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Arjun Singh vs State Of Haryana on 21 August, 2004 Equivalent citations: 2005 CriLJ 253

Bench: S K Mittal

Arjun Singh vs State Of Haryana on 21/8/2004

JUDGMENT

Satish Kumar Mittal, J.

1. Arjun Singh accused has filed this appeal against the judgment dated 27-7-2002 passed by the Additional Sessions Judge, Rohtak, vide which he has been convicted under Section 20-B of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act') and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. one lac.

2. As per the prosecution version, 15'/2 kgs. of () was recovered from the possession of the appellant when he was travelling in a train. For that recovery, the appellant was charged for the offence punishable under Section 20-B of the Act and after the trial, he was punished under the aforesaid Section.

3. Counsel for the appellant at the very outset raised the contention that the hemp (bhang) is not a narcotic or psychotropic drug as defined under the Act and hence its possession is not an offence. He submitted that plant and cannabis hemp are two different contrabands under the Act. Cannabis (hemp) has been defined under Section 2(iii) of the Act which includes , and also any mixture, with or without any neutral material of any of the above forms of cannabis or any drink prepared. He submitted that according to the definition of 'Ganja' given in clause (b) of Section 2(iii) of the Act, Ganja is the flowering or fruiting tops of the cannabis plant which excludes the seeds and leaves when not accompanied by the tops. He submitted that the bhang is the leaves of the cannabis plant and it has not been included in the definition of cannabis (hemp) as defined under Section 2(iii) of the Act. He further submitted that in the Act, the possession of the cannabis plant has not been made punishable and only its cultivation has been prohibited and made punishable under Section 8 of the Act. He submitted that bhang as such has not been included in the definition of cannabis (hemp) and its sale, import or export and possession has not been made punishable under the Act. However, under the provisions of the Punjab Excise Act (hereinafter referred to as 'the Excise Act'), the possession of Bhang has been made punishable in the definition of 'Intoxicating drugs' as under Section 3(13) of the Excise Act, bhang has been included in the definition of the intoxicating drugs. Therefore, learned counsel for the appellant, contended that conviction and sentence of the appellant under Section 20-B of the Act is wholly illegal and without jurisdiction. In support of his contention, learned counsel for the appellant has relied upon three judgments of different High Courts, including this Court, viz., Samid v. State of U. P., 1995 (3) Rec Cri R (Cri) 449 : (1995 All LJ 1103); Manjee v. State of , 1996 (2) Rec Cri R (Cri) 258 : (1996 Cri LJ 3787) and Gurdial Singh v. State of Punjab, 2002 (3) Rec Cri R (Cri) 334.

4. Per contra, learned counsel for the respondent though submitted that bhang falls under the definition of cannabis (hemp) as defined under Section 2{iii) of the Act but he could not cite any contrary judgment in support of his contention.

5. After hearing the arguments of the learned counsel for the parties, 1 am of the opinion that this appeal deserves to be allowed and the conviction and sentence of the appellant are liable to be set aside. In all the aforesaid three judgments, it has been held by different High Courts, including this Court, that bhang (hemp) does not fall under the definition of cannabis (hemp) as defined under Section 2(iii) of the act. Thus, its possession does not constitute an offence punishable under the Act.

6. In Samid's case (1995 All LJ 1108) (supra), the Allahabad High Court summoned the officers dealing with the narcotic drugs and cases relating thereto to explain the Court whether bhang is a narcotic or psychotropic

Indian Kanoon - http://indiankanoon.org/doc/1453257/ 1 Arjun Singh vs State Of Haryana on 21 August, 2004 drug and the possession of which is punishable under the Act or not. In response to that, the letter given by the Assistant Director, Narcotics Control Bureau, was placed before the Court in which it was clearly stated that so far as the question of inclusion of 'bhang' under the Act is concerned, it is explicit in the Act itself that 'bhang' is not covered under the Act. Section 8 of the Act lays down prohibition of certain operations and prohibits the transaction in regard to Ganja only and not. the bhang. After considering the said letter and the definition of cannabis (hemp) as given under Section 2(iii) of the Act and the 'cannabis plant', as given in Section 2(iv) of the Act, the Court, came to the conclusion that 'bhang' is not covered under the Act. Therefore, no person can be punished for its possession under the Act. However, it was held that under the Excise Act, the possession of bhang is punishable but not under the Act.

