Karnataka High Court
Chandrashekar vs State Of Karnataka on 29 April, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF APRIL, 2025
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.11138 OF 2024
BETWEEN:
CHANDRASHEKAR
S/O JANARDHAN
AGED ABOUT 67 YEARS
RESIDING AT NO.24, 5TH CROSS
K.R.ROAD, JAYANAGAR
7TH BLOCK
BENGALURU - 560 070.
... PETITIONER
(BY SRI JAYSHAM JAYASIMHA RAO, ADV.)
AND:
STATE OF KARNATAKA
BY BANASHANKARI PS
BENGALURU
REPRESENTED BY SPP
HIGH COURT BUILDING
AMBEDKAR VEEDHI
BENGALURU - 560 001.
... RESPONDENT
(BY SRI B N JAGADEESH, ADDL. SPP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE FIR BEARING CRIME NO.
250/2023 DATED 01/09/2023 REGISTERED BY THE RESPONDENT -
2
BANASHANKARI POLICE, BENGALURU AGAINST THE PETITIONER
FOR ALLEGED OFFENCE PUNISHABLE UNDER SECTION 20(A) OF
THE NDPS ACT, 1985 AT ANN-A AND ETC.,
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS
DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner is before this Court calling in question
proceedings in Spl.C.C.No.665 of 2024 registered for offences
punishable under Sections 20(a) and 20(b)(ii)(c) of the Narcotic
Drugs and Psychotropic Substances Act, 1985 ('Act' for short).
2. Heard Sri Jaysham Jayashimha Rao, learned counsel
appearing for petitioner and Sri B N Jagadeesh, learned Additional
State Public Prosecutor appearing for the respondent.
3. Facts in brief germane are as follows:
It is the case of the prosecution that on an alleged tip off they
conduct a search in the house of the petitioner, a senior citizen on
3
01-09-2023 at about 4.30 p.m. on an allegation that the petitioner
is cultivating 5 to 6 cannabis plants in his property. The search and
seizure leads to registration of a crime initially for offence
punishable under Section 20(a) of the 'Act'. The police then
conduct investigation and file a charge sheet against the petitioner.
The concerned Court, in terms of its order dated 19-03-2024, takes
cognizance of the offences under Sections 20(a) and 20(b)(ii)(c) of
the Act and registers Spl.C.C.No.665 of 2024 and issues summons
to the petitioner. Taking of cognizance and issuance of summons is
what has driven the petitioner to this Court in the subject petition.
4. The learned counsel Sri Jaysham Jayashimha Rao
appearing for the petitioner would vehemently contend that offence
of cultivation would mean an intentional raising of plants.
Cultivation is not defined under the Act. The police seize 5 cannabis
plants amongst other general weed that was grown in the backyard
of the property belonging to the petitioner. There is no allegation
that he has intentionally raised those plants. At best, it could be
cross pollination, is the submission of the learned counsel. He
would further contend that there is no evidence placed on record
4
which would depict cultivation of the cannabis plant. While
weighing the plants that were taken, they are not segregated to
what would become cannabis and 5 plants, all together with roots,
stems, leaves and buds are weighed at 27.360 kgs, which according
to him, is completely contrary to law.
5. Per-contra, learned Additional State Public Prosecutor
would vehemently refute the submission to contend that the police
have seized plants and the amount of cannabis involved in the
seizure is a matter of trial. Charge sheet has been filed, prima
facie, the petitioner is guilty of cultivation. Therefore, the afore-
quoted offences. He would submit that this Court should not quash
the proceedings on the plea of the petitioner.
6. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
7. The afore-narrated dates, link in the chain of events is a
matter of record. The petitioner, a hexagenerian, is hauled into
5
these proceedings for a seemingly unknown growth of cannabis
plants in his backyard. The alleged tip off led to search and the
search led to seizure or uprooting of the alleged cannabis plants 6
in number weighting 27.360 kgs. The police after investigation file
a charge sheet. The summary of the charge sheet as obtaining in
column No.17 reads as follows:
"17. PÉù£À ¸ÀAQë¥ÀÛ ¸ÁgÁA±À
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ºÁQ vÀÆPÀ ªÀiÁqÀ¯ÁV MlÄÖ 27 PÉ.f.360 UÁæA (¨ÉÃgÀÄ, PÁAqÀ, J¯ï ºÁUÀÄ ªÉÆUÀÄÎUÀ¼ÀÄî¼Àî ºÀ¹ UÁAeÁ)
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oÁuÁ ¦.J¥sï.£ÀA.123/2023 gÀ°è £ÀªÀÄÆzÀÄ ªÀiÁqÀ¯ÁVgÀÄvÀÛzÉ.
