant; (2) that on mere microscopic examination of the seized contraband, it is not possible to give a positive finding that the seized contraband is cannabis plants; (3) that though the alleged cannabis plants were seized on 9.12.1998, but those contraband was sent to the public Analyst on 5.1.1999 and it is not clear under whose custody the said seized contraband remained during this period and there was possibility that the seized contraband might have been tampered with between 9.12.1998 and 5.1.1999. (4) that in the NDPS Act, the word cannabis has not been defined. According to him, cultivation of cannabis plants itself is not an offence unless the same is cultivated for the purpose of using as narcotic drug. In the instant case, the prosecution did not adduce any evidence that the seized plants were cultivated by the accused Appellant for using as a drug. More so, there is also no evidence available on record that the Appellant cultivated the cannabis plants as seized by the investigating authority. 9. Mr. Deb, has also drawn attention to the evidence of P.W. 1, the Public Analyst, to convince this Court that only a microscopic examination of the seized contraband was done, but no chemical examination of the seized contraband was made. According to him, mere microscopic examination of the seized contraband would not prove that they were cannabis plants for which chemical examination was necessary. According to him, mere microscopic examination of the seized contraband would not prove that they were cannabis plants for which chemical examination was necessary. While he was referring to the evidence of P.W. 1, he also pointed out that P.W. 1, the Public Analyst who examined the contraband goods had no expertise on chemical examination which he himself admitted. He further urges that when the cannabis plants were seized allegedly from the land of the Appellant, the Appellant was admittedly not there and he never admitted that the said plot of land belonged to him. More so, from the prosecution evidence, it is also evident that the land from where cannabis plants were seized was a reserve forest land. Therefore, unless the land belonged to the Appellant and the said cannabis plants were cultivated by the Appellant, he cannot be liable for such plantation and/or cultivation, even if the same is in contravention with the provisions of the NDPS Act. To convict an accused like the Appellant, the prosecution is to prove that the plot of land wherein cannabis plants were cultivated was either in possession of the Appellant or he was the owner of the said land and it is he who cultivated the cannabis plants. In absence of such proof, an accused like the Appellant cannot be convicted, but in the instant case, in absence of those proof, the Appellant was convicted by the learned trial Court which is required to be interfered with by this Court in the interest of justice. To show that the land from where the alleged contraband was seized is a reserve forest land, he placed reliance upon the evidence of P.W. 4 and 5 who specifically stated that the land is a forest reserve land. 10. Regarding his submission that the cannabis plants were though seized on 9.12.1998 but the same was received by the Public Analyst on 5.1.1999, he further submits that it cannot be ruled out that during this period, seized contraband goods might have been tampered with and more so, that the I.O. of the case in his evidence nowhere stated when he sent the seized cannabis plants (ganja) to the Public Analyst (P.W. 1). Mr. Deb further urges that police being the interested party in the case, there is probability that they might have tampered with the seized cannabis plants to convict the Appellant in the instant case. Mr. Deb further urges that police being the interested party in the case, there is probability that they might have tampered with the seized cannabis plants to convict the Appellant in the instant case. He finally contended that the charge framed by the learned Special Judge against the Appellant is also not specific one. In the charge, the learned Special Judge has stated that the Appellant has cultivated the cannabis (ganja) plants without permission from the State Government and Sub-Inspector of Police of the R.K. Pur P.S., (P.W. 7), seized 90 nos. of cannabis plants (live) from the jote-tilla land of the Appellant and thus, he contravened the provisions of Section 8 of the NDPS Act. But the prosecution did not adduce any evidence to prove their case so far as cultivation of the cannabis plants by the Appellant. Therefore, on the said charge, the Appellant cannot be convicted. 11. In support of his submission, Mr. Deb placed reliance on a decision of the Bombay High Court in the case of Milan Sarcanski v. State 1997 Cri.L.J 2028, particularly, he referred to Para-9 and 10. 