JUDGMENT : V. SRISHANANDA, J. Heard Sri Chetan Kalburgi, learned counsel for the appellant and Sri Veeranagouda Malipatil, learned High Court Government Pleader for the respondent – State. 2. Accused, who suffered an order of conviction in Special Case No.4/2016, on the file of Principal Sessions Judge and Special Judge, Kalaburagi, for the offence punishable under Section 20 (a)(i) of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’), is the appellant. The appellant has been sentenced to undergo rigorous imprisonment for a period of 4 years and to pay fine of Rs.10,000/- and in default of payment of fine, he is directed to undergo further imprisonment for a period of six months. 3. Case of the prosecution as is revealed from the charge sheet materials is that: 3.1 On 30.10.2015, the Excise Authorities on credible information, raided on the land bearing Survey No.67 of Antavaram village at about 12.00 noon. In such raid, head of the raid party in the presence of independent panchas and sub staff noticed that sugarcane, turmeric and toor crops were grown in the said land and amidst those crops, they were able to find 164 ganja plants, which are grown up to the height of 6 to 8 feet. In some of the plants, already flowers and seeds were found. 3.2 Admittedly, there was no pass or permit to grow ganja plants in the agriculture land and therefore, all the plants were cut off as they were illegally grown ganja plants and later on, they seized the cut off ganja plants and drew a panchanama. They also took few plants as samples. 4. Based on the panchanama and seized ganja plants, a case came to be registered against the accused by the Excise Police. Thereafter, the accused/appellant was arrested on 28.01.2016 and he was sent to judicial custody, wherein, he spent 203 days. 5. Trial was conducted and after due trial, accused was convicted and sentenced as above for the for the offence punishable under Section 20 (a)(i) of the NDPS Act. 6. In order to bring home the guilt of the accused, prosecution in all examined 6 witnesses as PW.1 to PW.6 and placed on record 10 documentary evidence, which were exhibited and marked as Exs.P1 to P10. Prosecution also relied on one material object, which was marked as MO.1. 7. 6. In order to bring home the guilt of the accused, prosecution in all examined 6 witnesses as PW.1 to PW.6 and placed on record 10 documentary evidence, which were exhibited and marked as Exs.P1 to P10. Prosecution also relied on one material object, which was marked as MO.1. 7. Being aggrieved by the order of conviction, the accused/appellant has preferred the present appeal on following grounds: a) That, the impugned judgment and order of conviction and sentence recorded by the learned Trial Judge is contrary to law, facts, and evidence on record. Hence the same is liable to be set aside. b) That, the reason assigned by the learned Trial Judge while passing the impugned judgment, order of conviction and sentence are erroneous and as such he has slipped into an error and passed the impugned judgment resulting in substantial miscarriage of justice to the case of appellant. c) That, PW-3 & 4 turned hostile. PW-3 Sharbasappa in cross examination by Public prosecutor denied that the land Sy.No. 67 belong to Krishnappa and he grown illegal ganja and those were seized. PW-4 Chandrashekar in his examination in chief stated that the contents of Panchnama are not known to him. In cross examination by public prosecutor he stated that, the M.O. 1 is not seized in his presence. d) That, the PW-1 CW-3 stated that M.O. 1 was weighed in police station contrary to it the PW-5 CW-6 stated that the M.O. 1 was weighed at jabbar weigh bridge at Basveshwar Circle on the Gulbarga to Tandur road. Some witness stated that crime spot Sy. No. is 67 but PW-5 CW-6 stated that crime spot Sy. No. is 37. That is number of trees in question deposed by PW-1164 trees, PW-2 stated 163 trees, PW-3 states 160 to 170 trees, PW-4 states 140 trees, PW-5 states 182 trees, all these major contradictive evidence is not considered by the Trial Court. e) That, in FIR in column No.6 Complainant stated that they were raided the spot along with Konchavaram police staff but no any police official statement is recorded. In panchnama it is stated that the Excise guard Mallikarjun was present, But prosecution was not sighted those persons as witness or recorded their statement or not examined them. The prosecution has not examined any other persons present on the spot, neighboring land owner and labors who cut the trees. In panchnama it is stated that the Excise guard Mallikarjun was present, But prosecution was not sighted those persons as witness or recorded their statement or not examined them. The prosecution has not examined any other persons present on the spot, neighboring land owner and labors who cut the trees. This major lacuna of the prosecution case was not considered by the Trial Court. f) That, PW-1 CW-3 stated that labors were belonging to pedda village. Whereas in panchnama it is stated that those persons were belonging to Antawram village. g) That, PW-2 CW-10 examined on 19-10-20 in morning session he was fully examination-in-chief and