F zÉÆõÁgÉÆÃ¥ÀuÁ ¥ÀnÖAiÀÄ PÀæ.¸ÀA.-12 gÀ°è £ÀªÀÄÆ¢¹zÀgÀĪÀ DgÉÆæAiÀÄÄ dAiÀÄ£ÀUÀgÀ 7£ÉÃ
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zÀÈqÀ¥ÀnÖgÀÄvÀÛzÉ, DzÀÝjAzÀ DgÉÆæ «gÀÄzÀÝ ªÉÄîÌaqÀ PÀ®AUÀ¼À C£ÀéAiÀÄ F zÉÆõÁgÉÆÃ¥ÀuÁ ¥ÀnÖ."
6
What was the seizure is also found in the P.F. and it reads as
follows:
"PÀæªÀÄ. ¸ÀéwÛ£À «ªÀgÀUÀ¼ÀÄ CAzÁdÄ ¨É¯É ªÀÄvÀÄÛ AiÀiÁjAzÀ ªÀÄvÀÄÛ J°è «¯ÉêÁj AiÀÄ
¸ÀASÉå. ªÀiÁ®Ä ªÀ±À¥Àr¹PÉƼÀî¯Á¬ÄvÀÄ «ªÀgÀ
Property form No. PF No.123/2023 on 01/09/2023
1 Type: Others 1,580,000.00 Behind House Seized
Property Description: 26 KG No 24. and with
860 Grams Ganja(Roots, 5th Cross, K.R. Police
Stem, Leaf & Buds) Road,
Including Plastic Bag Jayanagara
7th Block
Bengatur City
2 Type: Others 0.00 Behind House Seized
Property Description: One No 24. and with
DVD 5th Cross, K.R. Police
with Photographs & Videos Road,
Taken During the Jayanagara
Panchanama 7th Block
Bengatur City
3 Type: Others 40,000.00 Behind House Seized
Property Description 550 No 24. and with
Grams Ganja (Roots, Stem, 5th Cross, K.R. Police
Leaf & Buds) Including Cora Road,
Cloth Jayanagara
7th Block
Bengatur City
If what was seized and the summary of the charge sheet are read
in tandem, it would become an admitted fact that roots, stems,
leaves, buds including plastic bag were put to weight. Whether this
could be done is what is required to be noticed.
7
8. While it is a crime to permit cultivation of a cannabis crop
in the residential premises, in the case at hand it is in the backyard
amongst other weeds, general in nature. In such circumstances,
considering identical issue, the Apex Court in the case of ALAKH
RAM V. STATE OF U.P.1, has held as follows:
"4. 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 happen 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.
5. 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 was 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."
6. The above evidence is to be appreciated in the
background of other evidence on record. Appellant
1
(2004)1 SCC 766
8
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. 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 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."
(Emphasis supplied)
The Apex Court holds that plants sprouted by natural growth does
not amount to cultivation. In the case before the Apex Court, there
were 17 ganja plants seized, but it was weighed together.
Following the said judgment, the coordinate bench of this Court in
the case of KOLANDAISWAMY V. STATE OF KARNATAKA2, has
held as follows:
2
2017 SCC OnLine Kar 275
9
"1. The petitioner is facing proceedings for an offence
punishable under Section 20(B)(ii)(b) of the Narcotic Drugs
and Psychotropic Substance Act, 1985. It is alleged that the
petitioner was caught in possession of 4 Kg. 350 Gms.
of Ganja. But however in the complaint, which is in the
Kannada language it is indicated that what has been
seized is "Ganja Soppu." It is pointed out by the learned
counsel for the petitioner that it is not only described as
Ganja Soppu, but it also includes stems, roots and
seeds. It is pointed out that Ganja as defined under the
NDPS Act is categorical and it would not include leaves,
seeds or other parts of the cannabis plant. Therefore,
the candid description of the material seized not only
includes the flowering tops but also leaves, stems and
roots of the cannabis plant, which would put it outside
the definition of Ganja under the Act. In other words,
the Act requires the parts of the plant to be segregated.
Since other parts of the plant are also included, it would
result in futile proceedings.
2. The learned Government pleader would not dispute the
position that Ganja has a particular definition under the NDPS
Act and it would not include all the parts of the cannabis plant.
Further the quantity seized which is stated to be 4 Kg
350 gms. consisted of all parts of the cannabis plant
other than the flowering tops, which would be
misleading and would result in the entire exercise being
futile.
