NDPS Act | Prosecution Must Prove Actual Cultivation Of Cannabis, Mere Presence On Land Not Enough: Bombay High Court

The Bombay High Court has held that in cases involving the alleged cultivation of cannabis under the NDPS Act, the burden lies on the prosecution to establish through cogent evidence that the accused was actually cultivating the plants, and not merely present at the spot or named in land records. The Court observed that asking the accused to prove that he was not cultivating the land would amount to imposing an impermissible negative burden contrary to settled principles of criminal jurisprudence.

Justice Rajnish R. Vyas was hearing a criminal appeal filed by Subhash Mahadu Mahajan challenging his conviction under Section 20(a)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985, for allegedly cultivating cannabis plants on an agricultural land. The trial court had sentenced him to five years' rigorous imprisonment along with a fine. The appellant contended that there was no evidence to show that he was the person cultivating the land or the cannabis plants.

The Court examined the evidence on record and noted significant gaps in the prosecution's case. It found that neither the investigating officer nor any witness had verified ownership or actual possession of the land prior to conducting the raid. The officers had also failed to examine other co-owners named in the land records or ascertain whether the land had been partitioned and which portion fell to the share of the appellant.

The Court further observed that even though the accused was present at the spot and had allegedly pointed out the plants, such a statement made before the police cannot be treated as sufficient proof of guilt in the absence of corroborative evidence. None of the witnesses had categorically deposed that the appellant was cultivating or tending to the cannabis plants.

The Court held 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. It observed:

“The positive evidence was not brought on the record, and asking the accused to prove that he was not cultivating the property would amount to putting a negative burden on him, which would not be in accordance with the principles of criminal jurisprudence, in the facts of the case.”

Finding that the prosecution had failed to establish a crucial link connecting the appellant to the cultivation of cannabis plants, the Court held that the conviction was unsustainable. It accordingly allowed the appeal, set aside the trial court's judgment and acquitted the appellant.

Case Title: Subhash Mahadu Mahajan v. State of Maharashtra [Criminal Appeal No. 848 of 2025]

Citation: 2026 LiveLaw (Bom) 111

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