The central legal point established in the judgment is that the possession of bhang does not constitute an offence punishable under the Narcotic Drugs and Psychotropic Substances Act, 1985.

Satish Kumar Mittal, J.

1. Arjun Singh accused has filed this appeal against the judgment dated 27-7-2002 passed by the Additional Sessions Judge, Rohtak, vide which he has been convicted under Section 20-B of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. one lac.

2. As per the prosecution version, 15/2 kgs. of hemp (bhang) was recovered from the possession of the appellant when he was travelling in a train. For that recovery, the appellant was charged for the offence punishable under Section 20-B of the Act and after the trial, he was punished under the aforesaid Section.

3. Counsel for the appellant at the very outset raised the contention that the hemp (bhang) is not a narcotic or psychotropic drug as defined under the Act and hence its possession is not an offence. He submitted that cannabis plant and cannabis hemp are two different contrabands under the Act. Cannabis (hemp) has been defined under Section 2(iii) of the Act which includes Charas, Ganja and also any mixture, with or without any neutral material of any of the above forms of cannabis or any drink prepared. He submitted that according to the definition of Ganja given in clause (b) of Section 2(iii) of the Act, Ganja is the flowering or fruiting tops of the cannabis plant which excludes the seeds and leaves when not accompanied by the tops. He submitted that the bhang is the leaves of the cannabis plant and it has not been included in the definition of cannabis (hemp) as defined under Section 2(iii) of the Act. He further submitted that in the Act, the possession of the cannabis plant has not been made punishable and only its cultivation has been prohibited and made punishable under Section 8 of the Act. He submitted that bhang as such has not been included in the definition of cannabis (hemp) and its sale, import or export and possession has not been made punishable under the Act. However, under the provisions of the Punjab Excise Act (hereinafter referred to as the Excise Act), the possession of Bhang has been made punishable in the definition of Intoxicating drugs as under Section 3(13) of the Excise Act, bhang has been included in the definition of the intoxicating drugs. Therefore, learned counsel for the appellant, contended that conviction and sentence of the appellant under Section 20-B of the Act is wholly illegal and without jurisdiction. In support of his contention, learned counsel for the appellant has relied upon three judgments of different High Courts, including this Court, viz., Samid V/s. State of U. P., 1995 (3) Rec Cri R (Cri) 449 : (1995 All LJ 1103); Manjee V/s. State of Rajasthan, 1996 (2) Rec Cri R (Cri) 258 : (1996 Cri LJ 3787) and Gurdial Singh v. State of Punjab, 2002 (3) Rec Cri R (Cri) 334.

4. Per contra, learned counsel for the respondent though submitted that bhang falls under the definition of cannabis (hemp) as defined under Section 2{iii) of the Act but he could not cite any contrary judgment in support of his contention.

5. After hearing the arguments of the learned counsel for the parties, 1 am of the opinion that this appeal deserves to be allowed and the conviction and sentence of the appellant are liable to be set aside. In all the aforesaid three judgments, it has been held by different High Courts, including this Court, that bhang (hemp) does not fall under the definition of cannabis (hemp) as defined under Section 2(iii) of the act. Thus, its possession does not constitute an offence punishable under the Act.

6. In Samids case (1995 All LJ 1108) (supra), the Allahabad High Court summoned the officers dealing with the narcotic drugs and cases relating thereto to explain the Court whether bhang is a narcotic or psychotropic drug and the possession of which is punishable under the Act or not. In response to that, the letter given by the Assistant Director, Narcotics Control Bureau, Var