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TMI Blog2000 (11) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... bis for about 31 acres in Mathikettan Parai, Thalai vetti Parai, Utthamapalayam and in Semangakuzhulipallam and destroyed them. Further charge is that the second and third accused cultivated cannabis plants in the land belonging to the first accused and on the directions of the first accused. The second and third accused were convicted by the Trial Judge for an offence under Section 8(b) read with 21(a) clause 1 of the NDPS Act and each of them was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 10,000/- each in default to undergo rigorous imprisonment for one year. Hence the appeals. 3.The facts that are necessary to decide the appeals are as follows : P.W. 1 the Superintendent of Police under NDPS Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and third accused who were found in the hut where Explosive substances were also available and they obtained statements implicating them in the commission of the offence. On facts, there is no hesitation to believe the evidence of P.Ws 1 to 3 that they went and destroyed the cannabis plants and also arrested the second and third accused and obtained statements from them. The English translation of those statements being marked as Exs P8 and P9. 6.The main point that required for consideration is as to whether the prosecution has fulfilled its obligation in establishing the commission of offence against the accused beyond reasonable doubt. Both the appellants who are second and third accused before the Trial Court stand charged for an offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments. 8.Learned Departmental Counsel submits that it is not hit by Article 20 clause 3 of the Constitution of India as they were not recorded by police officers. So far as the provision under Article 20 Clause 3 of the Constitution of India is concerned, it does not speak about the person who recorded the statement. It is a general safeguard given to the accused person from being compelled to be a witness against himself. Therefore, this ruling is on a different footing. Regarding the admissibility of the evidence. The Supreme Court in the case of Rajkumar Karwal v. Union of India - 1990 (48) E.L.T. 496 (S.C.) = 1990 (2) Supreme Court Cases 409 had been pleased to hold : "Officers of the Department of Revenue Intelligence who have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o convict them provided the statement are sufficient to the convict them and they are corroborated by any material particulars. 9.Coming to the facts, what has been stated in both the statements is that both the accused/appellants (accused 2 and 3) were only doing coolie work and working as watchmen of the place where cannabis were planted. This piece of evidence, I do not think, would suffice to prove the ingredient of the provisions of law as embodied in Section 8(b) of the NDPS Act. "Whoever Cultivates" is the main and important ingredient. This is required to be proved by the prosecution. Merely because the coolie was there for watering the plants or watching the plants to prevent further damage by any source, he cannot be said to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where cannabis plants were cultivated to convict them. Therefore, the main ground on which A2 and A3 were convicted by the trial Court appears to be their presence in the field. Mere presence of any person in the place where cannabis plants were cultivated especially when A2 and A3 had stated that they were employed as coolies for the purpose of guarding the area where cannabis plants were cultivated, does not prove that they have cultivated cannabis plants. 11.The act of cultivate cannot be equated into the act of guarding the plants. The term "Cultivation" requires an element of expenses besides physical exertion to raise the plants. The plants are raised motivated by profit and that is why expense are incurred. By no stretch of imagina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case on hand, though we accept the evidence of the prosecution witnesses that cannabis plants were found in the fields in question, still there is no proof forthcoming from the prosecution to establish that the accused were in exclusive possession of the fields or they were the owners of the field or they had actually cultivated the plants. Coolies who sow the plants, water them and guard the field cannot become cultivators. In the absence of such proof, the second and third accused also cannot be convicted for the contravention Section 8(b) of NDPS Act. 14.Learned Departmental Counsel relying on Section 35 of the NDPS Act submits that presumption is against the accused and hence they are liable to be convicted. Section 35 reads that in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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