The absence of a notification under S. 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985 does not necessarily absolve the accused of the offence under S. 20, as the cultivation of cannabis plant could be for the production of highly intoxicating and toxic materials beyond ganja.

BALAKRISHNA MENON, J.

The petitioners in these cases invoked S. 482 of the Code of Criminal Procedure to quash the proceedings in C.C. Nos. 20/1988, 123/1987 and 10/1988 respectively on the file of the Judicial First Class Magistrate's Court, Adimali. The Magistrate has taken cognizance of an offence punishable under S. 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Central Act 61 of 1985) (hereinafter referred to as Act) against each of these petitioners on the basis of the final report submitted by the police after investigation.

2. The charge-sheets submitted by the Investigating Officer in CC Nos. 20/1988 and 10/1988 show that the respective accused had in contravention of the provisions of the Act cultivated cannabis plant, thereby committing an offence punishable under S. 20 of the Act. The charge sheet in C.C. No. 123/1987 discloses also an offence under S. 55(c) of the Abkari Act (Act 1 of 1077).

3. These cases have been referred for decision by a Division Bench, as Sreedharan, J. doubted the correctness of the decision of a learned single Judge of this court in Crl.M.C. No. 944 of 1987. The learned single Judge had in the said case quashed the proceedings of the Magistrate initiated under the Act for the reason that in the absence of a notification under S. 8 of the Act, there is no offence in cultivating cannabis plant. The learned single Judge assumes that cultivation of cannabis plant is only for the purpose of production of ganja and in the absence of the notification referred to in the proviso to S. 8, the prohibition against the cultivation of cannabis plant does not take effect. S. 20 of the Act reads :

"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 uses 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 lakh rupees :

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees."

4. The cultivation of cannabis plant will be an offence under S. 20 of the Act, if it is done in contravention of any provision of the Act or any Rule or Order made or condition of licence granted thereunder.

5. The learned single Judge in Crl.M.C. No. 944 of 1987 has relied on the proviso to S. 8 the Act in taking the view that no offence is committed under S. 20 of the Act unless there is a notification issued by the Central Government in terms of the proviso. S. 8 of the Act reads:

"8. Prohibition of certain operations. - No person shall -

(a) cultivate any coca plant or gather any portion of coca plaint; or

(b) cultivate the opium poppy or any cannabis plant; or

(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State export inter-State, import into India, export from India or transship any narcotic drug or psychotropic substance,

except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation :

Provided that, and subject to t