JUDGMENT : Appellant has filed this appeal against the judgment dated 20-5-1996 passed by Additional Sessions Judge, Panna in Special Case No. 33/1995 convicting him under Section 8 read with Section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentencing him to rigorous imprisonment for 1 year with fine of Rs. 2000/- In default of payment of fine further rigorous imprisonment for 3 months. 2. According to prosecution, on 11-4-1995, Station Officer of Police Station, Dharampur received information from an informer that appellant had grown cannabis plants in his field. After recording the said information, Sub Inspector K.P. Mishra (P.W.9) along with other constables reached at the field of appellant situated in Village Banki and found that midst of other plants of tomato, pumpkin and other vegetables three small plants of cannabis were growing. After arranging for the security of the above plants, the message of the above fact was communicated to other officers through wireless. On 12-4-1995, in presence of Head Master of the school namely C.P. Yadav (P.W.5), Panchnama (Exh. P-2) was prepared. On the same day at about 12.15 p.m. the aforesaid three green plants of cannabis were seized and sealed. Appellant was arrested. The aforesaid plants were sent for examination to Forensic Science Laboratory. The report of Forensic Science Laboratory (Exh. P-19) was received whereby it was confirmed that the seized plants were of cannabis. During investigation, Khasra Panchshala of the year 1994-95 was obtained from Ram Sajiwan, Patwari (P.W.7). Dehati Nalishi (Exh. P-13) was recorded at the spot, on the basis of which First Information Report (Exh. P-14) was registered at the police station. After requisite investigation, charge-sheet was filed and the case was put up for trial before the Court of Special Judge. 3. Defence of the appellant was that of false implication. According to appellant, the said land did not belong to him and he was not in possession of the field. He did not know about the growing of cannabis plants. 4. During trial, prosecution examined nine witnesses and exhibited documents (Exh. P-1 to Exh. P-19). Relying on the prosecution evidence, learned Special Judge held the appellant guilty of the charge under Section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act and sentenced the appellant as mentioned earlier. 5. 4. During trial, prosecution examined nine witnesses and exhibited documents (Exh. P-1 to Exh. P-19). Relying on the prosecution evidence, learned Special Judge held the appellant guilty of the charge under Section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act and sentenced the appellant as mentioned earlier. 5. Learned Counsel for the appellant submitted that it was not established by the evidence adduced in the case that the land on which cannabis plants were growing belonged to appellant or that he was in possession of the said land. The evidence of Patwari (P.W. 7) that appellant was in possession of the land was not reliable in view of the fact that he stated that the field belonged to one Rameshwar. Learned Counsel further submitted that in a big field if 2-3 plants of cannabis were found growing, it cannot be presumed that appellant was cultivating them. On the other hand, learned Panel Lawyer submitted that from the evidence adduced by the prosecution, it was clearly established that appellant in possession of the field and that he cultivated cannabis plants. 6. I have heard the learned Counsel for the parties and perused the evidence and material on record. 7. Ramnarayan Singh (P.W.1), 'a witness of seizure who had taken photographs of the plants, did not support the prosecution case. According to him, he saw 3-4 plants but the said plants were not seized by the police before him. He had merely taken photographs. Other witnesses of seizure namely Ladku (P.W.2), Ramkishore (P.W.3), Bhaiyalal (P.W.4) and Santkumar (P.W.6) also did not support the prosecution case about the seizure of cannabis plants from the said field. C.P. Yadav (P.W.5), Head Master of Higher Secondary School, however, deposed that police called him from his house and seized three plants before him which smelt like cannabis. He stated that though appellant was sitting there and the police force was present there beforehand, but he did not ask him as to why he was sitting there or the bagiya from which the plants were seized belonged to whom. Thus, this witness though stated about the seizure of plants from the bagiya but he did not say that the said bagiya belonged to appellant. In cross-examination, he stated that when he reached there, 2-3 other persons were also sitting at the bagiya. He did not know where the appellant resided. Thus, this witness though stated about the seizure of plants from the bagiya but he did not say that the said bagiya belonged to appellant. In cross-examination, he stated that when he reached there, 2-3 other persons were also sitting at the bagiya. He did not know where the appellant resided. Some other vegetables plants were also growing there. 