12. Mr. D. Sarkar, learned P.P. while defending the order of conviction passed by the learned Special Judge would contend that P.W. 2, Suresh Ch. Das, the Deputy Collector at the relevant time also acted as an Executive Magistrate. Therefore, it cannot be said that he was not present there as an Executive Magistrate. He further urges that when the P.W. 4, a family member of the Appellant was present at the time of seizure and also being a witness to the seizure of the cannabis plants, it is not necessary for the prosecution to examine the other witnesses from the nearby place of the land where the cannabis plants were cultivated and the same were seized. Mr. Sarkar finally contended that for proving the land in question the prosecution examined P.W. 6, the Tahshildar of the Bagma Tahshil Kachari who produced the relevant khatian i.e. the land records relating to the land in question which were marked as Exbt. 3 series, from which it is evident that the land in question belonged to the present Appellant. Therefore, it cannot be said that the learned Special Judge i.e. the Trial Court erred in convicting the Appellant. According to the learned P.P, the conviction of the Appellant is based on land proved khatian, Exbt. 3 series. 3 series, from which it is evident that the land in question belonged to the present Appellant. Therefore, it cannot be said that the learned Special Judge i.e. the Trial Court erred in convicting the Appellant. According to the learned P.P, the conviction of the Appellant is based on land proved khatian, Exbt. 3 series. 13. This Court has gone through the records of the Trial court wherein evidence of the witnesses are available and the law reports cited by Mr. Deb. Before discussion on the submission of the learned Counsel for the parties, a duty casts upon this Court to turn to the evidences of the witnesses as recorded by the Trial Court. The cardinal witnesses in the instant case are P.W. 1, 4, 5 and 6. 14. P.W. 1 Dr. Karunamoy Nath in his deposition specifically stated that he received two packets of ganja as sample on 5.1.99 in connection with R.K. Pur P.S. Case No. 290 of 1998 under Section 20of the NDPS Act and he carried out the microscopic examination and came to the conclusion that the sample goods was ganja. It appears from the evidence that he also examined the duplicate sample and the result of the examination was same. He identified his report which was marked as Exbt. P/1. In his cross, he specifically stated that for leaf matter, two types of examination are done, one is chemical examination and Anr. is microscopic and ganja falls under leaf and stem category, but he could carry out only microscopic examination. He also stated that for examination purpose, the sample must be in good condition and sample which he examined was green, but partially rotten. 15. P.W. 2 Sri Suresh Chandra Das, DC cum Executive Magistrate deposed before the Trial Court that he went to the spot from where the cannabis plants were seized along with Additional S.P. (Ops), P.W. 3 and the I.O. of the case (P.W. 7) and in his presence, the seizure of cannabis plants was done and the photographs were taken. In his cross, he stated that he did not make any attempt to confirm whether the Appellant was the owner of the land. 16. In his cross, he stated that he did not make any attempt to confirm whether the Appellant was the owner of the land. 16. P.W. 3 Sri Arindam Nath, Additional S.P. in his deposition stated that he went to the land in question from where cannabis plants were seized and on local enquiry, he learnt that the land belonged to the Appellant. He also stated that the cousin of the Appellant, namely, Ajit Nandi was available there, but it appears from record that Ajit is not a cousin of the Appellant, he is the nephew of the Appellant. Therefore, there is a doubt even relating to the identification of P.W. 5 by P.W. 3. When an officer like P.W. 3 is not in a position to locate the relation between the P.W. 5 and the Appellant, how he would identify the owner of the land from where the cannabis plants were seized, though he identified his signature in the seizure list as he was also a seizure witness. In his cross, he started the he learnt about the owner of the land from the said Ajit Nandi (P.W. 5). 17. P.W. 4 Sri Shib Sankar Dey took the photographs of the cannabis plants who identified the photographs which were marked as Ext. M.O. 2 series. In his cross, he stated that the site falls under the Reserve forest area where there is also a graveyard and the land from where the ganja plants were cut and seized was not owned by the Appellant. 