cross by defence. The prosecution submitted re examination as nil. So his deposition was closed. Strangely the said witness was again chief examined at 3 pm and prosecution dictated what is to be deposed by the witness before court, that matter he got note down on his hand and this fact was observed by court. He admitted that he did not disclose all family members in vanshavali. h) That, the seizer of ganja is not proved as panchas turned hostile. PW-3 CW-1 admitted that he acted in more than 20 cases as panchas. He stated that he was called by police when he was in Chittapur Tahsil office, whereas the prosecution story is that he accompanied police from Margud cross. PW-1 CW-3 admitted that, they did not enquired whether panchas were respectable persons or not and this PW-1 CW-3 did not deny the suggestion that the accused are 4 brothers and they got divided the suit land or not. So the ownership of the land in question is doubtful. i) The prosecution failed to examine all material witnesses. j) That, the PW-1 CW-3 admitted that the information was not intimidated to his higher officials in writing however the prosecution did not complied mandatory procedure and provision. k) That, the Trial Court without applying its mind and without looking into any case against the Appellant is made out, even then blindly convicted the Appellant. That, the accused defense is totally denial whereas the learned Trial Judge in para No. 25 of Judgment mentioned that, the counsel for accused contended that someone has grown ganja plants in his land without his knowledge. That, the accused defense is totally denial whereas the learned Trial Judge in para No. 25 of Judgment mentioned that, the counsel for accused contended that someone has grown ganja plants in his land without his knowledge. When there is no material against accused then the burden of proof lies and shifts on prosecution the Trial Court failed to consider the principle of criminal jurisprudence that, when there are doubtful material/two views before Court, the view favorable to accused is to be considered. l) That, the Trial Judge discarded the principle of criminal justice that, "let the thousand Criminals be acquitted but not a single innocent be convicted". The Trial Court came to conclusion on only assumption & presumption. m) That, the Learned Trial Judge convicted the Appellant on assumption and presumption without evidence and there is no evidence to show that Appellant had committed the alleged Offence U/Sec. 20(b)(i) of Narcotic Drugs and Psychotropic Substances Act, 1985 . 8. Learned counsel for the appellant reiterating the grounds urged in the appeal memorandum contended that the very same hon’ble judge has acquitted the accused who were similarly placed that of appellant in Special Case Nos.3/2016 and 5/2016 and such other connected matters but has convicted the present appellant without any proper material on record and therefore, sought for allowing the appeal. 9. He would further contend that in the case on hand, except the excise officials, there are no independent witnesses. Therefore, recording the order of conviction for the appellant has resulted in miscarriage of justice as the testimony of the prosecution witnesses are self serving and interested testimony and sought for allowing the appeal. 10. Alternatively, learned counsel for the appellant would contend that since the appellant is a first time offender and he has been convicted for the offence punishable under Section 2(a)(i) of the NDPS Act, custody period of 203 days undergone by him before the Trial Court and the custody period undergone on this appeal may be treated as period of imprisonment by enhancing the fine amount reasonably. 11. Per contra, learned High Court Government Pleader supports the impugned judgment by contending that admittedly the land belongs to the appellant and amidst the other crops, seized ganja plants were grown. 11. Per contra, learned High Court Government Pleader supports the impugned judgment by contending that admittedly the land belongs to the appellant and amidst the other crops, seized ganja plants were grown. It is not the case that one or two plants have been grown on account of cross pollination; but as many as 164 plants were seized from the agriculture land of the appellant, which were of different height and size and therefore, the animus of the appellant is established by the prosecution. The appellant failed to rebut the presumption available to the prosecution by placing defence evidence nor explaining the incriminatory circumstances and thus, sought for dismissal of the appeal. 12. He would further contend that no mercy can be shown to people like appellant as it would send a wrong message to the society and therefore, sought for dismissal of the appeal in toto. 13. Having heard the arguments of both sides, this Court perused the material on record meticulously. 14. On such perusal of the material on record, following points would arise for consideration: 1) Weather the material evidence placed on record by the prosecution would be sufficient enough to maintain the conviction of the accused/appellant for the offence punishable under Section 2(b)(i) of the NDPS Act? 2) Whether the impugned judgment is suffering from legal infirmity and perversity? 