Prosecution must provide positive evidence of exclusive possession or conscious cultivation to sustain a conviction under Section 20 of the NDPS Act.

The appellant was convicted by the Additional Sessions Judge-2, Aurangabad, in Special Case No. 386/2022 for the cultivation of Cannabis plants on Gut No. 29

On October 12, 2022, acting on secret information, the police conducted a raid and seized 62 kg 190 grams of green Cannabis plants allegedly grown near a well in the said field

The prosecution relied on the testimony of four witnesses and a 7/12 land extract

The appellant challenged the conviction on the grounds that the prosecution failed to prove he was in exclusive possession or control of the land, as the 7/12 extract listed multiple owners

1. Whether the prosecution proved beyond a reasonable doubt that the appellant was the person cultivating the Cannabis plants on Gut No. 29

2. Whether the mere presence of the appellant at the site or his name appearing on a joint land record is sufficient to establish "conscious possession" or the act of "cultivation" under the NDPS Act

The court primarily applied Section 20(a)(i) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, which penalizes the cultivation of cannabis plants

It interpreted "cultivate" as requiring a conscious act of planting, tilling, or nurturing with mens rea

The court relied on Alakh Ram v. State of Uttar Pradesh [(2004) 1 SCC 766], establishing that ownership/cultivation must be proved exclusively when land is held jointly

It further applied the principle from Avtar Singh v. State of Punjab [AIR 2002 SC 3343] regarding the necessity of proving custody or control to satisfy the ingredient of "possession"

Zainul v. State of Bihar [2025 SCC Online SC 2152] regarding the standard of "proof beyond reasonable doubt"

The court observed that the 7/12 extract for Gut No. 29 listed four distinct occupants, including the appellant

The Investigating Officer (PW-4) admitted he did not verify which specific portion of the land belonged to the appellant nor did he record statements of the other co-owners

The court found that the prosecution failed to provide evidence of "cultivation"—such as manual industry or nurturing—and merely relied on the presence of the plants on joint property

The court noted that the alleged oral admission by the appellant to the police regarding the plantation was inadmissible and did not satisfy the legal procedure for confessions

Referring to Madhukar v. State of Maharashtra, the court held that without proving the specific boundaries of the accused's portion of land, cultivation cannot be attributed to him

The failure to investigate the mutation entry (No. 3177) that might have clarified the appellant's specific share was deemed a fatal flaw in the prosecution's case

It held that the prosecution failed to prove the foundational facts of exclusive possession and active cultivation, which are prerequisites for invoking the presumption under Section 54 of the NDPS Act

The appellant was acquitted of the offence under Section 20(a)(i) of the NDPS Act and ordered to be set at liberty forthwith, with a direction to refund any deposited fine