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2002 DIGILAW 596 (PNJ)

Gurdial Singh v. State Of Punjab

2002-05-28

R.C.KATHURIA

body2002
Judgment R.C.Kathuria, J. 1. The petitioner-accused seeks bail in case bearing FIR No. 236 dated 21.9.2001 registered under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act) with Police Station Haibowal, Ludhiana. 2. The prosecution allegations are that on 21.9.2001 at about 5.00 p.m., ASI Hira Singh along with other police officials was present at T-Point, Partap Singh Wala in connection with Nakabandi. At that time he received a secret information to the effect that Gurdial Singh, petitioner-accused, resident of House No. 11028, Prince Property Street, Ranjodh Park, Sabji Mandi, Haibowal Khurd was serving the general public a mixture of Bhang (Cannabis) @ Rs. 5/- per tumbler and was thus making them addicts. Finding this information to be credible, a report was sent to Police Station for registration of the case. Thereafter, the Investigating Officer raided the accused and recovered 3 gunny bags containing 60 kgs. of Bhang from his possession. Half kg. of mixture of Bhang (solution of Bhang and water) was also recovered. After completion of necessary investigation challan has been put in Court. 3. Counsel for the petitioner, while pressing for his bail has made two fold submissions before me. Firstly that possession of leaves of Cannabis plants (Bhang) without top is not an offence under Section 20 of the Act. In support of the stand taken reliance was placed by him on Samid v. State of Uttar Pradesh, 1995(3) RCR(Crl.) 449 and Manjee v. State of Rajasthan, 1996(2) RCR(Crl.) 258. Secondly, that mandatory provisions regarding search and seizure have not been complied with. 4. Opposing the submissions made, it has been urged by the State counsel that the recovery of Bhang has to be construed as Cannabis (Hemp) in terms of the definition contained in Section 2(iii) of the Act and thus would fall within the ambit of Section 20 of the Act and the recovery made is more than the commercial quantity in terms of items No. 3 of the table contained in the notification dated 19.10.2001 issued by the Central Government and as such limitation laid down in Section 37 of the Act would apply and as such the petitioner cannot claim the concession of bail. 5. 5. In order to appreciate the submissions made, it would be appropriate to notice the provisions of Section 2(iii) of the Act which read 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 therefrom." Item No. 23 of table issued under notification bearing No. S.O. 1055(E) dated 19.10.2001 issued by the Central Government reads as under :- Sl. No. Name of Narcotic and Psychotropic Substance (International non- proprietary name (INN) Other non-properiety Name Chemical Name Small Quantity (in gm.) Commercial Quantity (in gm./kg.) 1. 2. 3. 4. 5. 6., xx xx xx xx xx xx 23. Cannabis and cannabis resin CHARAS HASHISH EXTRACTS and TINCTURES OF CANNABIS 100 xx xx xx xx xx xx 6. It would be noticed from the above provisions that `Bhang has not been covered expressly under the meaning of the Cannabis (hemp). Section 2(xiv) of the Act also defines "Nacrotic Drug" means coca leaf, cannabis (hemp), opium poppy straw and includes all manufactured drugs. These provisions only limits the definition of `narcotic drug to cannabis (hemp) but does not expressly includes `Bhag. The net consequence would be that Bhang cannot be construed a narcotic or even psychotropic drug in terms of the above stated provisions. The same conclusion was drawn in Samid v. State of Uttar Pradesh (supra). In that case the police has sought the prosecution as 25 kg. of Bhang was recovered from the accused who was also found in possession of two bottles of Kachi Sarab (Alcohol). On the basis of above recovery, the trial Court convicted the accused. The same conclusion was drawn in Samid v. State of Uttar Pradesh (supra). In that case the police has sought the prosecution as 25 kg. of Bhang was recovered from the accused who was also found in possession of two bottles of Kachi Sarab (Alcohol). On the basis of above recovery, the trial Court convicted the accused. The appeal preferred by the accused was accepted and taking into account the above provisions it was held that the charges framed against the petitioner under Sections 8 and 20 of the Act were misconceived as possession of Bhang would not amount to offence and consequently his conviction and sentence was set aside and he was acquitted. At the same time, the Court took notice of the fact that recovery of Bhang so made was covered under Section 60 of the Excise Act and as he had already suffered sentence of more than three months, the sentence was modified to the period already undergone by him while upholding the conviction under Section 60 of the Excise Act. 7. In Manjee v. State of Rajasthan (supra), the charge was only with regard to Sections 8 read with Section 20 of the Act relating to the cultivation of cannabis plants of Ganja which was held to be punishable under the Act though it was not included within the definition of cannabis (hemp). At the same time, it was also observed that import, export, transport, manufacture, collection, sale or possession of Bhang was punishable under Section 55 of the Rajasthan Excise Act, 1950 but not under the Act. As the question of possession and sale of Bhang was not involved, the same was left to be decided in an appropriate case. The judgment in question also contains useful discussion with regard to the cannabis (hemp) and cannabis plants in relation to Charas and Ganja so defined in Section 2(iii) of the Act. It would be appropriate to notice the discussion contained in paras 4 to 14 of the Act which read as under :- "4. It is true that Cannabis plant and Cannabis (Hemp) are two different contraband under N.D.P.S. Act. Cannabis (Hemp) is defined under Section 2(iii) of the said Act which induces (includes ?) Charas and Ganja and also any mixture with or without any natural material of any of the above forms of Cannabis or any drink prepared therefrom. 