JUDGMENT : 1. This appeal is preferred by accused Nos.1 and 3 in Special Case No.115/2014, on the file of the Court of the Principal District and Sessions Judge, Ramanagara, wherein the learned Sessions Judge by Judgment and Order dated 25.02.2019 convicted them for the contravention of Section 8(c) punishable under Sections 20(a)(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 [hereinafter referred to as ‘NDPS’ Act for short]. 2. I have heard the learned counsel appearing for the appellants and the learned HCGP appearing for the respondent/State. 3. The case of the prosecution is that; On 15.07.2014 at 3.00 p.m., accused Nos. 1 to 3 were found to have cultivated ganja plants in the backyard of their houses situated in Ainoradoddi village, Maralawadi Hobli, Kanakapura Taluk, without licence or permit and thereby committed the charged offences. In order to establish its case, the prosecution got examined P.Ws.1 to 8 and got marked Exs.P1 to 42 and M.Os.1 to 14. Accused Nos.1 and 3/appellants denied all the incriminating evidence appeared against them while they were examined under Section 313 of Cr.P.C. However, they did not choose to lead any evidence on their behalf. Insofar as accused No.2 is concerned, the case against him was abated as he was reported to be dead. The learned trial Judge after appreciating the evidence and material on record, proceeded to convict accused Nos.1 and 3/appellants and sentenced them to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1 lakh each and in default of payment of fine, to undergo further rigorous imprisonment for a period of 3 years. 4. At the outset, the learned counsel appearing for the appellants has contended that charge was framed against the accused for the offences punishable under Sections 20(a)(b) of the NDPS Act. However, the learned trial Judge has proceeded to convict accused Nos.1 and 3 for the contravention of Section 8(b) and the offences punishable under Sections 20(a) and (b) of the NDPS Act and further, while passing sentence held that accused Nos.1 and 3 have been found guilty for contravention of the offence punishable under Section 8(c) of the NDPS Act and for committing offences punishable under Sections 20(a)(b)(ii)(c) of the NDPS Act. He submits that the Trial Court has not at all applied its judicial mind while appreciating the evidence and material on record, and proceeded to convict and pass sentence against accused Nos.1 and 3 for the offences, which are not charged against them. 5. Learned counsel for the appellants has further contended that the entire case of the prosecution that accused Nos.1 and 3 have grown ganja plants in the backyard of their houses is without any basis in as much as the prosecution has utterly failed to establish that the land from where the ganja plants are alleged to have been seized belong to accused Nos.1 and 3. He submits that the prosecution has not placed any material to show that accused Nos.1 and 3 were in possession of the land in question or they have grown ganja plants in the said land. He submits that the Tahsildar, who is said to have issued a report as per Ex.P41 has not been examined and there are no documents such as RTC produced to establish that the appellants are either the owner or they are in possession of the land in question. He submits that independent panchwitnesses have not supported the case of prosecution and therefore, it cannot be said that the prosecution has established its case against the appellants beyond all reasonable doubt. Accordingly, he seeks to allow the appeal. 6. Per contra, the learned HCGP has contended that the evidence and material on record clearly establishes that a raid was conducted on 15.07.2014 at about 3.00 p.m. in the backyard of the houses belonging to the accused. He submits that mahazarEx.P1 was drawn in the presence of panchwitnesses under which 42 ganja plants were seized. Samples were taken from the seized ganja plants and they were sent for chemical examination. As per the chemical examiner’s report marked as Ex.P40, samples which were sent for chemical examination have responded positive for cannabis [ganja]. He submits that the material witnesses have supported the prosecution case and from their evidence, it can be safely held that accused Nos.1 and 3 have grown ganja plants in the backyard of their houses. He submits that Ex.P41report is issued by the Tahsildar, which states that the land in question belongs to accused Nos.1 and 3. He submits that the material witnesses have supported the prosecution case and from their evidence, it can be safely held that accused Nos.1 and 3 have grown ganja plants in the backyard of their houses. He submits that Ex.P41report is issued by the Tahsildar, which states that the land in question belongs to accused Nos.1 and 3. Therefore, he submits that the prosecution has been able to establish the charged offences against accused Nos.1 and 3/appellants and accordingly, seeks to dismiss the appeal. 7. The prosecution has got examined in all 8 witnesses and got marked Exs.P1 to 42 and M.Os.1 to 14 to establish the guilt of accused Nos.1 and 3/appellants. 