JUDGMENT : 1. This appeal is filed by the accused-appellant against the order of conviction and sentence passed by the learned Special Judge (Prl. Sessions Judge), Belgaum in Special Case No. 47/2007 by order dated 25.06.2010. 2. The learned Judge by the above stated judgment imposed sentence to undergo rigorous imprisonment for a period of one year and to pay fine of Rs. 10,000/- for commission of the offence under Section 20(1)(i) read with Section 8(b) of the N.D.P.S. Act, 1985, in default, accused shall undergo rigorous imprisonment for a further period of six months. 3. The brief facts for the purpose of the appeal are on 05.07.2005, the PW-10 the PSI, Chikkodi Police Station, Chikkodi received credible information that the accused had grown ganja plants in his land bearing R.S. No. 36/4/1 of Mamadapur K.K. and that PW-10 communicated the information to his superiors and he secured panchas and also the gazzetted officers. Thereafter, the Investigating Officer and witness and Officers went to see the land of the accused where they found 9 ganja plants grown in the midst sugarcane crop. The said plants were plucked and removed from the ground. They were seized under a mahazar in the presence of panchas and said Gazetted Officer viz. PW-1. They weighed the said ganja and were found to weigh 1 kg 115 grams. Out of them sample plant weighing 300 grams was separately packed for the purpose of forensic analysis and the bulk plaints were separately packed and were sealed. Thereafter, a complaint came to be registered against the appellant-accused. 4. The accused was produced before the Special Judge on 6.7.2005 at 4.45 p.m. with remand application and he was remanded to judicial custody. The accused was granted bail on 25.07.2005. 5. The learned Sessions Judge framed charge under Section 20(a)(1) read with Section 8(b) of N.D.P.S. Act, 1985 and read over to the accused. The accused has pleaded not guilty and claims to be tried. 6. The learned Sessions Judge after holding the trial convicted the accused for the offences punishable under Section 20(a)(1) read with Section 8(b) of N.D.P.S. Act, 1985. The accused has pleaded not guilty and claims to be tried. 6. The learned Sessions Judge after holding the trial convicted the accused for the offences punishable under Section 20(a)(1) read with Section 8(b) of N.D.P.S. Act, 1985. Being aggrieved by the judgment and order of conviction the accused has filed the present appeal on the following grounds: The learned Session Judge has passed the judgment on the basis of assumption not on the basis of the evidence available on record that has led to miscarriage of justice. There is no application of judicious mind. The material witnesses PW-8 and 11 have not supported the case of the prosecution with regard to the seizure of the cannabis plant. The witnesses have not knowing even the contents of panchanama. The Trial Court committed error in believing the PW-1 a lady medical officer who is said to have visited the scene of offence along with the raiding party. As a Government Servant she has left the hospital on duty hours without mentioning anything in the movement register. Requisition given to her also not endorsed. The neighboring land owners PWs. 4 to 7 have not at all supported the case of the prosecution. They have not at all seen the MOs.1 and 2 ganja plants grown in the scene of offence. There is no material evidence on record to prove that the accused himself has grown the same. It is an admitted fact that the land in question is cultivated by the brother of the accused. The Trial Court has misconstrued this fact. The search, seizure and arrest of the accused have not been done in accordance with the provisions of NDPS Act. Therefore, entire investigation is highly illegal. The Trial court committed error in placing the reliance on the official witnesses. 7. The learned counsel for the appellant submitted that section 55 of the NDPS Act has not been followed. There is an inordinate delay in sending the sample for FSL examination. The Malkhana Register for having kept the seized property has not been maintained or produced. Only fruiting, flowering tops of the ganja plants has to be raid, instead of entire ganja plant is raid thereby an error in weighing such plants that goes to root of the case. Having regard to the jurisdiction of the court tried, these of fences based on the fact of the contraband articles seized. Only fruiting, flowering tops of the ganja plants has to be raid, instead of entire ganja plant is raid thereby an error in weighing such plants that goes to root of the case. Having regard to the jurisdiction of the court tried, these of fences based on the fact of the contraband articles seized. The Trial Court has not considered the fact that there was possibility of growth of these plants being natural. Section 45 of the NDPS Act is mandatory one. The procedure laid down has not been followed. The pancha witnesses are residents of more than 15 Kms. away from the scene of offence. They are not local witnesses. Therefore, the learned counsel relying on certain authorities and prayed to allow the appeal and set aside the impugned judgment of conviction and sentence passed against the accused. 