Bhang Doesn't Fall Within Definition Of 'Cannabis (Hemp)' Under NDPS Act: Jharkhand High Court
The Jharkhand High Court has held that possession of bhang does not constitute an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985, as it is excluded from the statutory definition of “cannabis (hemp)” under Section 2(iii) of the Act. Setting aside the conviction of the appellant under the NDPS Act, the Court held that once the Forensic Science Laboratory (FSL)...
The Jharkhand High Court has held that possession of bhang does not constitute an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985, as it is excluded from the statutory definition of “cannabis (hemp)” under Section 2(iii) of the Act. Setting aside the conviction of the appellant under the NDPS Act, the Court held that once the Forensic Science Laboratory (FSL) reported that the seized substance was bhang and not ganja, the conviction could not be sustained.
A Single Judge Bench of Justice Pradeep Kumar Srivastava was hearing a criminal appeal challenging the appellant's conviction under Sections 20(B), 22(B) and 11(B) of the NDPS Act. According to the prosecution, on October 17, 2000, a police patrol party intercepted the appellant near Chaibasa Bus Stand after he allegedly attempted to flee on seeing the police. Upon searching a VIP briefcase carried by him in the presence of witnesses and a Gazetted Officer, the police claimed to have recovered 12 polythene packets containing approximately 11 kilograms of ganja. The appellant was thereafter prosecuted under the NDPS Act.
Before the High Court, the appellant's counsel relied upon the FSL report dated November 29, 2002, which concluded that the seized substance was “bhang” and not ganja. It was argued that although the report noted that both ganja and bhang are cannabis, bhang is specifically excluded from the definition of “cannabis (hemp)” under Section 2(iii) of the NDPS Act and, therefore, its possession does not constitute an offence punishable under the Act.
The State opposed the appeal, contending that since the FSL report itself recorded that both ganja and bhang are cannabis, the seized substance would still fall within the purview of the NDPS Act.
Examining the statutory scheme, the High Court referred to decisions of the Karnataka, Punjab and Haryana, Bombay and Rajasthan High Courts holding that bhang does not fall within the definition of “cannabis (hemp)” under Section 2(iii) of the NDPS Act. The Court observed that while Section 2(iii) specifically includes charas, ganja and mixtures thereof, bhang finds no mention in the statutory definition.
The Bench further noted that there was no scientific evidence to show that bhang is prepared out of charas or ganja, and that neither the NDPS Act nor any rules or notifications issued by the State Government treat bhang as a prohibited drug. The Court held:
“In view of above discussion and reasons and specific consideration, it is crystal clear that 'Ganja' and 'Charas' are included within the definition of cannabis (Hemp), whereas under N.D.P.S. Act, 'Bhang' is excluded…”
The Court further observed that the present case was not one involving cultivation of cannabis plants but merely possession of a substance initially believed to be ganja, which was ultimately found to be bhang. Holding that the appellant's conviction under the NDPS Act was “absolutely illegal and not justified under law”, the High Court set aside the conviction and sentence and allowed the appeal.
Case Title: Sunil Kumar Singh v. State of Jharkhand
Case Number: Cr. Appeal (S.J.) No. 726 of 2009
Appearance: Mr. Naveen Kr. Jaiswal for the Appellant. Mrs. Nehala Sharmin for the Respondent.