In, Roshan Kumar vs The state of Karnataka, a Single Bench of Karntaka HC has held that bhang is not covered under the NDPS Act. Since ganja leaves and seeds are excluded from the definition of ganja and nowhere in the NDPS Act the Bhang is referred as a prohibited drink or prohibited drug.
Facts
The case of the prosecution is that the suo motu complaint alleging that the complainant-Police Officer received a credible information that in the vacant space adjacent, two persons were selling prohibited contraband ganja as well as Bhang and the informant also informed the complainant that the said two persons may arrive on the next day around the same time in the said spot. After receiving the information, the complainant obtained permission to conduct raid and they visited the spot awhere the petitioner said to be in possession of ganja as well as Bhang. They seized 29 kgs of Bhang of different companies, 400 grams of ganja and brought the same to the Police station and got remanded the accused to the judicial custody.
His bail application came to be rejected by the Special Judge. Hence, This petition is filed by the petitioner-accused under Section 439 of Cr.P.c. for granting regular bail the offence punishable under Section 20(b) of the NDPS Act.
Contention Made
Petitioner: that the petitioner is in possession of 400 grams of ganja which is less than the small quantity.
Further, Counsel Contended, The Bhang is a drink normally sold in the Lassi shops at North India. It is not a prohibitory drug. The said drink is used during the Shivarathri festival, it is not a banned drink and it does not fall under the NDPS Act.
Respondent: that the Bhang is prepared out of the ganja leaves, therefore, it comes under the definition of ganja.
Court Observation
The Single Bench of Karnataka HC while analyzing the definition of Section 2(iii) of NDPS Act observed that, On bare reading of the provision under Section 2(iii)(a) and (b) that charas and ganja or (c) i.e., any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom,
But, there is no scientific evidence before this Court to show that the Bhang is prepared out of either charas or ganja or ganja leaves.
Further Court observed that, Since ganja leaves and seeds are excluded from the definition of ganja and no where in the NDPS Act the Bhang is referred as a prohibited drink or prohibited drug. Even the State Government has not made any rules under the NDPS and mentioned about the Bhang as prohibitory drug or issued any notifications in respect of Bhang.
Court Judgment
The Karnataka HC while granting bail to petitioner has held that bhang is not covered under the NDPS Act.
Therefore, until the receipt of forensic science lab report, in order to confirm that this bhang is prepared out of the by the charas or ganja, the Court cannot come to any conclusion that the bhang is prepared out of the substance of ganja.
Case: Roshan Kumar vs The state of Karnataka
Citation: CRIMINAL PETITION NO.6611 OF 2022
Bench: Hon’ble Mr. Justice K. Natarajan
Decided on: 26th August, 2022.
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