Honble N.K. JAIN, J.—This appeal u/s. 374 Cr.P.C. is directed against the judgment dt. 9.6.92 passed by the learned Addl. Sessions Judge, Nagaur Camp Dcedwana whereby he has convicted the accused-appellant u/s. 8/20 of the N.D.P.S. Act and sentenced him to 10 years R.l. with a fine of rupees one lakh and in default of payment of fine to further undergo 2 years R.I. 2. Briefly stated the facts of the case are that a first information report was registered on 50.9.91 by Petrolling Officer of Custom Department against the accused appellant alleging that on 29.9.91 when he was petrolling with his team in the cattle fair, Deedwana the appellant afraid of them and on search in a plastic bag 2 tolas of Bhang was recovered from him and thereafter from village Nimod about 750 gms. of dry leaves of Bhang were recovered. A sample of 30 grams of Bhang was sent for chemical examination and on examination it was found to be Bhang. A challan was filed against the accused appellant u/s. 8/20 of the NDPS Act, 1985 in the court of Munsif and Judicial Magistrate, 1st Class, Deedwana who committed the case to the court of Addl. Sessions Judge, Nagaur. Charge was framed against the appellant u/s 8/20 of the N.D.P.S. Act, the appellant confessed the offence and submitted that he does not want to fight the case. After conclusion of the trial, the learned Addl. Sessions Judge found him guilty for the offence and convicted and sentenced him as aforesaid. 3. Mr. Purohit, learned counsel for the appellant submits that the learned Addl. Sessions Judge has erred in convicting the accused appellant as the alleged Bhang recovered from him does not fall under the NDPS Act. He also submits that there are several contradictions in the investigation. He has placed reliance on Daulat Ram Vs. State of Raj. (1). 4. Mr. Panwar, learned Public Prosecutor has supported the judgment and submits that the appellant has been rightly convicted and sentenced. 5. I have heard learned counsel for the parties and perused the impugned judgment as well as the relevant provisions of the Act and Rules and the case cited by the counsel for the appellant carefully. 6. (1). 4. Mr. Panwar, learned Public Prosecutor has supported the judgment and submits that the appellant has been rightly convicted and sentenced. 5. I have heard learned counsel for the parties and perused the impugned judgment as well as the relevant provisions of the Act and Rules and the case cited by the counsel for the appellant carefully. 6. For the just decision of the controversy raised by the counsel for the appellant, it would be proper to read relevant sections of the NDPS Act, 1985 & Rule 24 of the Rajasthan Narcotic Drugs and Psychotropic Substances Rules, 1985: Sec. 8 Prohibition of certain operations, no person shall: (a) Cultivate any coca plant or gather any portion of coca plant; or:- (b) Cultivate the opium poppy or any cannabis plant; or (c) ............" Sec. 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 accempanied by the tops) by whatever name they may be known or designed; and (c) any mixture, with or without any natural material, of any of the above forms of cannabis or any drink prepared therefrom; Sec. 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, transport, imports inter-state exports, inter State or use 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 lakhs rupees; Provided that the court may, for reasons to be recorded in th« judgment, impose a fine exceeding two lakh rupees." Rule 24-No personal 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, pr for sale under provisions of the Rajasthan Excise Act." 7. A perusal of the aforesaid sections show that "Cannabis (hemp)" and cannabis plant are two different thing?. Ganja and Charas falls under Cannabis (hemp). The seeds and leaves when not accompanied by the tops are excluded from "Cannabis (hemp)" but they are included in "cannabis plant" A person can only be convicted in relation to "Cannabis plant" when he cultivates a cannabis plant. 8. Now in the light of aforesaid provisions it is to be seen whether the convietion of the appellant u/s. 8/20 of the NDPS ACT can be up-held or not. 9. In the instant case, as stated above as per the case of prosecution from the appellant 2 tolas of Bhang (Sukhi Patti) and later on from village 750 gms. dry leaves of Bhang were recovered. According to Sec. 2 (iii) of the NDPS Act the alleged Bhang and dry leaves recovered from the appellant can besaidtobe a cannabis plantand if the case of the prosecution is accepted and as such then also the conviction of the appellant u/s. 8/20 is not sustainable for the simple reason, that the Legislature in its wisdom has excluded the seeds and leaves when not accompanied by tops from the purview of N.D.P.S. Act. However, flowering and fruiting tops have been included in the N.D.P.S. Act. Moreso, the prosecution has not come out with a case that the appellant was cultivating cannabis plant and the only case against the appellant is that dry leaves of the cannabis plant were recovered which has already been excluded in view of this, the conviction of the appellant u/s. 8/20 is not sustainable in the present case. The same view has been expressed in Daulat Ram Vs. State (supra). That apart, the appellant is 70 years old and he has stated that he is suffering from piles. He has also admitted that he was taking Bhang(Sukhi Patti) as medicine for his personal use for the last 20 years and prosecution has not placed any material otherwise on record. State (supra). That apart, the appellant is 70 years old and he has stated that he is suffering from piles. He has also admitted that he was taking Bhang(Sukhi Patti) as medicine for his personal use for the last 20 years and prosecution has not placed any material otherwise on record. On this count also, the appellant cannot be convicted as fee was addict to Bhang (Sukhi Patti) which has already been excluded from the purview of the NDPS Act as stated above and further if a person keeps Bhang i.e. leaves of cannabis plant for his personal use, then also he cannot be held guilty in view of Rule 24 of the Rajasthan Narcotic Drugs and Psychotropic Substances Rules, 1985. 10. Under the facts and circumstances of this case and in view of the above discussion, the learned Addl. Sessions Judge has erred in convicting the accused appellant for the offence u/s. 8/20 of the N.D.P.S. Act and the convictien of the appellant, therefore, deserves to be quashed. 11. In the result, the appeal filed by Sevaram is allowed. The conviction of the appellant u/s. 8/20 is quashed. The appellant is in jail. He shall be released forthwith if not required in any other case.