8. Learned High Court Government Pleader submitted that PW-1 is a medical officer. There are no grounds to disbelieve her evidence. She has completely supported the case of the prosecution. Investigation has been done in her presence. The Trial Court has assigned sufficient reasons in paragraph No. 15 of the judgment. The pancha witnesses have not supported the case of prosecution is not a ground to reject the evidence of Investigating Officers. Hence he prayed to dismiss the appeal. 9. On the basis of the aforesaid arguments, the points that arise for consideration is as to: (i) Whether the prosecution had proved beyond all reasonable doubt that the accused had committed the offence punishable under Section 20(a)(i) read with Section 8(b) of NDPS Act, 1985? (ii) What order? 10. The allegation against accused is that he had grown 9 ganja plants in R.S. No. 36/4/1 of Mamdapur KK village in Chikodi Taluk. They were totally weighing about 1 kg and 115 grams. Therefore, he found to have violated under the provisions of section 8(b) of the NDPS Act punishable under section 20(a) (i) of the said Act. 11. According to PW-1 medical officer, she went along with the police to the scene of fence i.e. a land situated on the side of canal road there was a person. The police asked his name and address, he is a person who is now before the Court. When examined the land of the accused and found that there was a sugarcane crop height of 6 feet from ground level. The police asked his name and address, he is a person who is now before the Court. When examined the land of the accused and found that there was a sugarcane crop height of 6 feet from ground level. They also saw ganja plants being grown by the accused in the midst of the sugarcane crop being height of 5 to 6 feet. They were approved and sample was taken and panchanama was drawn at Ex.P.2. Photographs were taken which are at Exs.P.3 and 4. The plants are also identified as MO.1. The accused told them that his father is the owner of the land. 12. On seeing of the photographs at Exs.P.3 and 4, it is clear that PW-1 has visited the land, in which, the alleged ganja plants were said to have been grown. The other material brought out in the cross-examination that, she has not endorsed the requisition and not mentioned in the movement register etc. cannot be a ground that she has not at all visited the scene of offence. She admits that there are many lands in which the farmers have grown sugarcane crop in Mamadapur K.K. Village. But denies that there were other formers in the respective lands on that day the accused was found in his land only. The Police Sub-Inspector had not made any enquiry with the accused as to numbers of his brothers. Survey number is not known to the witness. After removing ganja plants they were weighed by the police with the help of scale. All the plants were weighed on one and the same time. Seal was affixed below her signature after she returned to the hospital. Therefore nothing more could be elicited in her evidence to disbelieve the fact that she has gone to the scene of offence, where the ganja plants were grown. That alone is not sufficient to prove the guilt of the accused. Prosecution has to establish that those ganja plants found in the land were grown by the accused and that the land belongs to him only. PW-2 is the FIR carrier. 13. As per the evidence of PW-3 sealed samples packet containing the cannabis plants were delivered to the Forensic Science Laboratory on 27.07.2005. There is no evidence as to why there was so much of delay in sending the sample to the expert for examination. 14. PWs. PW-2 is the FIR carrier. 13. As per the evidence of PW-3 sealed samples packet containing the cannabis plants were delivered to the Forensic Science Laboratory on 27.07.2005. There is no evidence as to why there was so much of delay in sending the sample to the expert for examination. 14. PWs. 4, 5, 6 and 7 are stated to be the independent witnesses of the said village. None of them have supported the case of the prosecution. They are said to be the neighboring land owners. He do not know, whether the ganja plants are grown by the accused in his land. 15. Though the investigating Officer has taken the photographs of the land in which such plants were grown. But he has not taken the photographs of the weighing the same or sampling portion of the plant writing mahazar at the spot and taking signature of the pancha at the spot. 16. PW-9 the investigating Officer had registered a crime on the complaint filed by the CW-1. He admits that the R.S. No. 36 stands in the name of the father of the accused. It is only on the statement of the accused they came to know that the accused is cultivating the land. 17. However the revenue record stands in the name of father of the accused. Merely because the accused found near the land and it belongs to his father by itself would not presumption that he himself has grown the cannabis plants in the sugarcane crop. There is no investigation by him to find out whether his father or his brother are responsible for the growth of cannabis plants. The property could be ancestral joint family property. In that case every coparcener would be a responsible for the illegal growing of cannabis plants. Merely on the say of accused the Investigating Officer cannot come to the conclusion that the accused is a person who has grown the cannabis plants. 18. To prove that the accused was in exclusive possession of the land, no material has been collected by the Investigating Officer. The contradiction appeared in the case of prosecution on account of PWs. 4 to 7 not supporting the case of the prosecution as per Exs.P.9 to 12 is confirmed in the cross-examination. 