NDPS Act | APHC Sets Aside 'Totally Disturbing' Conviction Wherein Negative Burden Was Put On Accused To Prove He Did Not Own Cultivated Land

The Andhra Pradesh High Court has held that to prove that an individual is the owner of land, the prosecution needs to file documentary evidence or examine the revenue officials and cannot rely on recitals of mahazarnama (declaration), to convict an individual under section 20 of the NDPS Act.

Justice A.V. Ravindra Babu has passed the allowing a criminal appeal filed against the order of the lower court, convicting the accused under sections 8 and 20 of the NDPS Act for the cultivation of Ganja.

“The Prohibition & Excise party did not examine any revenue officials to ascertain as to who are in possession of the land in question...the signature of A.3 on the mahazarnama was not in dispute and his contention that he signed in the mahazarnama in the police station is not tenable and that A.3 (appellant) admitted before Excise police in mahazar that he is the owner of the land and it is sufficient to prove the case.”

The Bench had also called the observation of the lower court 'disturbing' wherein it held that if the accused/appellant was not the owner of the said land, it is for him to prove the same.

“Those findings are totally disturbing. The judgment of the learned Additional Sessions Judge reveals that he put negative burden on A.3 stating that if really A.3 was not the owner or possessor of the land, he has to file documentary proof to prove the said aspect.”

The case of the prosecution was that, upon conducting a regular visit to a cotton field, they found that Ganja plants were being grown as mixed crops in the plantation. They found A1 and A2 on the field and upon making further inquiry, A1 and A2 disclosed to the police that the land belonged to the appellant/A3.

The Ganja plants were uprooted, and a mahazarnama was drawn out before mediators, A3 confessed to being the owner of the land and signed the mahazarnama along with the other accused.

When the case reached trial, the Sessions Judge held that although A1 and A2 were working the field, the prosecution failed to file the adangal copies of A1 and A2 to prove that they were owners of the field and acquitted them. On the other hand, the sessions judge convicted A3 explaining that A3 had confessed to being the owner of the property and signed on the Mahazarnama before the Mahazarwitnesses.

The prosecution noted that both the Mahazarwitnesses had turned hostile and the lower court had convicted the appellant on the evidence given by the investigating officers.

Justice Babu also noted that it would be unsustainable in the eyes of the law to extend the benefit of the doubt to A1 and A2, of whom the prosecution had not filed adangal copies, but not extend the same benefit to A3.

“Here is a case that A.1 and A.2 were physically present by attending agricultural operations. Having put negative burden on A.3 that he has to file proof that he was not the owner or possessor of land, the learned Additional Sessions Judge extended benefit of doubt against A.1 and A.2 on the ground that the prosecution did not file any Adangal to show that A.1 and A.2 raised crop in the land…The whole approach of the learned Additional Sessions Judge in appreciating the evidence on record is not in accordance with law.”

CrlP no.750 of 2023

Counsel for Appellant: Shaik Mohammed Ismail representing C. Sharan Reddy

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