NDPS | Prosecution Cannot Pin Cannabis Cultivation on One Co-Owner Without Proof: Bombay HC Acquits

"Asking the Accused to Prove He Was Not Cultivating the Property Would Amount to Putting a Negative Burden on Him — Not in Accordance With Criminal Jurisprudence", Bombay High Court (Aurangabad Bench) has acquitted a man convicted under the NDPS Act for allegedly cultivating cannabis plants on agricultural land, holding that where the 7/12 extract shows four co-owners of the land, the prosecution cannot fasten criminal liability on one of them without establishing through positive evidence that it was he, specifically, who was cultivating the contraband plants.

Justice Rajnish R. Vyas, setting aside the five-year rigorous imprisonment sentence awarded by the Additional Sessions Judge-2, Aurangabad, held that the prosecution failed to prove the foundational ingredient of "cultivation" beyond reasonable doubt and that an accused's alleged pointing out of a spot to police — without a lawfully recorded confession — cannot alone sustain a conviction.

On 12 October 2022, the Assistant Police Inspector at Soygaon Police Station received secret information that one Mahajan was cultivating cannabis plants in an agricultural field bearing Gat No. 29 at Jarandi Village, Taluka Soygaon, District Aurangabad. A raiding party was assembled, the Naib Tahsildar was requisitioned as a gazetted officer, panchas from the taluka agricultural office were called, and the raid was carried out.

On reaching the spot, the police encountered the appellant Subhash Mahadu Mahajan working in the field. He disclosed that the field was Gat No. 29. When asked whether he had cultivated cannabis plants, he allegedly replied in the affirmative and pointed out the spot. Thirty-five cannabis plants of seven to eight feet in height, weighing approximately 63 kg, were found, uprooted, and seized. A panchnama was drawn, samples were sent for chemical analysis, and an FIR was registered. A chargesheet was filed and the Trial Court convicted the appellant, imposing rigorous imprisonment of five years and a fine of Rs. 10,000.

The appellant challenged the conviction, arguing through counsel Mr. Rehan Khan that nothing on record proved it was he — and not any of the other co-owners of the land — who was cultivating the plants.

The 7/12 Extract That the Prosecution Tried to Ignore

The heart of the acquittal lay in a single revenue document — Exhibit 66, the 7/12 extract of Gat No. 29. It showed the land as Class-I agricultural land with four recorded occupiers: Malobai Mahadu Mahajan, Subhash Mahadu Mahajan, Sunil Mahadu Mahajan, and Dattu Raghunath Mutthe.

The Court held that once four names appeared in the revenue record, "it was the duty of the Investigating Officer to verify which person was occupying or cultivating the portion of land where the Cannabis plants were found growing." This elementary step was never taken.

The Investigating Officer admitted in cross-examination that before conducting the raid, he did not verify the ownership of Gat Nos. 28 and 29 or the names in the 7/12 extract. He did not enquire whether partition had taken place among the co-owners. He did not record the statements of the other co-owners Malobai Mahadu Mahajan and Sunil Mahadu Mahajan. He did not visit Gat No. 28 even though his initial information referred to both Gat Nos. 28 and 29. He was not even certain which Gat number the field bore until the appellant told him.

The mutation entry No. 3177 pertaining to the appellant's share in the land was on record but was never specifically proved or examined by the prosecution — a glaring omission that the Court called out expressly: "The mutation entry 3177 would have been of great help to the prosecution, but surprisingly, it has not been done." The area shown against the appellant's name was 0.80, but which specific portion of the land this corresponded to was never established.

"Cultivation" Requires a Conscious Act — Presence Is Not Enough

The Court examined the core ingredient of the offence under Section 20(a)(i) of the NDPS Act — the act of "cultivation" — and held that it requires far more than mere presence on the land. Citing a Kerala High Court ruling in Jatin v. State of Kerala (CRL. MC. No. 8469/2025, decided 04.12.2025), the Court held that "the expression 'cultivate any cannabis plant' encompasses any act of planting, tilling, raising, growing, farming or gardening a cannabis plant with the mens rea" and that "the essence of the offence lies in the conscious act of planting and nurturing a cannabis plant."

"Cultivation would necessarily entail taking care of the plants," the Court observed. No evidence — not from any of the four prosecution witnesses — established that the appellant had planted, tended, watered, or otherwise actively nurtured the cannabis plants. Nobody from the adjoining fields, no villager, no Talathi, no revenue official was examined to establish that it was the appellant who had been seen cultivating the land.

Appellant's Pointing Out of Spot Not a Valid Confession

The prosecution relied heavily on the fact that the appellant, when asked about the cannabis plants, replied in the affirmative and pointed out the cultivation spot. The State argued this amounted to an admission sufficient to support conviction.

The Court rejected this entirely. "The law prescribes the procedure for recording the confession of the accused. The statement made before the police, in the facts and circumstances of the case, will not lean in favour of the prosecution," the Court held. A statement to police pointing out a spot — without compliance with the procedure for recording confessions under the law — cannot be the sole basis of conviction, particularly when no other positive evidence corroborates it.

Section 54 Presumption Cannot Be Invoked Without Foundational Facts

The prosecution sought to invoke the presumption under Section 54 of the NDPS Act — which places the burden on the accused to explain possession of contraband. The Court held that this presumption is not self-activating. It can only arise after the prosecution has first proved the foundational facts — including possession and control over the contraband or the place where it was found.

Since the prosecution had not established that the appellant was in exclusive or even primary possession and control of the portion of Gat No. 29 where the plants were found, the presumption under Section 54 simply could not be invoked. The Court emphasised that "the burden of proof lies on the prosecution and not on the defence" and that asking the accused to prove a negative — that he was not cultivating the property — would be wholly inconsistent with the principles of criminal jurisprudence.

Supreme Court on Reasonable Doubt — Applied to the FactsThe Court drew upon the Supreme Court's recent ruling in Zainul v. State of Bihar, 2025 SCC OnLine SC 2152 to articulate the standard of proof required. It reiterated that "reasonable doubt must be actual and substantial — not imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense, growing out of the evidence in the case."

Applying this standard, the Court found that the absence of any positive evidence connecting the appellant to the act of cultivation created exactly such a reasonable doubt — not a fanciful one, but one rooted firmly in the prosecution's own admissions during cross-examination and the undisputed revenue record showing four co-owners of the land.

The Court also relied on the Supreme Court's ruling in Alakh Ram v. State of U.P., (2004) 1 SCC 766, where similar facts — cannabis plants found on jointly owned land, no evidence of exclusive ownership or cultivation by the accused — led to acquittal. It held: "There is no evidence that the appellant cultivated these Ganja plants. They may have sprouted there by natural process." Earlier Bombay High Court rulings in Madhukar v. State of Maharashtra and Shahaji Mattapattil v. State of Maharashtra were also applied to the same effect.

The criminal appeal was allowed. The conviction and sentence under Section 20(a)(i) of the NDPS Act were set aside. The appellant was directed to be released forthwith if not required in any other proceedings. The fine, if deposited, was ordered to be refunded.

Date of Decision: 7 March 2026