3. Accordingly, the petition is summarily allowed. The
proceedings pending in Spl. Case No. 19/2016 on the file of
the Principal District and Sessions Judge, Chamarajanagar,
stands quashed."
(Emphasis supplied)
10
Subsequent to the afore-quoted judgments, the coordinate benche
of this Court in the case of STATE OF KARNATAKA v.
MANJUNATH3 has held as follows:
"9. On close reading of the evidence which has been
produced and the material placed on record, the only
contention which has been taken up by the learned counsel for
the respondent is that in order to establish the case, the
prosecution has to prove that the accused has cultivated the
prohibited plants in the said land and in order to substantiate
the said fact the prosecution has adduced the evidence.
10. PW1 is the Village Accountant, PW2 the PWD
Engineer and PWs.3 and 4 are the Police Official witnesses. On
close reading of the said evidence though they have stated
that they have found the ganja plants in Sy.Nos.11/1 and 9/2,
they have not specifically proved with material to show that
the accused had cultivated the said prohibited plants in the
said land. It is well proposed proposition of law by the
Hon'ble Apex Court in the case of Alakh Ram Vs. State of
Uttar Pradesh reported in 2004(1) Supreme 405,
therein the Hon'ble Apex Court has observed that in
order to prove the guilt of the accused under Section 20
of the NDPS Act, it must be proved that the accused has
cultivated the prohibited plants and it is not enough that
few plants were found in the property of the accused
that he has cultivated the said plants in his land.
11. Admittedly, as could be seen from the
evidence and the spot mahazar Ex.P2, the said plants
which have been spotted are not in a group and they
were in a scattered manner and that too when they
went to Sy.No.11/1, there they found two ganja plants
weighing 5 Kgs. that itself clearly goes to show that if at
all the accused is intending to cultivate the ganja plants,
then under such circumstances he will not grow only
two plants in his entire land. That too along with the
other crops if only two plants are found, then under
3
Crl.A.No.394 of 2018 disposed on 11-09-2019
11
such circumstances it will not be called as even
cultivation of the ganja plants.
12. Be that as it may. When the ganja plants were
uprooted and weighed and they were weighing 5 kgs.
the said ganja plants were wet and dried, then under
such circumstances, weighing which has been made
also appears to be not correct.
13. In order to weigh the ganja plants, the seeds,
buds, flowers, stem and edges of the leaves has to be
separated from the plant and then thereafter it has to
be weighed. Without following the said procedure, the
Investigating Officer has taken the entire plant for the
purpose of weighing and has come to the conclusion
that the said ganja weighed was 5 kgs.
14. One more crowning factor that is found from the
case of the prosecution is that they continued the proceedings
and went to Sy.No.9/2 and there they found 10 ganja plants
and out of them, 4 ganja plants were dry plants and 6 ganja
plants were wet and said ganja plants have also been seized.
For the reasons best known to the Investigating Officer, the
owner of the land i.e. Hemantha has not been arrayed as an
accused in the present case. That itself clearly goes to show
that it is not only a tainted investigation, but a malafide and
defective investigation. Major portion of the ganja plants have
been found in Sy.No.9/2 and only 2 ganja plants have been
found in the land of the accused, then under such
circumstances the case of the prosecution creates a doubt and
it is well proposed principles of law that if any doubt arises in
the case of the prosecution, then the said benefit should go to
the accused.
15. Even it is well proposed proposition of law by the
Hon'ble Apex Court as well as by this Court that the
Investigating Agency has to follow the guidelines issued by the
Narcotic Control Bureau column No. 1.18 and there must have
a quantitative and qualitative test within 15 days and further
15 days of the seizure. The said procedure has also not been
12
followed to come to the conclusion that the said seized
material is a ganja.
16. Though the FSL report has been produced,
subsequently in order to come to the qualitative test, the said
procedure has not been followed. In that light also the case of
the prosecution creates a doubt and the benefit of doubt
should go to the accused."
(Emphasis supplied)
Further, in the case of APPAYYA V. STATE OF KARNATAKA4, the
coordinate bench of this Court holds as follows:
"23. The learned Counsel for the appellant has
relied on some authorities of the Hon'ble Supreme
Court and as well this Court reported in (2004) 1
SCC 766 (Alakh Ram v. State of U.P.), 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.
24. In the instant case, one witness was
examined to prove the nature of the offence
committed by the accused. It was PWI who
4
2019 SCC Online Kar 4136
13
accompanied the police officers to the appellant's
field. The evidence given by PWI 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."
25. 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. 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.
