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 hemp (bhang) 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
cannabis 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 Charas, Ganja 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 Rajasthan, 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
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 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, Varanasi 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.
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