G. S. N. TRIPATHI, J. 3rd Additional Sessions Judge, Ballia, vide his judgment and order dated 31-10-1994, passed in S. T. No. 152 of 79, Stale v. Samit, convicted the accused Samid on a charge under Section 8/20, NDPS Act and sentenced him to undergo 10 years R. I. and pay a one of its. one lakh. On failure to pay the fine, six months additional R. L was awarded. Further he convicted the accused on a charge under Section 60, Excise Ace and sentenced him to undergo 6 months R. I. 2. According to the prosecution, on 5-4-1986 at about 17. 30 p. m. , police party recovered 25 Kgs. of Bhang and two bottles Kachchi Sarab (Alcohol) for which the accused had no licence. 3. After usual investigation, a charge-sheet was laid against the accused. 4. The prosecution examined PW 1 Constable Brijesh Narain Singh, who has deposed that he along with S. I. , S. B. Singh was on a patrol duty. This party saw the accused moving on a cycle carrying some items. The S. O. accosted him. But he tried to run. However, he was over-powered and his search was taken. 25 Kgs. of Bhang, which he was carrying along with two bottles of Mahua Sarab were recovered and sealed. Public witnesses despite request, declined to be witnesses of recovery and documents. 5. PW 2 Constable Pradip Kumar Singh has made similar statement. 6. PW 3 Head Constable Sakal Narain Yadav has proved the entries in the chik and G. D. 7. PW 4 Sher Bahadur Singh has investigated the case and has proved the documents in that process. Part of the investigation was done by S. I Vijay Narain Mishra, PW 5. 8. The accused in his statement under Section 313, Cr PC has denied the allegations against him and has said that on account of enmity, he has been falsely implicated. 9. The accused ha led no evidence in defence. 10. After perusal of the entire evidence and circumstances on the record, the learned lower court convicted the accused and sentenced him as noted above. 11. Feeling aggrieved, the accused has preferred this appeal. 12. I have heard learned counsel for the parties and gone through the record. I find that there is substantial force in this appeal and it deserves to be allowed to that extent. 13. 11. Feeling aggrieved, the accused has preferred this appeal. 12. I have heard learned counsel for the parties and gone through the record. I find that there is substantial force in this appeal and it deserves to be allowed to that extent. 13. The first point raised by the learned counsel in that Bhang is not a narcotic or psychotropic drug and it is not punishable under the NDPS Act. 14. As it was a technical question, the court ordered the learned AGA to summon some officer dealing with the narcotic drugs and cases relating thereto. The learned AGA has produced a letter dated 25-1- 1995 signed by Sri O. P. S. Rana, Assistant Director, Narcotics Control Bureau, Varanasi. The relevant portion of the letter is reproduced as under :- "so far as the question of inclusion of Bhang under NDPS Act is con cerned, it is explicit in the Act itself that Bhang is not covered under NDPS Act. Section 8 of NDPS Act which lays down prohibition of certain operations, prohibits the transaction in regard to Ganja and not the bhang. Although as denned 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 prepara tion 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 there from ;. As such, it may be seen that bhang has not been covered in explicit terms under the meaning of cannabis (hemp ). " 15. This letter forms part of the record of this appeal. The result of this admission is that the Bhang is not a narcotic or psychotropic drug. Hence its possession is not an offence. The result is that in view of the admitted position, the conviction and sentence of the accused on the charge under Section 8/20 NDPS Act deserves to be set aside. It is accordingly set aside. 16. The result of this admission is that the Bhang is not a narcotic or psychotropic drug. Hence its possession is not an offence. The result is that in view of the admitted position, the conviction and sentence of the accused on the charge under Section 8/20 NDPS Act deserves to be set aside. It is accordingly set aside. 16. Now the question of offence under Section 60, Excise Act crops up. The learned counsel Sri G. D. Dixit candidly admitted that the prosecution has successfully proved this charge. Apart from this admission, I have perused the statement of the two witnesses PW 1 and PW 2 and carefully scanned their evidence. I find that on the point of recovery of two bottles of Deshi Sarab, their statement have gone unscathed. The learned lower court had drawn a correct conclusion. Therefore, 1 ditto the findings arrived at by the learned lower court. 17. The result is that the recovery of two bottles of Deshi Sarab is established, for which the accused had, admittedly, no licence. Therefore, the charge under Section 60, Excise Act is established. 18. Now the question of sentence crops up. This appear to be the first crime of this type committed by this accused. He is in Jail, admittedly, since the date of conviction i. e. 31-10-1994. So he has already suffered from more than 3 months of sentences. Therefore, his sentence deserves to be modified to the period already undergone by the accused. 19. The appeal is substantially allowed. The conviction and sentence on the charge under Section 8/20 NDPS Act is set aside. 20. The conviction under Section 60, Excise Act is upheld However, his sentence is modified and restricted to the period already undergone by the accused. The accused is in jail. Ha shall be released forth with unless required in some other case. Appeal partly allowed. .