The Karnataka High Court is considering pleas by persons booked under the NDPS Act challenging prosecutions concerning the manner in which seized cannabis was weighed and analysed, particularly wherein the weight allegedly included the stems, leaves, seeds of the plant as well the packaging of the contraband.

The single judge bench of Justice M. Nagaprasanna, was hearing two petitions challenging prosecution under the NDPS Act over the weight of seized cannabis.

Last week, the petitioners had argued that mandatory quantitative & qualitative analysis under NDPS Act is not followed since entire plant with stems, leaves & seeds, along with its packet was weighed.

When the matter was taken up, the petitioners argued that under the NDPS Act, Rule 14 of the NDPS Rules and the standing orders/guidelines issued by NCB thereunder, qualitative and quantitative analysis of seized contraband is mandatory.

“…2 Supreme Court orders say NCB standing orders must be followed. They say at the earliest opportunity, prosecution when it gets a chance after seizing, conduct a certification before you destroy the drug and conduct a qualitative and quantitative examination”, Advocate Mayur D Bhanu initially submitted.

The petitioners argued that in the present cases, the entire weight of the seized material (including covers/packaging) was taken into account without any qualitative and quantitative analysis to determine what portion actually constituted the offending substance.

The petitioners raised a significant interpretive question regarding the definition of 'ganja' under the NDPS Act. The petitioner's counsel submitted:

“…When NDPS Act was formulated, Ganja and its definitions were taken from a botany text book. The only thing differentiating hemp or bhang, which is actually legal in India, from ganja is the THC content….”, the counsel added by saying that NDPS Act doesn't consider it as contrabands.

It was argued that for a substance to be termed as 'Ganja', the THC content should be above 30% and quantity of THC should be above the prescribed threshold. It was submitted that "only the fruiting and flowering tops" of the cannabis plant constitute contraband under the NDPS Act as per the aforesaid categorisation. The roots, stems, seeds, and leaves do not qualify as 'ganja' even though they may contain trace amounts of THC the counsel said.

“So if you[State] are going to come and charge me with the weight of the roots or the stem or leaves…. it's not even a drug”, the counsel emphasized.

Notably a coordinate bench of the high court had held in 2022 that cannabis seeds and leaves when not accompanied by fruiting and flowering tops can be excluded from the definition of 'ganja' under Section 2(iii)(b) of the NDPS Act.

While hemp and bhang are legal in India (available in the form of beverages in the name of religion, cosmetics, clothing, etc.), ganja is banned. The only differentiator is the THC content, the counsel underscored.

Drawing a distinction between cases where contraband is mixed with a neutral substance and cases where the entire plant is weighed, the petitioners argued further:

“…if a packet of cocaine which is 100 gms is thrown into a truck of all purpose flowers which is about 100 kgs, the entire 100 kgs of all-purpose flowers get converted into cocaine[as per the current scenario]. To differentiate the drug from the product is the qualitative and quantitative examination is required”

The petitioners contended that the stems, leaves, and roots of the cannabis plant are 'non-drug containing parts' of the same plant. The entire weight cannot be considered as contraband.

“…if there is a component in drug used to improve its potency or used for the purpose of consumption, it can be used but these are not even a part of the drugs”, the counsel said.

Reference was also made to the recognition of industrial hemp (with trace THC content) for cosmetics, clothing, and other purposes, which, according to the petitioner, indicates why it is important to draw a distinction between legal hemp and banned ganja.

“…Narcotic drug is one that is grown naturally, psychotropic substance is one that is chemically produced. That's the difference in narcotic drug and psychotropic substance…”, the court added its perspectives to the submissions made by the petitioner.

The petitioners agreed, adding that while Ganja is grown naturally in soil, however THC becomes more concentrated in hydroponic Ganja since that version is grown in specific conditions.

The petitioners relied upon a detailed judgment of the Madras High Court where it was held that definition of Ganja does not include the stem and stalk, but only includes the flowering or fruiting top.

The counsel thus submitted, "...a complete judgment in overturning conviction. They go deep into how Ganja is formulated”. Meanwhile the SPP sought time to refute the submissions. The court listed listed the matter on August 29 and directed the trial court to defer its hearing till the next date of hearing in the high court.

Also Read: Seeds & Leaves Without Flowering Tops Not 'Ganja' As Per NDPS Act, Rajasthan HC

Also Read: 'Ganja' Seeds, Leaves Not Banned Under NDPS Act: Andhra Pradesh High Court

Also Read: 'Ganja' Quantity Can't Be Determined Precisely If 'Flower' Is Weighed Along With Leaves, Branches: Delhi High Court

Case Title: Prashant Singh & Anr. v. State of Karnataka & Mutreja Rajkumar Boshmal v. State of Karnataka

Case No: WP 26832/2023 & Crl P 13242/2023