8. Ramsajiwan Singh, Patwari (P.W.7) deposed that on 18-4-1995 on the requisition by Inspector Mishra he drew a map of the field. That was the field of Rameshwar. He drew the spot map (Exh. P-10). He deposed that the said field was recorded in the name of Rameshwar but it was in possession of appellant Chhote. In cross-examination, he, however, admitted that though the name of person in possession of the land is recorded in Col. 12 of Khasra but he had not recorded the said fact in Khasra. He had no record that appellant was in possession of the said field Khasra No. 60/3. He further admitted that he even did not note the possession of appellant in his diary. He stated that the attesting witnesses of panchnama told to him that the said field was in possession of appellant. 9. Investigating Officer,-K.P. Mishra (P.W.9) deposed that when he went to inspect the bagiya he found three green plants of cannabis growing amongst the plants of tomato and other vegetables. On 11-4-1995, he sent a wireless message to gazetted officers but they did not come, therefore, on the next day, i.e., on 12-4-1995 he drew Panchnama in presence of Head Master C.P. Yadav and other persons and seized plants of cannabis vide seizure memo (Exh. P-3). He admitted that on 12-4-1995, when Head Master reached at the spot, he called the appellant. He did not know whether there was hedge around the bagiya. Except the head master no other officer was present when the plants were seized. 10. On appraisal of the evidence of aforesaid witnesses, it transpires that there is no cogent and convincing evidence that appellant was in possession of the land in which cannabis plants were found growing. None of the independent witnesses said that the filed in which the plants were detected belonged to appellant or was in his possession. Even Head Master C.P. Yadav (P.W.5) did not say that he knew that the said bagiya was in possession of the appellant. None of the independent witnesses said that the filed in which the plants were detected belonged to appellant or was in his possession. Even Head Master C.P. Yadav (P.W.5) did not say that he knew that the said bagiya was in possession of the appellant. According to him, when he reached the field on being called by the police officer, appellant was also called. Patwari (P.W.7) stated that the said field was recorded in the name of Rameshwar, but it was in possession of the appellant. He, however, in cross-examination, admitted that there was nothing in the record to show that appellant was in possession of the said field. He stated merely on the basis of statements made by other witnesses. However, he did not record any such statement in the Panchnama drawn by him. In these circumstances, the evidence about the fact that the field in which the plants were found growing was in possession of appellant, does not appear trustworthy. In my opinion, it was not established beyond doubt that the field belonged to appellant or he was in possession of the field from which the cannabis plants were seized. Apart from it, it is also to be noted that if only 2-3 plants of cannabis were found growing in an open field along with other vegetable plants, it cannot be presumed and held that the said plants were being cultivated. For holding a person cultivator of plants, it has to be established that he deliberately developed and maintained the plants by cultivation using agricultural techniques or he prepared the land or soil for growing such crops. In the absence of such evidence, it cannot be held that cannabis plants were being cultivated. Mere growing of stray cannabis plants in the field midst of number of other plants will not amount to cultivation of the said plants. 11. In the aforesaid circumstances, I am of the view that the prosecution has failed to prove beyond doubt that the appellant cultivated cannabis plants in the field. The Court below did not appreciate the evidence in correct perspective and erred in holding the appellant guilty of the offence under Section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act. The Court below did not appreciate the evidence in correct perspective and erred in holding the appellant guilty of the offence under Section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act. It is also to be noted that the Court below framed incorrect charge, as for cultivating cannabis plants the correct provision is Section 8 read with Section 20 (a) (i). 12. Accordingly, impugned judgment of conviction and sentence of appellant is set aside. He is acquitted. His bail bond and surety bond stands discharged. 13. Appeal allowed.