19. 18. To prove that the accused was in exclusive possession of the land, no material has been collected by the Investigating Officer. The contradiction appeared in the case of prosecution on account of PWs. 4 to 7 not supporting the case of the prosecution as per Exs.P.9 to 12 is confirmed in the cross-examination. 19. PW-10 is the Police Sub-Inspector of the concerned Police Station who received credible information on 05.07.2005 that the accused grown ganja in his land at Mamdapur KK village. Therefore, the complainant and as well as the Investigating officer have presumed that, it is the accused who has grown the ganja plants. To prove that the said land is in exclusive possession of the accused, the statement of the father of the accused in whose name the land is standing as per the revenue records has not been recorded. He further deposed that, along with PW-1 the medical officer, he went to the scene of occurrence along with panchas and others. 20. He saw nine ganja plants in the sugarcane crop. Photographs were taken at Exs.P3 and P4. Presence of accused as well as the Medical officer is found. But there is no reason as to why he has not taken photograph of sampling, weighing of ganja plants and writing of panchanama. He has further stated that MO.1 is the bulk ganja and MO.2 is the sample ganja. He took the leaves of ganja plants, stems of ganja plant as sample. That means he has not taken the fruiting or flowering of the cannabis. After completing major portion of the investigation of that search and seizure, he filed a complaint at Ex.P.5. Therefore, investigation which seriously incriminates the accused has been done by him. After finding the growth of ganja plants he should have immediately sent a written complaint to the police station should have got it registered the crime and then the investigation should have been handed over to another officer in that case that would have been a fair investigation. 21. According to him, since the matter was urgent he did not take panchas from Chikodi. His staff secured two panchas near the bus stand of Kabbur. According to him he had received information that the accused had ganja in the land at Mamdapur K.K. village, why he did not take panchas in the same village is not itself proved. 21. According to him, since the matter was urgent he did not take panchas from Chikodi. His staff secured two panchas near the bus stand of Kabbur. According to him he had received information that the accused had ganja in the land at Mamdapur K.K. village, why he did not take panchas in the same village is not itself proved. Distance between the Kabbur and Mamdapur K.K. is about 15 kilometers. From Chikodi, the Mamdapur is about 36 kilometers. If the accused was present in his filed for agricultural operations naturally in the surrounding lands, the farmers will be there to do agricultural work. How the investigating Officer and PW-1 denied that no such farmers were there. The entire land measures about 6 acres. In 2 acres of land sugarcane crop was grown. From the southern edge of the land of the accused that is at the distance of 100 feet the ganja plants were found in all there were 9 plants. All the plants were weighed together. He denies that the father of the accused was cultivating the land to prove that the accused was exclusive possession and cultivating the land evidence is placed. 22. PW-11 is the pancha witness to Ex.P.2. He has not supported the case of the prosecution. However, he admits that he stand at S. No. 5 from the left side to right side in photographs at Ex.P.3. PWs. 2 and 3 are the police constables who had complained PW-10. He has also admitted that he has not taken the record of rights of the land of the accused before going to there. 23. The Trial Court relied on Ex.P.15 the FSL report based on the analysis and it was held that the sample is smell of bhang and there were fruiting and flowering tops in the plant. The expert who had given report has not been examined. Thereby the valuable right of the accused was denied to prove as to whether the seized property was cannabis plants as defined under Section 2(4) of the NDPS Act. 24. The learned counsel for the appellant has relied on some authorities of the Hon’ble Supreme Court and as well this Court reported in Alakh Ram vs. State of U.P. (2004) 1 SCC 766 it reads as under: “We heard the appellant's Counsel and the Counsel for the respondent. 24. The learned counsel for the appellant has relied on some authorities of the Hon’ble Supreme Court and as well this Court reported in Alakh Ram vs. State of U.P. (2004) 1 SCC 766 it reads as under: “We heard the appellant's Counsel and the Counsel for the respondent. Under Section 8(b) of the NDPS Act, cultivation of opium poppy or any cannabis plant is prohibited and under Section 20 of the NDPS Act, such cultivation of cannabis plant is made punishable with imprisonment and fine. In order to prove the guilt, it must be proved that the accused had cultivated this prohibited plant. There must be supporting evidence to prove that the accused cultivated the plant and it is not enough that few plants were found in the property of the accused. It is quite reasonable to assume that sometimes the plants may sprout up, if