26. In the result, we find appellant Alakh Ram
not guilty of the offence under Section 20 of
14
the NDPS Act. His conviction and sentence is set
aside and his bail bonds would stand cancelled. The
appeal is allowed accordingly."
... ... ...
29. The learned Counsel for the appellant is
also relied on the decision of this Court reported
in ((2010) 5 KCCR 4163):, (2010) 5 Kant LJ
279 (K.K. Rejji v. State by Murdeshwar Police
Station, Karwar), 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) to (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). Hence the evidence
produced before the prosecution to sustain the
15
charge is totally vague. If the whole plant is seized,
then it will only be a cannabis plant and not ganja."
30. 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 offence 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.
31. 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.
32. 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 Sl. 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 toted
weight of the property seized.
33. In this case also, the Investigating Officer
has weighed entire plants without segregating the
fruiting and flowering. If that has hot 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
16
Act. 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; or
(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; and
(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
17
lakh rupees but which may extend to two
lakh rupees:"
34. 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.
35. 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."
(Emphasis supplied) 18 Subsequent to the afore-said judgment, the coordinate bench of this Court in the case of MANJUNATH P V. STATE OF KARNATAKA5 has held as follows:
"21. In the case of ALAKH RAM VS. STATE OF U.P. [supra], the Hon'ble Apex Court has held that it must be proved that the accused has cultivated the prohibited plant voluntarily and in substantial quantity. In the said case, having regard to the extent of land jointly owned by the accused and his relatives, it is held that it was not proved that the land from which they were seized belonged exclusively to the accused or that he had any exclusive right over it or that it had been voluntarily cultivated by the accused. Hence, it is held that conviction could not be sustained.
22. In the case of GOPAL VS. STATE OF M.P. [supra] the Hon'ble Apex Court after considering that there was no evidence on record to show that as to who had placed the kadvi on the boundary of two fields, held that it cannot be surmised that the contraband was in concious possession of the appellant.
23. In the case of ILLYAZ ANWAR KHAN AND OTHERS VS. STATE OF KARNATAKA [supra], this Court after observing that in the panchanama, it was nowhere mentioned that the seized ganja plants had flowering or fruiting tops or buds, cannabis leaves without flowering tops and buds cannot be termed as ganja. Hence, held that the accused is entitled to benefit of doubt.
24. In the case of K.K.REJJI AND OTHERS VS. STATE BY MURDESHWAR POLICE STATION, KARWAR [supra], this Court observed that it is necessary to separate the fruiting tops or flowering from the cannabis plant. Since ganja not having been separated and the entire plants having been weighed, the definite 5 Crl.A.No.312 of 2019 disposed on 21-01-2020 19 weight of actual flowering or fruiting tops of the ganja plant was not done, acquitted the accused.
25. Even in the present case, though the prosecution alleges that as many as 174 ganja plants were seized, however, the fruiting tops or flowering of the same have not been separated and weighed. FSL report at Ex.P31 is in respect of the 4 ganja plants taken as sample from the total ganja plants seized. It is not forthcoming as to whether fruiting tops or flowering from the plant were separated and weighed or tested. The officer issuing Ex.P31 has not been examined. Even otherwise, the prosecution has failed to establish beyond all reasonable doubt that it is the accused, who was cultivating ganja plants in the land in question. The material on record does not indicate the same. Hence, the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt."
(Emphasis supplied) If the facts obtaining in the case at hand are considered on the touchstone of what is held by the Apex Court in the case of ALAKH RAM, as followed by this Court in the afore-quoted judgments, the charge against the petitioner must fail for reasons more than one.
9. The prosecution has not placed an iota of evidence to demonstrate that the petitioner was cultivating ganja and the quantity of ganja found from the backyard of the petitioner was admittedly weighed along with the entire plants that were uprooted without segregation, which can be gathered from the P.F. quoted 20 supra. Therefore, it is an admitted fact that segregation of leaves and the actual ganja is not made prior to weighing the same and the charge sheet is filed. Therefore, the charge sheet is filed blatantly contrary to law, as laid down by the Apex Court and followed by this Court in the afore-quoted judgments.
10. In that light, petition deserves to succeed and accordingly, I proceed to pass the following:
ORDER
(i) Criminal Petition is allowed.
(ii) Entire proceedings in Spl.C.C.No.665 of 2024 pending on the file of XXXIV Additional City Civil and Sessions Judge and Special Judge for NDPS Cases at Bengaluru stand quashed.
Sd/-
(M. NAGAPRASANNA) JUDGE Bkp CT:MJ/SS