Madhukar S/O Pandurang Kanthale vs The State Of Maharashtra, Summons ...
2002 Latest Caselaw 120 Bom

JUDGMENT

A.P. Deshpande, J.

1. The present appellant came to be charged for the offence punishable under Sections 20, 22 and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter for the sake of brevity referred to as NDPS Act, 1985) and in the alternative Section 27 of the N.D.P.S. Act, 1985. The Sessions Judge, Ahmednagar, on trial found the appellant guilty for commission of offence punishable under Sections 20(b)(i) and 20(b)(ii) of N.D.P.S. Act, 1985. Insofar as the offence under Section 20(b)(i) is concerned, the appellant is sentenced to suffer R.I. for three years and to pay fine of Rs. 5,000/- in default to suffer R.I. for two months. Insofar as the conviction for offence punishable under Section 20(b)(ii) of the N.D.P.S. Act, 1985 is concerned, the appellant is sentenced to suffer R.I. for 10 years, and to pay fine of Rs. 1,00,000/- in default to suffer R.I. for one year. It is relevant to note that the appellant-accused is convicted for offence of possessing Ganja under Section 20(b)(i); whereas the accused is convicted for possessing Bhang under Section 20(b)(ii) of the N.D.P.S. Act, 1985 and sentenced to harsher punishment of 10 years R.I. and fine of Rs. 1,00,000/-. In brief, the case of the prosecution is that on 17.4.1998, the P.S.I. received an information from an informant that one Madhukar Pandurang Kanthale who was wearing white shirt and greenish coloured pant is selling Ganja and Bhang illegally near Munjoba Temple, Ahmednagar. On receiving this information from the informant, P.S.I. took entry in the Station Diary and called panchas along with the measuring scale so also sent a report regarding the information received by him to his superior officer through constable. Alongwith the two panchas, P.S.I. went to the spot and found one person standing near a Tapri who matched the description given by the informant. He was as such apprehended and on enquiry being made he disclosed his name to be Madhukar Pandurang Kanthale. P.S.I. then introduced himself to the appellant-accused and also intimated about the object of search. It is the case of the prosecution that the accused was also informed that if he wants himself to be searched in the presence of some other Gazetted Officer or Magistrate, he has a right to ask for the same. He was also informed that Anupkumar Singh is the superior Police Officer and he himself is a Gazetted Officer and appellant-accused agreed to be searched in the presence of Anupkumar himself. On search being made, accused had on his person 50 packets, out of which 40 were of Ganja and 10 packets were of Bhang. It is only this quantity of alleged contraband article, which forms the basis for conviction of the appellant-accused. In regard to other recoveries made of Ganja and Bhang from one Tapri and house premises, the Sessions Judge has held that the prosecution has failed to prove that either the Tapri or the house premises are owned and/or possessed by the appellant and as such I need not discuss about those recoveries allegedly made from a Tapri and the house premises.

2. The samples were taken from both the packets of Bhang and Ganja and were sent to the Chemical Analyser. The said property was attached. The appellant is in jail since 27.8.1999.

3. Mr. C.R. Deshpande, learned Counsel appearing for the appellant has attacked the order of conviction and sentence of the appellant under Section 20(b)(ii) of the N.D.P.S. Act, 1985, mainly on the ground that Bhang is not a contraband article and the provisions of the N.D.P.S. Act, 1985 does not regulate the possession, sale and/or purchase etc. of Bhang. The learned Counsel for the appellant has invited my attention to Section 20 of the N.D.P.S. Act, 1985 which reads thus:

20. Punishment for contravention in relation to cannabis plant and cannabis.-

Whosoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder,-

(a) cultivates any cannabis plant; or

(b) produces, manufactures, possesses, sells purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable -

(i) Where such contravention relates to ganja or the cultivation of cannabis plant, with rigorous imprisonment for a term which may extend to five years and shall also be liable to fine which may extend to fifty thousand rupees.

(ii) Where such contravention relates to cannabis other than ganja, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees and which may extend to two lakh rupees:

Provided that the Court may, for reasons to be recorded in the judgment impose a fine exceeding two lakh rupees.