seeds happed to be embedded in earth due to natural process. If plants are sprouted by natural growth, it cannot be said that it amounts to cultivation. In the instant case, one witness was examined to prove the nature of the offence committed by the accused. It was PW-1 who accompanied the police officers to the appellant's field. The evidence given by PW-1 is to the following effect:- “Alakh Ram is a farmer. I do not know the number of those fields. I do not know the number of that field in which Ganja were sown. I do not know as to who had cultivated the plants of Ganja. That field is irrigated and Madho also works in that field. Neither have I seen anyone planting the Ganja plants nor do I know when was it planted.” The above evidence is to be appreciated in the background of other evidence on record. Appellant Alakh Ram, his father and brothers owned 70 bighas of land. The prosecution has not produced any document to show that the property from which the ganja plants were uprooted belonged to appellant Alakh Ram exclusively. The witnesses who were examined in support of the prosecution also have not given any evidence to show that this property belongs to appellant Alakh Ram. There is no satisfactory evidence, either oral or documentary, to show that the appellant has a right over the property from which the Ganja plants were recovered. There is no evidence that the appellant cultivated these Ganja plants. There is no satisfactory evidence, either oral or documentary, to show that the appellant has a right over the property from which the Ganja plants were recovered. There is no evidence that the appellant cultivated these Ganja plants. Having regard to the extent of the property and the number of plants recovered from that property, it cannot be said that these plants had been the result of cultivation. They may have been sprouted there by natural process and the appellant or anybody who is the owner of the property must not have been diligent in destroying the plants. There is no evidence to prove that there was cultivation of Ganja plants by the appellant and the Additional Sessions Judge wrongly convicted him as the evidence adduced by the prosecution was not carefully scrutinized by the Court. The High Court committed error in confirming the conviction and sentence of the appellant. In the result, we find appellant Alakh Ram not guilty of the offence under Section 20 of the NDPS Act. His conviction and sentence is set aside and his bail bonds would stand cancelled. The appeal is allowed accordingly.” In State of Rajasthan vs. Gurmail Singh, (2005) 3 SCC 59 the Hon’ble Supreme Court held as under: “We have perused the judgment of the High Court. Apart from other reasons recorded by the High Court, we find that the link evidence adduced by the prosecution was not at all satisfactory. In the first instance, though the seized articles are said to have been kept in the malkhana on 20.05.1995, the Malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW-6 on 5.6.1995. We further find that no sample of the seal was sent along with the sample to Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. These loopholes in the prosecution case have led the High Court to acquit the respondent. We find no error in the judgment of the High Court.” 25. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. These loopholes in the prosecution case have led the High Court to acquit the respondent. We find no error in the judgment of the High Court.” 25. The leaner counsel for the appellant relied on another decision of the Hon’ble Supreme Court reported in Mohan Lal vs. State of Punjab, 2018 SCC Online SC 974 and submitted that there is no fair investigation and procedure laid down in the NDPS Act regarding storing of the seized property is not followed. There is violation of Section 55 of the NDPS Act. There is also delay in sending the seized properties for FSL examination. In the said authority, it is held as under: “The presence of a private person in a police vehicle while on patrol duty, the individual being an ill iterate, but having signed the consent memo were surely matters for investigation. Similarly, why the signature of ASI Balwinder Singh or PW-4 was not obtained on the consent memo was again a subject matter of investigation. The veracity of the sample seal handed over to ASI Balwinder Singh was likewise a matter for investigation as to whether it was the same as the seal on the case property retained in his private custody by PW-1 and that sent for chemical analysis. The mere fact that there may have been a seal cannot lead to any presumption in absence of the examination of ASI Balwinder Singh. Likewise, it was also a subject of investigation why PW-1 did not make any roznamcha entry of the seized property and the reason why he retained the case property and sample in his private custody in a rented house despite the availability of a malkhana. The delay in sending the sample for chemical analysis, in the facts and circumstances of the case was again a matter for investigation. Had the investigator been different from the complainant, the issues for consideration may have been entirely different. “55. The delay in sending the sample for chemical analysis, in the facts and circumstances of the case was again a matter for investigation. Had the investigator been different from the complainant, the issues for consideration may have been entirely different. “55. Police to take charge of articles seized and delivered - An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.” 