MANU/PH/0546/2004

Equivalent/Neutral Citation: 2005C riLJ253, 2004(4)RC R(C riminal)506

IN THE HIGH COURT OF PUNJAB AND HARYANA

Criminal Appeal No. 286-SB of 1992
Decided On: 21.08.2004
Arjun Singh Vs. State of Haryana
Hon'ble Judges/Coram:
Satish Kumar Mittal, J.
Counsels:
For Appellant/Petitioner/Plaintiff: J.S. Bedi, Adv.
For Respondents/Defendant: Sunil K. Vashisth, AAG
Case Note:
Narcotics - Conviction - Offence committed punishable under Section 20-B of
the Narcotic Drugs and Psychotropic Substances Act, 1985 (the Act) - Held,
bhang (hemp) does not fall under the definition of cannabis (hemp) as
defined under Section 2(iii) of the Act - Thus, its possession did not constitute
an offence punishable under the Act - Cultivation of 'Bhang' was punishable
under the Act although it was not included within definition of cannabis
(hemp) and not Act No. 2 of 1950 within meaning of Article 254 of the
Constitution of India - As regards cultivation of Bhang was concerned, the Act
would prevail over Act No. 2 of 1950 and latter enactment passed by
Legislature of State should be deemed to be repugnant and void to extent of
its inconsistency to former enactment passed by parliament - Personal use
and sale of Bhang was not an offence under Rule 24 of Rajasthan Narcotic
Drugs and Psychotropic Rules, 1984, since in present case question of
possession and sale of Bhang was not involved, therefore, it was left open to
be decided in an appropriate case.
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

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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) RCR 449 : (1995 All L J 1103); Manjee v. State of Rajasthan 1996 (2) RCR 258
: (1996 Cri LJ 3787) and Gurdial Singh v. State of Punjab 2002 (3) R C R 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 L J 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 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 CriL J 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 :-

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 "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) R
C R 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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