Prosecution Must Prove Active Growing Or Nurturing Cannabis Plants To Establish "Cultivation" U/S 20 NDPS Act: Bombay High Court
The High Court held that for securing a conviction under Section 20(a)(i) of the NDPS Act, the prosecution must establish that the accused was actively cultivating or nurturing cannabis plants, and mere recovery of plants from land in which the accused is one of several recorded occupants is insufficient to sustain a conviction.
The Bombay High Court has held that a conviction for the cultivation of cannabis plants under Section 20(a)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 cannot be sustained unless the prosecution establishes that the accused was actively involved in cultivating or nurturing the plants.
The Court observed that the core ingredient of the offence is “cultivation”, which must be proved through cogent evidence.
The Court was hearing a criminal appeal challenging the judgment of the Additional Sessions Judge, Aurangabad, by which the appellant was convicted for cultivating cannabis plants and sentenced to five years’ rigorous imprisonment along with a fine.
A Bench of Justice Rajnish R. Vyas observed: “Cultivation would necessarily entail taking care of the plants. Thus, no positive evidence is brought on record that it was the present appellant/applicant who was cultivating the land. At least an attempt should have been made by the prosecution that it was the present applicant who was actively involving growing the plant or nurturing the plants until it developed.”
Advocates Rehan Khan and Al. Amoodi A.M. appeared for the appellant, while M.N. Ghanekar, APP, represented the State.
Background
The case arose from an FIR registered alleging that the appellant was cultivating cannabis plants in an agricultural field.
Acting on secret information, the police formed a raiding party comprising police officials, panch witnesses, and a Gazetted Officer. Upon reaching the location, the raiding team allegedly discovered cannabis plants growing near a well in the field. The plants were uprooted, weighed and seized during the raid.
According to the prosecution, the seized plants weighed approximately 63 kilograms. Samples were drawn and forwarded for chemical analysis, and a charge sheet was subsequently filed against the appellant for an offence under Section 20(a)(i) of the NDPS Act.
The trial court convicted the appellant and sentenced him to rigorous imprisonment for five years with a fine of ₹10,000. Aggrieved by the conviction, the appellant approached the High Court.
Court’s Observation
The Bombay High Court examined the essential ingredient of the offence under Section 20(a)(i) of the NDPS Act, namely “cultivation” of cannabis plants.
Referring to the meaning of the term “cultivate”, the Court observed that cultivation necessarily involves planting, nurturing or tending to the plants until they develop.
The Court noted that the prosecution relied primarily on the recovery of cannabis plants from the field and the alleged statement of the accused indicating the location of the plants. However, there was no independent evidence to establish that the appellant was actually cultivating the plants.
The Court further observed that the documentary evidence, particularly the 7/12 extract of the agricultural land, showed that the field was jointly recorded in the names of four persons.
The Court held that in such circumstances, it was incumbent upon the investigating agency to establish which person was in possession of the specific portion of land where the cannabis plants were found.
In this context, the Court noted that neither the investigating officer nor the witnesses had produced evidence demonstrating that the appellant was the cultivator or exclusive possessor of the land.
The Court also observed that the prosecution had failed to verify the ownership or possession of the land before conducting the raid and had not examined other co-occupants named in the revenue records.
The Court emphasised that the burden of proving cultivation lay on the prosecution and could not be shifted onto the accused, while further stating that “even for raising the presumption under the provision of Section 54 of the Narcotic Drugs and Psychotropic Substances Act, the prosecution will have to prove the foundational facts”.
Referring to the Supreme Court decision in Alakh Ram v. State of Uttar Pradesh (2004), the Court reiterated that recovery of cannabis plants from land owned or occupied by multiple persons, without evidence linking the accused to cultivation, cannot sustain a conviction.
The Court therefore held that the prosecution had failed to establish beyond a reasonable doubt that the appellant had cultivated the cannabis plants.
Conclusion
The Bombay High Court held that the prosecution had failed to prove the essential ingredient of cultivation required for an offence under Section 20(a)(i) of the NDPS Act.
Allowing the appeal, the Court set aside the conviction recorded by the trial court.
Accordingly, the Court held that “the appellant/accused is acquitted for the commission of an offence punishable under Section 20(a)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985.”
The Court directed that the appellant be released forthwith if not required in any other case and ordered a refund of the fine amount deposited by him.
Cause Title: Subhash Mahadu Mahajan v. State of Maharashtra (Neutral Citation: 2026:BHC-AUG:10837)