9. A plain reading of the provision makes it manifest that it is the duty of the police officer to deposit the seized material in the police station malkhana. 10. Standing Order No. 1 of 88 issued by the Narcotics Control Bureau in Clause 1.13 reads as follows: “Mode and time limit for dispatch of sample to Laboratory. The samples should be sent either by insured post or through special messenger duly authorized for the purpose. Dispatch of samples by registered post or ordinary mail should not be resorted to. Samples must be dispatched to the Laboratory within 72 hours of seizure to avoid any legal objection.” 11. The Drug Law Enforcement - Field Officer's Hand Book issued by the Narcotics Control Bureau also provides that: “28. Were the seized goods and samples deposited in the Malkhana at the earliest opportunity after seizure, an acknowledgement receipt obtained from the Malkhana-in-Charge? 29. Were the samples sent to the designated laboratory for analysis and report within 72 hours of seizure?” 13. Unlike the general principle of criminal jurisprudence that an accused is presumed innocent unless proved guilty, the NDPS Act carries a reverse burden of proof under Sections 35 and 54. But that cannot be understood to mean that the moment an allegation is made and the F.I.R. recites compliance with statutory procedures leading to recovery, the burden of proof from the very inception of the prosecution shifts to the accused, without the prosecution having to establish or prove anything more. But that cannot be understood to mean that the moment an allegation is made and the F.I.R. recites compliance with statutory procedures leading to recovery, the burden of proof from the very inception of the prosecution shifts to the accused, without the prosecution having to establish or prove anything more. The presumption is rebuttable. Section 35(2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability. The stringent provisions of the NDPS Act, such as Section 37, the minimum sentence of ten years, absence of any provision for remission, do not dispense with the requirement of the prosecution to establish a prima-facie case beyond reasonable doubt after investigation, only after which the burden of proof shall shift to the accused. The case of the prosecution cannot be allowed to rest on a preponderance of probabilities. A fair trial to an accused, a constitutional guarantee under Article 21 of the Constitution, would be a hollow promise if the investigation in a NDPS case were not to be fair or raises serious questions about its fairness apparent on the face of the investigation. In the nature of the reverse burden of proof, the onus will lie on the prosecution to demonstrate on the face of it that the investigation was fair, judicious with no circumstances that may raise doubts about its veracity. The obligation of proof beyond reasonable doubt will take within its ambit a fair investigation, in absence of which there can be no fair trial. If the investigation itself is unfair, to require the accused to demonstrate prejudice will be fraught with danger vesting arbitrary powers in the police which may well lead to false implication also. Investigation in such a case would then become an empty formality and a farce. Such an interpretation therefore naturally has to be avoided. With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the contraband was essential so as to shift the burden on the accused. Investigation in such a case would then become an empty formality and a farce. Such an interpretation therefore naturally has to be avoided. With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the contraband was essential so as to shift the burden on the accused. The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt.” Furthermore, the sample not having been deposited in the malkhana, coupled with non-examination of the private witnesses, an adverse inference was drawn therein against the prosecution.” 26. The learned counsel for the appellant is also relied on the decision of this Court reported in K.K. Rejji vs. State by Murdeshwar Police Station, Karwar, 2010 (5) Kar. L.J. 279, this court had an occasion to explained definition of ganja provided under the Act. It is held that from the definition it is clear that: “Ganja is defined under the provision of NDPS Act as follows: “2(iii)(b) Ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated.” From this definition it is clear that ‘Ganja’ would mean only the flowering or fruiting tops excluding the leaves as also seeds. In the instant case, the prosecution has produced seizure panchanama-Ex.P.5, to show what was seized. It reads as follows: “(1)................. (2)................... From the extracted portion it is seen what the officers have seized are cannabis plants. The description of seized product shows it had stems, leaves, branches and perhaps even the fruiting parts. But the question is can the stem, leaves, branches be termed as ‘Ganja’ in view of definition referred to above. The answer is obviously in the negative, because the Act itself defines what is Ganja. Not only the raiding party but the Investigation Officer has not separated fruiting tops or flowering from the Ganja plants before weighing. What has been done is they have weighed the entire plants to record the weight as 10 kgs. Since the leaves, stem and branches were also part of the weight, (mass) there was no definite weight of actual flowering or fruiting part of the plant (defined as Ganja). What has been done is they have weighed the entire plants to record the weight as 10 kgs. Since the leaves, stem and branches were also part of the weight, (mass) there was no definite weight of actual flowering or fruiting part of the plant (defined as Ganja). Hence the evidence produced before the prosecution to sustain the charge is totally vague. If the whole plant is seized, then it will only be a cannabis plant and not ganja.” 