The legal point established is the interpretation of the Abkari Act and the NDPS Act, specifically regarding the definitions of 'intoxicating drug' and 'ganja', and the implications of the notifications issued by the State Government under the NDPS Act.

Headnote:
conflict of views - Abkari Act - sec.55(a), sec.3, sec.8, sec.81, sec.36A(1)(d), sec.20(b)(i), sec.58 - The court discussed the conflict of views in the interpretation of the Abkari Act and the Narcotic Drugs and Psychotropic Substances Act, 1985. It highlighted the definitions of 'intoxicating drug' and 'ganja' under the Abkari Act and the NDPS Act, and the implications of the notifications issued by the State Government under the NDPS Act. The court clarified the legal position and disapproved the view that there is a total repeal of the Abkari Act in relation to ganja by the NDPS Act, and approved the observations in Sivadasan’s case reflecting the correct legal position.
Fact of the Case:

The petitioner, a lady, was found in possession of 1200 grams of ganja and was charged under sec.55(a) of the Abkari Act. The prosecution's case was based on the detection by the Excise Circle Inspector and his party, the seizure of ganja, and the chemical analysis confirming the substance as genuine ganja. The independent witnesses turned hostile, and the accused denied the incriminating circumstances.
Finding of the Court:

The court found the accused guilty of the offence punishable under sec.55(a) of the Abkari Act, based on the testimony of the detecting officer and the chemical analysis report. The court dismissed the contentions raised by the accused and upheld the conviction, but modified the sentence to the statutory minimum due to the passage of time and the age of the petitioner.
Issues: The issues involved the reliability of the chemical analysis, compliance with sec.53 of the Abkari Act, the production of the accused and the properties, the testimony of the independent witnesses, and the applicability of sec.58 of the Abkari Act.
Ratio Decidendi: The court relied on the expertise of the detecting officers in identifying ganja, the compliance with sec.53 of the Abkari Act, the admissibility of the evidence of the detecting officer despite the hostile witnesses, and the distinction between sec.55(a) and sec.58 of the Abkari Act.
Final Decision: The court confirmed the conviction but modified the sentence to the statutory minimum, considering the age of the petitioner and the passage of time.

Judgment :-

Ramkumar, J.

This revision has come up before us upon a reference by a learned Single Judge (Sri Sasidharan Nambiar, J.) who was of the opinion that there is an apparent conflict of views in the decisions reported in 1995 (2) KLT 873 – State of Kerala v. Thomas and 1998 (2) KLJ 613 – State of kerala v. Manoharan and others on the one hand and the decision reported in 2003 (3) KLT 100 = ILR 2003 (2) Ker. 480 Sivadasan v. State, on the other.

2. We heard Mr. Sojan, the learned counsel for the petitioners, and Mr. Sujith Mathew Jose, the learned Public Prosecutor.

CONSIDERATION OF THE JUDICIAL CONFLICT

3. Before going into the facts of this case we would endeavour to see whether there is any conflict in the decisions referred to above and, if so, which of the decisions lays down the correct law.

4. According to the prosecution the revision petitioner, who is a lady, was found in possession of 1200 grams of ganja on 2.11.1987 and she had, therefore, committed an offence punishable under sec.55(a) of the Abkari Act. The ganja seized in this case, as revealed by Ext.P2 report of chemical analysis, bears the following description:

“partially crushed dried green leafy material margins having plamately compound leaves with toothed with inconspicuous flowers with dried fruits having characteristics of Ganja.”

Going by the above description it is clear that the ganja seized in this case was not accompanied by the fruiting tops and flowering tops of the cannabis plant, and indeed, there is no such contention either, to the contrary.

5. The Abkari Act (Act of 1077 M.E.) is the State legislation on intoxicating liquor and drugs that was in force when the Narcotic drugs and Psychotropic substances Act, 1985 (“the N.D.P.S. Act” for short) came into force in the whole of India on 14.11.1985. Sec.55(a) of the Abkari Act inter alia makes possession of an “intoxicating drug” punishable. At the relevant time the punishment provided for such possession was imprisonment for a term extending upto 2 years and with fine extending upto Rs.5000/- with a proviso thereto prescribing a minimum mandatory punishment of imprisonment as well as fine for the fist offence and a similar minimum mandatory punishment for subsequent offences unless the Magistrate found special reasons to impose a punishment below the mandatory minimum. Clause 14 of sec.3 of the Abkari Act as it stood on the date of commission of the offence in this case, read as follows:-

“ ‘Intoxicating drug’ 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 neutral materials, of any of the above forms of intoxicating drug, or any drink prepared therefrom; and

(iv) any other narcotic substance which the Government may, by notification, declare to be an intoxicating drug, such substance not being opium, coca leaf, or a manufactured drug, as defined in S.2 of the Dangerous Drugs Act, 1930:.

6. When it comes to the N.D.P.S. Act, “ganja” falls under the definition of “cannabis” which in turn is a component of the term “narcotic drug” as defined under S.2(xiv) of the N.D.P.S. Act. S.2(iii) (b) of the N.D.P.S. Act defines “ganja” as follows:-

“Ganja, that is, 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.:

Thus, it is significant to note that the definition of “ganja” under the NDPS Act takes is only the flowering fruiting tops of the cannabis plant excluding the seeds and leaves when not accompanied by the tops. In contra distinction to this definition, the definition of intoxicating drug” in the Abkari act is a wider definition which takes in all parts of the cannabis pl

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