8. P.W.1 is the Excise SubInspector. According to him, he received a credible information that accused had grown ganja plants in the backyard of their houses in Ainoradoddi village and he informed the said fact to the Deputy Commissioner of Excise [P.W.8], who in turn directed him to inform the said fact to the Tahsildar. Thereafter, he contacted the Tahsildar and in turn he directed him to contact the Village Accountant [P.W.2]. Thereafter, the said P.W.1 contacted the Village Accountant and also informed the matter to the Excise Inspector [P.W.7] and others. He along with the other staff members went near Maralawadi, wherein C.W.8 also came and all of them went to Ainoradoddi village. They secured panchwitnesses viz., P.Ws.3 and 4 and thereafter went to the spot. 9. P.W.1 has deposed that in the backyard of the house of accused No.1, he was found to have grown 3 ganja plants, weighing about 7 kgs. The same was seized and sample was taken out of the seized ganja plants. In the backyard of the house of accused No.2, he was found to have grown 19 ganja plants, weighing about 27 kgs. which were seized and sample was taken. In the backyard of the house of accused No.3, he was found to have grown 20 ganja plants, weighing about 23 kgs. Samples were taken. He has stated that the samples were sealed and thereafter the remaining ganja plants were kept in plastic bags, which are marked as M.Os.9 to 14. The mahazar conducted at the spot is marked as Ex.P1. He has stated that photographs were taken and marked as Exs.P4 to 35. 10. P.W.2 is the Village Accountant. Samples were taken. He has stated that the samples were sealed and thereafter the remaining ganja plants were kept in plastic bags, which are marked as M.Os.9 to 14. The mahazar conducted at the spot is marked as Ex.P1. He has stated that photographs were taken and marked as Exs.P4 to 35. 10. P.W.2 is the Village Accountant. He has deposed that on 15.07.2014, at about 3.00 p.m. he went to Ainoradoddi village as per the request of the Excise Inspector and went to the spot and seized about 42 ganja plants from the backyard of the houses belonging accused Nos.1 to 3, which are situated adjacent to each other. 11. P.Ws.3 and 4 are the panchwitnesses to Ex.P1. They have not supported the case of prosecution. 12. P.W.5 is the Excise SubInspector, who has deposed that on a credible information, P.W.1, C.W.9 [P.W.7] and himself went to Maralawadi village and from there went to the spot along with the Village Accountant and panchwitnesses. He has stated that the panchwitnesses showed the spot, where ganja plants were grown. Ganja plants were seized under a mahazar Ex.P1 and photographs were taken as per Exs.P4 to 35. 13. P.W.6 is the Excise Inspector. He has stated that on receiving the information by P.W.1 that ganja plants were grown in the backyard of the houses of the accused, they went to the said spot and after securing the panchwitneses, the ganja plants were seized as per Ex.P1. Samples were taken for the purpose of chemical examination and thereafter photographs were taken as per Exs.P4 to 35. 14. P.W.7 is the Excise Inspector. He has stated that P.W.1 received an information regarding cultivation of ganja in Ainoradoddi village. Hence they went to the spot after obtaining permission as per EX.P3 from the Assistant Commissioner of Excise. They found that the accused had grown ganja plants in the backyard of their houses. After seizing the ganja plants, prepared the FIR at Ex.P2 and sent it to the Court. Information was sought from the concerned Grama Panchayat regarding the ownership of the house and requested the Tahsildar to give a report after conducting a survey of the backyard of the houses. Chemical examination report of the sample is marked as Ex.P40. He has stated that the accused were not at the spot. They appeared before him later with anticipatory bail order. 15. Chemical examination report of the sample is marked as Ex.P40. He has stated that the accused were not at the spot. They appeared before him later with anticipatory bail order. 15. P.W.8 is the Deputy Commissioner of Excise, who has deposed that on 15.07.2014, on receiving the information from P.W.1 that ganja plants have been grown in Ainoradoddi village, all of them went to the spot along with the panchwitnesses and after verifying the spot from the Village Accountant they found that the accused had grown ganja plants in the backyard of their houses and the said ganja plants were seized under a mahazar [Ex.P1]. Samples were taken and sealed. Photographs were taken as per Exs.P4 to 35. 16. Appreciation of the above evidence of the prosecution witnesses goes to show that on 15.07.2014, P.W.1 received a credible information that accused Nos.1 to 3 had grown ganja plants in the backyard of their houses situated adjacent to each other in Ainoradoddi village of Maralawadi Hobli in Kanakapura Taluk. A total number of 42 ganja plants were seized, in all weighing about 57 kgs. Samples were taken which were sent for chemical examination and according to the prosecution, as per Ex.P42 samples which were sent for chemical examination have responded positive for cannabis [ganja] and cannabis contain psychoactive constituents. 