18. P.W. 5 Sri Ajit Nandi is the nephew of the Appellant who deposed that in the year 1998, he was residing at Barbhuiya and the Appellant Abani Nandi is his own uncle and their house were situated side by side and on 9.12.98, police of R.K. Pur P.S. went to the house of the Appellant and asked him who was the owner of the land wherein there were ganja plants and he told them that the said land was under Forest Reserve land. It also appears from his statement that the cannabis (ganja) plants were removed and seized in his presence and taken by the police when his uncle Appellant Abani was not found in his house. He identified his signature which is marked as Exbt. P/2/3. It also appears from his statement that the cannabis (ganja) plants were removed and seized in his presence and taken by the police when his uncle Appellant Abani was not found in his house. He identified his signature which is marked as Exbt. P/2/3. In his cross, he deposed that he put his signature in the white sheet of paper and his uncle's land is at a distance of about one furlong from the place from where the cannabis (ganja) plants were seized. 19. P.W. 6 Sri Sribas Roy, a Tahshildar of Bagma Tahshil Kachari only produced the Khatian No. 76/1, 76/2 and 76/3 of Barbhuiya Mouja as directed by the S.D.O. and on identification, those khatians were marked as Exbt. 3 series wherein the nature of land has been described. P.W. 7 Sri Sukumar Roy is the I.O. of the case, evidence of whom is not required to be reproduced as his statement mainly on investigation. 20. From the evidence of the aforesaid prosecution witnesses, it is the admitted position that the Appellant was not present at the time of seizure of the cannabis plants and the prosecution also did not adduced any evidence of any other nearby villagers except P.W. 5, the nephew of the Appellant, to prove that it is the Appellant who cultivated the cannabis plants on his own land. The prosecution also did not adduce any evidence to show that the land in Question is the land of the Appellant or it was in possession of the Appellant, from where cannabis plants were seized. Production of Khatian which was marked as Exbt. 3 series only proved that the plot No. 1076, 2908 and 2903 belonged to the Appellant and the nature of land was garden and tilla class of land, but that does not prove that the cannabis plants, which were seized, were from the aforesaid plot of land. Unless the prosecution witnesses made specific statements that the cannabis plants were seized from the land of the Appellant or from a land which was in possession of the Appellant and the Appellant cultivated the cannabis plants on the said land, it is difficult to come to a conclusion that the cannabis plants were cultivated by the Appellant in contravention with the NDPS Act, which is totally missing in the instant case. It is also an admitted position that P.W. 6 the Tahshildar who produced the aforesaid Khatians was not present while investigating agency seized the cannabis plants. 21. It is evident from the evidence of the prosecution witnesses that at the time of seizure of the cannabis plants, about 10/12 villagers were present, but none of them were produced and examined by the prosecution and non-examination of those witnesses also creates doubt on the prosecution case, even no explanation was also given for such non-production of those witnesses. 22. Further, the cannabis plants were seized from the alleged land of the Appellant on 9.12.1998 but the same was received by P.W. 1, the Public Analyst on 5.1.1999. No explanation was given for delay of sending the seized cannabis plants and it is also not explained with whom and where the aforesaid seized cannabis plants remained for the period from 9.12.1998 to 5.1.1999. Therefore, the learned Counsel for the Appellant has rightly cast a doubt that within this period, the seized cannabis plants might have been tampered with, as those were within the custody of the investigation agency. 23. It is a settled law that if the article seized had not been kept in the proper custody and proper form so that the court could be sure that what was seized only was sent to the chemical examiner, the accused would be entitled to the benefit of doubt. It is the admitted position that the sample of the seized cannabis plants was never sent for chemical examination. The Public Analyst (P.W. 1) also in his cross specifically stated that he did not carry out the chemical examination as because he has no special training in that line. Not only that, he also stated in his report that the sample which he examined was green, but partially rotten. Non-examination of the seized goods i.e. cannabis plants also creates a doubt regarding the seized articles whether the same is ganja or not, as the P.W. 1 had no expertise to determine whether the sample sent to him is actually cannabis plants or not. 24. The contention of Mr. Deb, inter alia, that the word "cannabis" is not defined in the NDPS Act has no force as both cannabis (hemp) and cannabis plants are defined in the NDPS Act. More so, the word 'ganja' has also been defined. 