JUDGMENT 1. - The petitioner has challenged the order dated 27-7-87 passed by the Additional Sessions Judge No. 5. Jaipur City, Jaipur framing charge against the accused under Section 20 of the NDPS Act, 1985. According to him the case against him fells under Section 16/54 of the Rajasthan Excise Act and not under the NDPS Act. 2. The Excise Inspector searched the house of the petitioner on 24th Sept. 1987 and found one kilogram Bhang in a bag. This was in paste form and a machine for making paste of Bhang was also recovered from the site. After investigation, a challan was presented under Section 16/54 of the Rajasthan Excise Act. The Magistrate taking cognizance was of the opinion that the offence of the petitioner falls under Section 20 of the NDPS Act. Therefore, he committed the accused to stand trial before the Sessions Judge. Thereafter the Addl. Sessions Judge framed charge as stated above. 3. The relevant provision in this regard may be first looked into. Section 2(iii) of the NDPS Act defines `cannabis (hemp)' as under:- (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 natural material, of any of the above forms of cannabis or any drink prepared therefrom; Cannabis plant is defined under Section 2 (iv) as under:- 2 (iv) "cannabis plant" means any plant of the genus cannabis; Section 20 of the NDPS Act prescribes punishment for contravention in relation to cannabis plant and cannabis, which reads as under:- 20. Punishment for contravention in relation to cannabis plant and cannabis:- Whoever, 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 use cannabis, shall be punishable - (i) Where such contravention relates to ganja or the cultivation of cannot is 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. 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 by the 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. 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 NDPS Act. Even in Section 27 of the Act, which provides for lesser 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. 5. The learned counsel for the petitioner has brought to my notice Rule 24 of the Rajasthan Narcotic Drugs and Psychotropic Substances Rules, 1985, which is as under:- 24. No person shall keep or carry or move or cause to be carried or moved or import or export or indulge in inter district trade of "cannabis (hemp)" or "Medical Cannabis (hemp)". Provided that nothing in this rule shall apply to Bhang i.e. leaves of the cannabis plant for personal use, or for sale under provisions of the Rajasthan Excise Act. This makes it further clear that Bhang i.e. leaves of cannabis plant have not been included in cannabis (hemp) or Medical cannabis (hemp). 6. The contention of the learned counsel for the petitioner that the offence in the present case falls under the Rajasthan Excise Act and not under the NDPS Act is further supported by Sec. 3(4) of the Rajasthan Excise Act which defines excisable articles and one of the drug included in the definition is intoxicating drug Intoxicating drug has been defined in sub-clause (14) of Section 3 of the Act and Bhang has been included in this definition. The Rajasthan Excise Act and Rules provide for a licence for sale of Bhang and under Section 5 of the Rajasthan Excise Act, the limit of 200 grams has been placed on the quantity, which shall be limit for sale by a retailer. 7. The Rajasthan Excise Act and Rules provide for a licence for sale of Bhang and under Section 5 of the Rajasthan Excise Act, the limit of 200 grams has been placed on the quantity, which shall be limit for sale by a retailer. 7. It can be said that Bhang is prepared from the leaves of cannabis plant and as far as the cannabis plant is concerned, only the cultivation of the same is punishable, while seeds and leaves when not accompanied by tops are not included in cannabis (hemp). Hence, the article recovered from the petitioner cannot be said to be covered by the definition of cannabis (hemp). When the case is not one of cultivating cannabis plant and the part of the plant found with him is not included in cannabis (hamp), then the offence which the petitioner may have committed does not fall within the NDPS Act and it would fall under the Rajasthan Excise Act. 8. Hence, the framing of charge under Section 20 of the NDPS Act cannot be said to be proper. The petitioner could be tried for the offence under Sec. 16/54 of the Rajasthan Excise Act. It may be mentioned that these observations would not amount to saying that the petitioner is guilty of the offence under Section 16/54 of the Rajasthan Excise Act. He has to be tried for this offence and he will be free to raise pleas available to him in order to show that he has not committed any offence. 9. Accordingly, this petition is accepted and the charge framed under Section 20 of the NDPS Act is quashed and the Additional Sessions Judge No. 5, Jaipur City, Jaipur is directed to take steps for trying the petitioner for the offence under Section 16/54 of the Rajasthan Excise Act. 10. Learned counsel for the petitioner states that the next date before the Sessions Court is September 18th, 1990 hence, the petitioner will appeal before the court on this date. *******