Section 20(b)(i) provides that whosoever in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder produces manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punished when the contravention relates to Ganja or cultivation of cannabis plant with R.I. for a term which may extend to five years. In so far as Section 20(b)(ii) is concerned, it provides for such contravention, when it relates to cannabis other than ganja with R.I. for a term which shall not be less than 10 years. Needless to mention that cases falling under Section 20(b)(ii) are treated to be serious offences as compared to one contained in Section 20(b)(i). Cannabis is defined in Section 2(iii) of the N.D.P.S. Act, 1985, which reads thus:

(iii) cannabis (hemp) means-

(a) charas, that is, separated resin, in whatever form, whether crude or purified; obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish;

(b) ganja, that is, the flowering or fruiting tops of the cannabis plant, (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and

(c) any mixture, with or without any natural material, of any of the above forms of cannabis or any drink prepared therefrom.

4. Perusal of the above definition of "Cannabis (hemp) would reveal that cannabis (hemp) means charas, ganja or any mixture of charas and ganja. So far as ganja is concerned, it is the flowering or fruiting tops of the cannabis plant, excluding the seeds and leaves when not accompanied by the tops, by whatever name they may be known or designated. What is relevant to note is that the Legislature has consciously excluded the seeds and leaves of cannabis plant when not accompanied by the tops. In the present case, it is not the case of the prosecution that the leaves which were seized from the appellant were accompanied by the tops. I proceed on an admitted position that what is seized from the appellant-accused are leaves of cannabis plant, viz. bhang and the question that falls for consideration is whether the leaves of cannabis plant fall within the definition of cannabis (hemp). If the leaves of cannabis plant does not fall within the definition of cannabis (hemp), then the possession and/or sale thereof would not be regulated by N.D.P.S. Act, 1985 and as such there does not arise any question of the appellant having committed offence under Section 20(b)(ii) of the N.D.P.S. Act.

5. The learned Counsel appearing for the appellant, placing reliance on the exclusion which finds place in Section 2(iii)(b) of the N.D.P.S. Act, 1985, submits that when there is a specific exclusion of the leaves of the cannabis plant from the definition of Ganja, Bhang cannot be construed to be falling within the definition of cannabis (hemp). The learned Counsel has placed reliance on the judgment of some of the High Courts to bring home his point that Bhang i.e. the leaves of cannabis plant being specifically excluded from the definition of Ganja cannot fall under cannabis (hemp) viz. Narcotic Drug. The learned Counsel invited my attention to a judgment in the case of Samid v. State 1995 All. L.J. 1108. In the said case recovery of Bhang was made from the accused and the accused was prosecuted for the commission of offence under Sections 8 and 20 of the N.D.P.S. Act. An identical question fell for consideration before the learned Judge of Allahabad High Court i.e. as to whether the possession of Bhang constitutes an offence under Section 20 of N.D.P.S. Act, 1985 or to put in other words as to whether Bhang is in any manner regulated by the provisions of the N.D.P.S. Act, 1985. As the said question was technical question, the learned Single Judge with the assistance of the learned A.G.A., had summoned responsible officer of the rank of the Assistant Director from the Narcotic Control Bureau who routinely dealt with the narcotic drugs and cases relating thereto. A report was forwarded by the said officer to the Court and in the said report, he stated thus:

So far as, the question of inclusion of Bhang under N.D.P.S. Act is concerned, it is explicit in the Act itself that Bhang is not covered under N.D.P.S. Act. Section 8 of the N.D.P.S. Act, which lays down prohibition of certain operations, prohibits the transaction in regard to 'Ganja' and not the 'Bhang. Although as defined under Section 2(xiv), Narcotic drugs, cover cannabis (hemp), but it has been explained under Section 2(iii), as under:

2(iii) "Cannabis (hemp)" means:

(a) Charas, that is the separated resin, in whatever form, whether crude or purified, obtained from the Cannabis plant and also includes concentrated preparation and resin known as Hashish oil or liquid Hashish;

(b) Ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and

(c) any mixture, with or without any neutral material of any of the above forms of cannabis or any drink prepared.

As such, it may be seen that 'Bhang' has not been covered in explicit terms, under the meaning of cannabis (hemp).