7. Similarly in Manjee's case (1996 CriLJ 3787) (supra), the Rajasthan High Court has elaborated and analysed the various definitions given under the Act and then came to the conclusion that bhang does not fall under the definition of cannabis (hemp) as defined under Section 2(iii) of the Act, by observing as under :-

"13. It is apparent from aforesaid two enactments that under Act No. 2 of 1950 Charas, Ganja and Bhang are included within the definition of cannabis (hemp) whereas under N.D.P.S. Act bhang is excluded. Bhang does not fall within the definition of cannabis (hemp) as defined under Section 2(iii) of N.D.P.S. Act. It is also to be noticed that under Act No. 2 of 1950 cultivation of only cannabis (hemp) plant i.e. Charas, Ganja and Bhang is an offence under Section 54(b) and punishable under Section 54(g)of the said Act whereas under N. D. P. S. Act cultivation of any cannabis plant which means any plant of the genus cannabis as defined under Section 2(iv) of N.D.P.S. Act is punishable under Section 20(a) read with Section 20(b)(l) of the said Act. In my humble opinion although bhang is excluded from the definition of cannabis (hemp) under the N.D.P.S. Act yet it does fall within the definition of cannabis plant and as such its cultivation is punishable under Section 20(a) read with Section 20(b)(i) of the said Act. I am also of the opinion that cannabis (hemp) is one of the species of cannabis plant, therefore, it cannot be held that since 'Bhang' is excluded from the definition of cannabis (hemp) under the N.D.P.S. Act one of the species of cannabis plant, therefore, its cultivation is not an offence and it is not punishable under Section 20(b)(i) of the said Act.

14. In my considered opinion cultivation of 'Bhang' is punishable under N.D.P.S. Act although it is not included within the definition of cannabis (hemp) and not Act No. 2 of 1950 within the meaning of Article 254 of the Constitution of India. As regards cultivation of Bhang is concerned, the N.D.P.S. Act would prevail over Act No. 2 of 1950 and latter enactment passed by the Legislature of State shall be deemed to be repugnant and void to the extent of its inconsistency to the former enactment passed by parliament.

15. However, it is made clear that personal use and sale of Bhang is not an offence under Rule 24 of Rajasthan Narcotic Drugs and Psychotropic Rules, 1984, since in the present case the question of possession and sale of Bhang is not. involved, therefore, it is left open to be decided in an appropriate case." In Gurdial Singhs's case (2002 (3) Rec Cri R (Cri) 334) (supra) this Court also came to the aforesaid conclusion while observing as under :-

"13. It is apparent from aforesaid two enactments that under Act No. 2 of 1950 Charas, Ganja and Bhang are included within the definition of cannabis (hemp) whereas under N.D.P.S. Act Bhang is excluded. Bhang does not fall within the definition of cannabis (hemp) as defined under Section 2(iii) of N.D.P.S. Act. It is also to be noticed that under Act No. 2 of 1950 cultivation of only cannabis (hemp) plant i.e. Charas, Ganja and Bhang is an offence under Section 54(b) and punishable under Section 54 (g) of the said Act whereas under N.D.P.S. Act cultivation of any cannabis plant which means any plant of the genus cannabis as defined under Section 2(iv) of N.D.P.S. Act is punishable under Section 20(a) read with Section 20(b)(i) of the said Act. I am also of the opinion that cannabis (hemp) is one of the species of cannabis plant, therefore, it cannot be held that since Bhang is excluded from the definition of cannabis (hemp) under the N.D.P.S. Act one of the species of cannabis plant, therefore, its 27-7-1992 passed by the learned Additional Sessions Judge convicting the appellant under Section 20-B of the Act is set aside and the appellant is acquitted of the charge framed against him.

Indian Kanoon - http://indiankanoon.org/doc/1453257/ 2