24. The contention of Mr. Deb, inter alia, that the word "cannabis" is not defined in the NDPS Act has no force as both cannabis (hemp) and cannabis plants are defined in the NDPS Act. More so, the word 'ganja' has also been defined. However, for better appreciation, we may look into the scientific discussion on 'cannabis' which are as follows: Cannabis is an annual, dioecious, flowering herb. The leaves are palmately compound or digitate, with serrate leaflets. The first pair of leaves usually have a single leaflet, the number gradually increasing up to a maximum of about thirteen leaflets per leaf (usually seven or nine), depending on variety and growing conditions. At the top of a flowering plant, this number again diminishes to a single leaflet per leaf. The lower leaf pairs usually occur in an opposite leaf arrangement and the upper leaf pairs in an alternate arrangement on the main stem of a mature plant. Professors William Emboden, Loran Anderson, and Harvard botanist Richard E. Schultes and coworkers also conducted tadxonomic studies of Cannabis in the 1970s, and concluded that stable morphological differences exist that support recognition of at least three species, C. sativa, C. indica, and C. ruderalis. Hemp is the natural, durable soft fiber from the stalk of Cannabis sativa plants that grow upwards of 20 feet tall. Cannabis plants used for hemp production are not valued for recreational uses as the plants that are cultivated for hemp produce minimal levels of (Tri-hydrochloride) THC, analogous to attempting to get drunk from low-alcohol beer. Cannabis plants intended for any drug cultivation cannot be hidden in a hemp field, either as the size and height of each are significantly different. Cannabis, also known as marijuana, marihuana and ganja, "ganja" is basically known as hemp", among many other names, refers to any number of preparations of the cannabis plant intended for use as a psychoactive drug. Even hemp is often used to refer only to varieties of cannabis cultivated for non-drug use. (See Wikipedia-Cannabis, page-2 to 8) Unless after seizure of the cannabis plants, it is proved that the same contravened to the provisions of NDPS Act, it would not be proper to implicate a person only mere on suspicion. Even hemp is often used to refer only to varieties of cannabis cultivated for non-drug use. (See Wikipedia-Cannabis, page-2 to 8) Unless after seizure of the cannabis plants, it is proved that the same contravened to the provisions of NDPS Act, it would not be proper to implicate a person only mere on suspicion. In the instant case, though the cannabis plants were seized, but no examination of such plants was made either by a chemical examiner or by a Botanical expert, rather the said plants were examined by the Public Analyst, (P.W. 1) who had/has no expertisation for chemical or botanical examination. 25. In para-9 of Milan Sarcanski (supra), it has been noted that the recovery of the contraband goods from the person of the accused is to be proved by the prosecution as per the procedure prescribed by law. The procedure involves examination of panch witnesses particularly for the purpose of identification of the contraband goods recovered in the course of investigation. In para-10 of the said report, it has further been noted by their Lordship of the Bombay High Court that: as pointed out earlier the witness has clearly identified the two other items which are said to be recovered from Anr. room in the same house on the same occasion. The witness having clearly identified those two items and having failed to identify the item which is alleged to have been recovered from the bag carried by the Appellant, we are left with no option than to conclude that the item which has been recovered from the bag of the accused has not been identified and, therefore, the recovery from the person of the accused has not been established by the prosecution. 26. From the discussion of the prosecution witnesses, it can be said that the prosecution has failed to prove that the plot of land wherein the cannabis plants were found and wherefrom the cannabis plants were seized was either cultivated by the Appellant or was in possession of the Appellant for which he contravened the provisions of Section 8 of the NDPS Act and thus committed an offence punishable under Section 20 of the NDPS Act. When the prosecution has failed to connect the Appellant with the alleged crime, the Appellant is obviously entitled to get the benefit of doubt. When the prosecution has failed to connect the Appellant with the alleged crime, the Appellant is obviously entitled to get the benefit of doubt. The learned Trial Court misread the evidence of the witnesses and passed the impugned judgment and order of conviction and sentence basing on such erroneous appreciation of the evidences. 27. For the foregoing reasons and discussion, this Court is of considered opinion that the impugned judgment and order of conviction cannot be sustained and the same is liable to be set aside. 28. In the result, the appeal is allowed and the judgment and order of conviction and sentence of the Appellant accused dated 5.7.2003 passed by the learned Special Judge, West Tripura in Spl. Case No. 41 of 1998 under Section 20(a)(i) of the NDPS Act is hereby set aside. The Appellant accused is on bail and his bail bond shall stand cancelled. Appeal allowed.