Bhang, ganja, & criminality in the NDPS Act

In news– Recently, the Karnataka High Court has granted bail to a man accused of possessing Bhang, holding that Bhang is not covered under the Narcotics Drugs and Psychotropic Substances(NDPS) Act.

What did the Court say?

The Court has observed that nowhere in the NDPS Act is bhang referred to as a prohibited drink or prohibited drug.
The single judge Bench relied on two earlier judgments, Madhukar vs the State of Maharashtra, 2002 and Arjun Singh vs State of Haryana, 2004, where the courts had ruled that bhang is not ganja, and is therefore not covered under the NDPS Act.

What is bhang?

Bhang is the edible preparation made from the leaves of the cannabis plant, often incorporated into drinks such as thandai and lassi, along with various foods.
Bhang has been consumed in the Indian subcontinent for centuries, and is frequently consumed during the festivals of Holi and Mahashivratri.
Bhang is the least potent of the cannabis preparations used in India. It does not contain the flowering tops found in ghanja.
As a result, bhang contains only a small amount of resin (5 percent). It is either drunk or smoked.

NDPS Act & Bhang –

Enacted in 1985, the NDPS Act is the main legislation that deals with drugs and their trafficking.
Various provisions of the Act punish production, manufacture, sale, possession, consumption, purchase, transport, and use of banned drugs, except for medical and scientific purposes.
The NDPS Act defines cannabis (hemp) as a narcotic drug based on the parts of the plant that come under its purview. The Act lists these parts as:
- Charas: “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.”
- Ganja: “The flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they be known or designated.”
- “Any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom.”
The Act, in its definition, excludes seeds and leaves “when not accompanied by the tops”. Bhang, which is made with the leaves of the plant, is not mentioned in the NDPS Act.
As a “special provision”, the Act states that the government “may allow cultivation of any cannabis plant for industrial purposes only of obtaining fibre or seed or for horticultural purposes”.
Section 20 of the NDPS Act lays out the punishment for the production, manufacture, sale, purchase, import and inter-state export of cannabis, as defined in the Act. The prescribed punishment is based on the amount of drugs seized.
Contravention that involves a small quantity (100 g of charas/hashish or 1 kg of ganja), will result in rigorous imprisonment for a term that may extend to one year and/or a fine which may extend to Rs 10,000.
For a commercial quantity (1 kg charas/ hashish or 20 kg ganja), rigorous imprisonment of not less than 10 years, which may extend to 20 years, including a fine that is not less than Rs 1,00,000 but may extend to Rs 2,00,000.
Where the contravention involves quantity less than commercial, but greater than small quantity, rigorous imprisonment up to 10 years is prescribed, along with a fine which may extend to Rs 1,00,000.