3) Whether the sentence is excessive and needs modification? 4) What order? Regarding point Nos.1 and 2: 15. In the case on hand, the oral evidence of PW.1 to PW.6 coupled with the seizure panchanama and search warrant would be sufficient enough to establish the fact that 164 ganja plants were uprooted from the agriculture land of the appellant bearing Survey No.67 of Antavaram village. Admittedly, these ganja plants were grown amidst other crops namely, toor, sugarcane and turmeric plants. 16. In other words, on first look, these plants were invisible to the common man, which shows that accused has willfully planted these ganja plants amidst the other crops so as to hide it from the general public and making use of the same, to be sold in general public for sake of gaining money. 17. 16. In other words, on first look, these plants were invisible to the common man, which shows that accused has willfully planted these ganja plants amidst the other crops so as to hide it from the general public and making use of the same, to be sold in general public for sake of gaining money. 17. Since 164 ganja plants of different height and size have been seized by the excise officials pursuant to the search warrant obtained by them from the jurisdiction Magistrate vide Ex.P1, there cannot be any doubt whatsoever in discharging the function by the exercise officials. 18. Moreover, the act of excise officials in obtaining the search warrant and visiting to the land in Survey No.67 of Antavaram village is also presumed to be officially discharged in view of Section 114 (e) of the Indian Evidence Act . 19. The contention of the appellant that the testimony of the prosecution witnesses are interested testimony is concerned, admittedly, none of the prosecution witnesses nurtured any previous enmity or animosity as against the appellant so as to falsely implicate the appellant in the case on hand. Accordingly, such an argument cannot be countenanced in law. 20. No explanation whatsoever is offered by the appellant/accused at the time of recording the accused statement nor placed any defence evidence on record as to how 164 ganja plants were grown in his agriculture land. Further, seized ganja plants were of different height and size and in some of the plants, already flowers were grown in some plants even plant had the seeds. 21. These aspects of the matter would make it clear that knowing fully well that it is illegal to grow ganja plants in the agriculture land, appellant has gone to the extent of not only growing the ganja plants but allowed it flower and firm seeds. Therefore, the offence committed by appellant/accused is traceable one under Section 2(a)(i) of the NDPS Act. Therefore, this Court does not find any legal infirmity or perversity in recording the order of conviction against the appellant for the aforesaid offence. 22. Hence, even after re-appreciation of the material evidence on record, this Court does not find any grounds whatsoever, muchless, good grounds to interfere with the well reasoned order of conviction of the accused for the aforesaid offence. 23. 22. Hence, even after re-appreciation of the material evidence on record, this Court does not find any grounds whatsoever, muchless, good grounds to interfere with the well reasoned order of conviction of the accused for the aforesaid offence. 23. In view of the foregoing discussion, point No.1 is answered in the affirmative and point No.2 is answered in the negative. Regarding point No.3: 24. In the case on hand, accused was in custody before the Trial Court for a period of 203 days and he also undergone some period custody before suspension of sentence order came to be passed by this Court on 24.02.2021. Admittedly, one or two days is required for furnishing the surety to get the release order. Since impugned judgment came to be passed on 27.01.2021, approximately one month time would have been spent by the appellant/accused in the custody post conviction. 25. Taking note of these aspects of the matter and also accused being the first time of offender, this Court is of the considered opinion that the custody period already undergone by the appellant if treated as period of imprisonment by enhancing the fine amount in a sum of Rs.1,00,000, ends of justice would be met. Accordingly, point No.3 is answered partly in the affirmative. Regarding point No.4: 26. In view of finding of this Court on point Nos.1 to 3 as above, following order is passed: ORDER a) Appeal is allowed in part. b) While maintaining the conviction of the appellant for the offence punishable under Section 20 (a)(i) of NDPS Act, the custody period already undergone by the applicant is treated as period of imprisonment by enhancing the fine amount in a sum of Rs.1,00,000/- payable on or before 20.07.2025. c) Failure to pay the enhanced fine amount on or before 20.07.2025, sentence of imprisonment ordered by the learned Trial Magistrate stands restored automatically. d) Office is directed to return the Trial Court records with copy of this judgment for issue of modified conviction warrant.