5. It is true that Cannabis plant and Cannabis (Hemp) are two different contraband under N.D.P.S. Act. Cannabis (Hemp) is defined under Section 2(iii) of the said Act which induces (includes ?) Charas and Ganja and also any mixture with or without any natural material of any of the above forms of Cannabis or any drink prepared therefrom. 5. Charas is defined under Section 2(iii)(a) of the N.D.P.S. Act which means 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. 6. Under Section 2(iii)(b) of the N.D.P.S. Act Ganja is also defined according to which Ganja is flowering or fruiting tops of the Cannabis plant (excluding seeds and leaves when not accompanied by the tops) by whatever name they may be known or designated. 7. Cannabis plant is defined under Section 2(iv) of the N.D.P.S. Act which means any plant of genus Cannabis. 8. It is easily deducible from the aforesaid definitions that Charas popularly known as Hashish is separated resin obtained from Cannabis plant (Hemp) either from its natural discharge of resin through its pores or by its incisions by human hands. Thus Charas is not a Cannabis plant but it is resin obtained from it whereas Ganja is the flowering or fruiting tops of the Cannabis plant excluding the seeds and leaves when not accompanied by tops. 9. For deeper understanding of the controversy involved in the present case it is pertinent to mention that Bhang Cannabis plant are of two kinds known as male and female. A female Cannabis plant is called PISTILLATE plants whereas male plants are identified by SHORT AXILLARY DROPPING PANICLES. Female flowering tops quoted with resin are Ganja whereas fruiting leaves are called Bhang (see VANOSHADHI NIRDESHIKA (AYURVEDIYA PHARMACOPIA) written by Dr. Ram by Dr. Sushil Singh published by Hindi Samiti, Suchna Vibhag, Uttar Pradesh, Lucknow. 10. According to Modis 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 Modis toxicology, Charas is concentrated resin excluding from the leaves and stems of the plant. 11. According to Modis toxicology, Charas is concentrated resin excluding from the leaves and stems of the plant. 11. Here it is to be noticed that imports, exports, transports, manufactures, 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 extend 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, manufacture, collection, sale or possession etc. 12. 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. 13. 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 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 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. 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)(i) of the said Act. 14. In my considered opinion cultivation of `Bhang is punishable under N.D.P.S. Act although it is not included within the definition of cannabis (Hemp) and not under Act No. 2 of 1950 within the meaning of Article 254 of the Constitution of India. As regards cultivation of Bhang is concerned, the N.D.P.S. Act would prevail over Act No. 2 of 1950 and latter enactment passed by the Legislature of State shall be deemed to be repugnant and void to the extent of its inconsistency to the former enactment passed by Parliament." 8. So far State of Punjab is concerned, Section 3(13) of the Punjab Excise Act, 1914 , defines "intoxicating drugs" as under :- "13. "intoxicating drugs" means :- (i) the leaves; small stalks and flowering or fruiting tops of the Indian hemp plant (Cannabis Sativa-L) including all forms known as bhang, sidhi or ganja; (ii) charas, that is, the resin obtained from the Indian hemp plant, which has not been submitted to any manipulations other than those necessary for packing and transport; (iii) any mixture, with or without natural materials, of any of the above forms of intoxicating drug or any drink prepared therefrom; and (iv) any other intoxicating or narcotic substance which the State Government may by notification, declare to be an intoxicating drug, such substance not being opium coca leaf, or a manufactured drug, as defined in Section 2 of the Dangerous Drugs Act, 1930". 9. Turning to the facts of the present case, it is admitted case of the prosecution that 3 gunny bags containing 60 kgs. of Bhang were recovered from the accused. 9. Turning to the facts of the present case, it is admitted case of the prosecution that 3 gunny bags containing 60 kgs. of Bhang were recovered from the accused. The learned Special Judge, Ludhiana as per order dated 5.10.2001 while rejecting the bail application of the petitioner has observed as under :- "It is true that as per the definition of "cannabis" as given in Section (iii) of the N.D. and P.S. Act, leaves of the Bhang plant are not covered therein and ordinarily simple possession of leaves is not an offence. Yet as already observed there is nothing to suggest that the material recovered from the accused does not include the tops of the Bhang plant." 10. At the time when bail application of the petitioner was decided, report of the Chemical Examiner was not taken into consideration. Report dated 19.2.2002 has been placed on record of this case. As per report of the Assistant Chemical Examiner, Government of Punjab, Patiala, after analysing the samples of Bhang sent to it, he had formed an opinion that the contents of both the samples were Bhang. Therefore, there is no manner of doubt that contents of the recovered three bags were factually Bhang and nothing else. As the leaves of Bhang as such are not within the definition of cannabis (hemp) contained in Section 2(iii) of the Act, the provision of Section 20 of the Act would not apply to the recovery made. However, this recovery would be in violation of Section 3(13) of the Punjab Excise Act, 1914 punishable under Section 61 of the Excise Act. Keeping in view the aforesaid circumstances on record, I accept the application and order that the petitioner shall be admitted and order that the petitioner shall be admitted to bail on his furnishing bail bond and surety bond to the satisfaction of the Chief Judicial Magistrate/trial Judge, Ludhiana.