27. Initially, the charge against the appellant/accused was for the offence punishable under Sections 20(a), 20(b) of NDPS Act, but the Trial Court found them guilty only for the of fence punishable under Section 20(b)(i) of the Act. There is no conviction for the offence under Section 20(a) of the Act. Hence, in was incumbent upon the prosecution to establish it was Ganja as defined and its weight. 28. This makes difference because the punishment prescribed by Section 20(b) of the Act depends on the quantity of the contraband seized. The Act prescribes three quantities - small quantity, lesser than commercial quantity but greater than small quantity and commercial quantity. 29. This court has to decide whether the ganja seized is a small quantity or commercial quantity sometimes it will be lesser than commercial but greater than small quantity. As per the notification at S. No. 55 small quantity is 1000 grams i.e. one kilogram and commercial quantity is 20 kilograms. In the case that was cited above, facts of the case were that whole plants were weighing 10 kilograms in two gunny bags. If the flowering or fruiting parts were removed which is defined under the Act the quantity would have been much less than the total weight of the property seized. 30. In this case also, the Investigating Officer has weighed entire plants without segregating the fruiting and flowering. If that has not been done then it would not possible to decide whether it was a small quantity or commercial quantity or lesser than the commercial quantity or more than small quantity. Consequently the very jurisdiction of the Court is affected. If the offence related to small quantity it will become punishable with rigorous imprisonment after a period of six months as provided under Section 20(b)(ii) (A) of the NDPS Act. 31. Consequently the very jurisdiction of the Court is affected. If the offence related to small quantity it will become punishable with rigorous imprisonment after a period of six months as provided under Section 20(b)(ii) (A) of the NDPS Act. 31. Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. If the quantity is more than small quantity but less than the commercial quantity it would be punishable with imprisonment for a term which may extend to ten years under Section 20(b)(ii)(B) of the Act. Thus the quantum of punishment also varies. Section 20 reads thus: “Section 20. Punishment for contravention in relation to cannabis plant and cannabis - Whoever, in contravention of any provisions of this Act or any rule or order made or condition of licence granted there under: (a) cultivates any cannabis plant. (b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable: (i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees. (ii) where such contravention relates to clause (b): (A) and involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine, which may extend to ten thousand rupees, or with both. (B) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees. (C) and involves commercial quantity, 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 but which may extend to two lakh rupees.” 32. The designated court would get jurisdiction to decide a case only if punishment prescribed is more than three years. If the punishment prescribed is up to six months, special court has no jurisdiction, the trial has to be conducted by the learned magistrate that is what held in the above said authority of the Hon’ble High Court. 33. The designated court would get jurisdiction to decide a case only if punishment prescribed is more than three years. If the punishment prescribed is up to six months, special court has no jurisdiction, the trial has to be conducted by the learned magistrate that is what held in the above said authority of the Hon’ble High Court. 33. Hence for all the above said reasons, the prosecution has miserably failed to prove the guilt of the accused beyond any reasonable doubt for the alleged offences. The conviction and sentence passed by the learned special judge is erroneous in law, facts and circumstances of the case and to the evidence on record hence the points answer in the negative. Hence this court proceeds to pass the following. ORDER: 1. The appeal filed by the appellant is allowed. 2. The judgment of conviction and sentence dated 25.06.2010 passed by the Special Judge (Principal Sessions Judge), Belgaum in Special Case No. 47/2007 is set aside. Accused is acquitted of the charges leveled against him. 3. Bail bond shall stand cancelled. 4. Fine amount if any deposited shall be refunded to the accused. 5. Office to send back the records along with a copy of the judgment of this Court to do the further needful action.