6. As it was categorically opined by a high ranking officer from Narcotics Control Bureau that Bhang is not covered within the meaning of Cannabis (hemp), the Court placing reliance on the same and on reading the definition of cannabis (hemp) came to the conclusion that Bhang is not a narcotic or psychotropic drug and as such its possession is not an offence. Taking this view of the matter, the conviction and sentence of the accused under Sections 8 and 20 of the N.D.P.S. Act was set aside. The learned Counsel thereafter placed reliance on a judgment in the case of Nirmal Chandra Sahoo v. State of Orissa 1996 (2) Crimes 22. The Orissa High Court quashed the proceedings initiated against the accused under Section 20(b) of the N.D.P.S. Act when Bhang was found to be in his possession. In the said case, though the prosecution claimed to have recovered 12 kgs. of Ganja, the Analyst Report indicated that the sample contained partly powdered cannabis leaves (Bhang) with seeds of cannabis plant, and as the expert's opinion did not support the prosecution case that what was seized was ganja, the prosecution came to be quashed. In the said case, the learned Judge of Orissa High Court held that Bhang not being a contraband article and not punishable under Section 20(b) of the Act, proceeded to quash the proceeding.

7. The next judgment relied upon by the learned Counsel for the appellant is of Rajasthan High Court in the case of Manjee v. State of Rajasthan 1997 (1) Crimes 164. In the said case, the observations made by the learned Judge and in paragraph 8 onwards being of vital importance for decision on the question involved in the instant matter the same are reproduced below:

8. For deeper understanding of the controversy involved in the present case it is pertinent to mention that Bhang cannabis plants are of two kinds known as a male and female. A female cannabis plant is called Pistillate plants whereas male plants are identified by Short Axillary Drooping Panicles. Female flowering tops quoted with resin are Ganja whereas fruiting leaves are called Bhang (see Vanoshadhi Nirdeshika (Ayurvediya Pharmacopia) written by Dr. Ram Sushil Singh published by Hindi Samiti, Suchna Vibhag, Uttar Pradesh, Lucknow.

9. According to Modi's Medical Jurisprudence and Toxicology, 21st Edition, 1988, Section II Toxicology, Chapter XXXIV page 248, 'Bhang', Siddhi, 'Patti' are cannabis Sativa consists of dried leaves and fruiting shoots whereas Ganja has rusty green colour and a characteristic odour and consists of flowering or fruiting tops of the female plant quoted with resin. According to Modi's Toxicology, Charas is concentrated resin excluding from the leaves and steins of the plant.

10. Here it is to be noticed that imports, exports, transports, manufacturers, collections, sale or possession of Bhang is punishable under Section 54 of the Rajasthan Excise Act, 1950 (hereinafter referred as 'Act No. 2 of 1950') wherein intoxicating drug has been defined under Section 3(14) of the said Act. It is also to be noticed that cultivation of any hemp plant (Cannabis Sativa) is also punishable under Section 54(b) read with Section 54(g) of Act No. 2 of 1950 with imprisonment for a term which may extend to three years and with fine which may entend to Rs. 2,000/- Section 20 of the N.D.P.S. Act also provides punishment in relation to cannabis plant and cannabis for its cultivation and for its import, export, transport, manufacturers, collection, sale or possession etc.

From the above provisions contained under the Act No. 2 of 1950 and N.D.P.S. Act give an impression that the definition of intoxicating drugs and its punishments are overlapping where one cannot be obeyed without disobeying the other.

11. 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 the 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 the N.D.P.S. Act is punishable under Section 20(a) read with Section 20(b)(i) 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) of the said Act.

The reasoning and the considered opinion expressed by the learned Judge of the Rajasthan High Court clearly goes to support the case of the appellant.

8. The next judgment relied upon by the learned Counsel for the appellant is again of Raj as than High Court in the case of Shanti Lal v. State of Rajasthan 1996 (1) Crimes 208. In the said case, the Court held that possession of Bhang without licence is not punishable under N.D.P.S. Act, 1985, but is punishable under Rajasthan Excise Act. One more judgment of Rajasthan High Court in the case of Daulat Ram @ Daulat Kumar v. State of Rajasthan 1992 Drugs Cases 395, is relied upon. In the said case as well, the learned Judge of Rajasthan High Court has held that Bhang is not a contraband article under N.D.P.S. Act, 1985, and as such possession thereof cannot result in conviction for the offence punishable under Section 20 of N.D.P.S. Act, 1985. The learned Judge, in para No. 4, observed thus:

4. From the above definitions, it could be said that for purposes of this Act, "Cannabis (hemp)" is different from "cannabis plant". Cannabis (hemp) includes Charas and Ganja but excludes the seeds, and leaves of the plant. These seeds and leaves are included in "cannabis plant". However, possession of "cannabis plant" is not included in the definition of narcotic drug. The offence in relation to cannabis plant can be said to be committed under the Act only when a person cultivates a cannabis plant. In Section 20 of the Act, where reference has been made to cannabis plant it is qualified that by word "cultivation" which means that only cultivation of cannabis plant is punishable and not possession of such plant. Offence could be said to have been committed in relation to cannabis (hemp) if some one produces, possesses, sells or uses cannabis but when it comes to "cannabis plant" only the cultivation of the cannabis plant is punishable. In the present case, the petitioner was not in possession of any item which could be said to be cannabis (hemp) because this definition excludes the seeds and leaves of the plant. He could be said to be in possession of cannabis plant as Bhang, which are leaves of the plant and have to be included in it but then possession of leaves is not punishable as only cultivation of the cannabis plant is punishable. In other words, possession, sale produce etc. of Bhang is excluded from the operation of the N.D.P.S. Act. Even in Section 27 of the Act, which provides for lessor punishment in cases where small quantity is recovered from the possession of a person, the quantities of various drugs have been prescribed but Bhang does not find place in this Section. This is so because "Bhang" has not been covered by this Act.

9. The learned Judge categorically recorded a finding that Bhang is excluded from the operation of N.D.P.S. Act. With a view to substantiate the finding that Bhang is excluded from the operation of N.D.P.S. Act, the learned Judge has also adverted to the provisions of Section 27 of the Act and noted the absence of term of Bhang in Section 27 as well which provides for lessor punishment where the small quantity is recovered from the possession of a person. The conspicuous absence of Bhang in Section 27 of the N.D.P.S. Act, is relied upon as one of the circumstance to conclude that Bhang is totally excluded from the purview of the N.D.P.S. Act, 1985. Similar is the view taken by the Rajasthan High Court in the case of Sevaram v. State of Rajasthan 1993 (1) Crimes 253, that Bhang is excluded from the operation of N.D.P.S. Act, and its possession does not constitute any offence.

10. Reading Section 2(iii) of the N.D.P.S. Act, in the light of the judgments referred to hereinabove, I have no hesitation in holding (i) that Bhang is not covered by the definition of cannabis (hemp) as it is specifically excluded from the definition of Ganja and (ii) that Bhang is not a Narcotic Drug or Psychotropic Substance, and its possession, puazrchase or sale etc. is not regulated by the provisions of the N.D.P.S. Act. Bhang not being a contraband article, its possession is not punishable under Section 20(b) of the Act. Different High Courts have consistently taken the view that Bhang is excluded from the operation of N.D.P.S. Act and its possession cannot result in conviction under any of the provisions of the N.D.P.S. Act. As against the above consistent view expressed by various High Courts, there is not even one judgment brought to my notice taking a contrary view in the matter. If this be so, the possession of Bhang with the present appellant cannot entail in the appellant's conviction under Section 20 of N.D.P.S. Act or for that matter under any of the provisions of N.D.P.S. Act. Insofar as conviction of the appellant under Section 20(b)(i) of the N.D.P.S. Act, is concerned, it relates to possession by the accused of Ganja which is obviously a contraband article.

11. In the result, the appeal is partly allowed. The judgment and order of conviction and sentence passed by the learned Sessions Judge, Ahmednagar, in Sessions Case No. 88 of 1998, dated 27.8.1999 directing the appellant to suffer R.I. for three years and fine of Rs. 5,000/- in default to suffer R.I. for two months, for offence punishable under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 is hereby affirmed. As far as the conviction and sentence imposed by the learned Sessions Judge, Ahmednagar, on the appellant for offence punishable under Section 20(b)(ii) directing the appellant to suffer R.I. for 10 years and to pay a fine of Rs. 1,00,000/- in default to suffer R.I. for one year, is hereby quashed and set aside. The appellant be set at liberty after he serves the sentence for offence punishable under Section 20(b)(i) of the Act, if not required in any other offence. Fine, if paid, for offence punishable under Section 20(b)(ii) of the N.D.P.S. Act, be refunded to the appellant