17. The question is as to whether the prosecution has been able to establish that the ganja plants which are seized were grown by accused Nos.1 and 3/appellants and as to whether the lands from where they were seized belong to them. 18. As noted earlier, P.W.1 received a credible information that the accused had grown ganja in the backyard of their houses in Ainoradoddi village. It is pertinent to mention here that none of the witnesses have stated that they have seen the accused persons growing ganja plants from where the ganja plants were seized. Admittedly, according to the prosecution, when the raiding team went to the spot, the accused persons were not present. The prosecution witnesses have stated that all the 3 houses are adjacent to each other. It was denied by the defence that the photographs marked as Exs.P4 to 35 were taken in Ainoradoddi village. 19. P.W.2 has stated that the survey number of the village is 91/5, measuring about 4 acres 30 guntas and out of which, in 3 guntas of land, ganja plants were grown. It was denied by the defence that the photographs marked as Exs.P4 to 35 were taken in Ainoradoddi village. 19. P.W.2 has stated that the survey number of the village is 91/5, measuring about 4 acres 30 guntas and out of which, in 3 guntas of land, ganja plants were grown. According to P.W.6, on enquiry, P.W.2 informed that the houses belonged to the accused persons. P.W.2 in his evidence has not stated that he was enquired by P.W.6 and he informed that the houses belong to the accused persons. As noted above, according to P.W.2, ganja plants were grown in about 3 guntas of land out of 4 acres 30 guntas in Sy. No.91/5 of Ainoradoddi village. P.W.7 has stated that he wrote a letter to the Tahsildar to give information with regard to the house numbers and survey numbers of the land in question and the Tahsildar sent a report as per Ex.P41 along with the notice, spotmahazar, sketch and mahazar conducted by the Excise Inspector. 20. I have perused Ex.P41. In the said letter, the Tahsildar, Kanakapura Taluk has mentioned that as per the report of the Revenue Inspector, Maralawadi Hobli, accused Nos.1 to 3 have grown ganja plants in 0.03 gunta land situated in Sy. No.91/5 of Theru Beedi village. As per the report of the Revenue Inspector, ganja plants were grown in Sy. No.91/5 of Theru Beedi village. Though it is stated in the mahazar that the said land was situated behind the houses of the accused persons, the prosecution has failed to produce any RTC extracts to show that the said land from where ganja plants were seized belong to them. Neither the Tahsildar nor the Revenue Inspector have been examined by the prosecution. When the charge against the accused is that they have cultivated ganja plants in the backyard of their houses situated at Ainoradoddi village of Maralawadi Hobli in Kanakapura Taluk, the report submitted by the Tahsildar stating that ganja plants were grown in Sy. No.91/5 of Theru Beedi village goes contrary to the prosecution case. The charge framed against the accused does not say that the accused have grown ganja plants in about 3 guntas of land of Sy. No.91/5 of Theru Beedi village. The independent panchwitneses in whose presence the ganja plants were seized under Ex.P1 have not supported the case of the prosecution. The charge framed against the accused does not say that the accused have grown ganja plants in about 3 guntas of land of Sy. No.91/5 of Theru Beedi village. The independent panchwitneses in whose presence the ganja plants were seized under Ex.P1 have not supported the case of the prosecution. The Tahsildar and the Revenue Inspector, who have given the reports are also not examined by the prosecution. Hence, it cannot be said that the prosecution has established its case against the accused/appellants beyond all reasonable doubt. 21. The trial Court on the basis of the evidence of the witnesses who have supported by the prosecution case and observing that there is a legal presumption in favour of the accused under Section 54 of the NDPS Act and further observing that there is no suggestion to any of the witnesses that 3 guntas of land in question identified by the Revenue Inspector after survey, was not owned by the accused and they were not in possession of the same has proceeded to convict accused Nos.1 and 3/appellants. The learned Sessions Judge has failed to see that neither the ownership of the land nor that the accused who in possession of the land in question has not been proved by the prosecution. There is no cogent evidence to hold that it is the accused/appellants who have grown ganja in the land in question. 22. From the evidence and material adduced by the prosecution, it cannot be held that the prosecution has established its case against accused Nos.1 and 3/appellants by placing sufficient material. The prosecution has failed to establish the initial burden which is otherwise required to be established. Hence, for the foregoing reasons, the Judgment and Order of conviction and sentence passed by the trial Court is not sustainable in law. Accordingly, I pass the following: ORDER The appeal is allowed. The Judgment and Order of conviction and sentence dated 25.02.2019/27.02.2019 passed in Special Case No.115/2014, on the file of the Court of the Principal District and Sessions Judge, Ramanagara is hereby set aside. Accused Nos.1 and 3/appellants are acquitted. Their bail bonds are cancelled.