Calcutta High Court
Promodh Jha vs State Of West Bengal on 22 January, 2008
Equivalent citations: 2008(1)CHN710
Author: Girish Chandra Gupta
Bench: Girish Chandra Gupta
JUDGMENT Kishore Kumar Prasad, J.
1. The petitioner-accused Promodh Jha residing at village Absar within the limits of Washaliganj, Dist-Nowda, Bihar has filed this application for bail under Section 439 of Cr. PC in connection with T. R. Case No. 20/2007 arising out of Bally P.S. case No. 216/07 dated 6.8.07 under Section 20(b)(ii) of the NDPS Act, pending before Judge, Special Court under NDPS Act, Howrah (A.D.J., 3"1 Court, Howrah).
2. As per prosecution version, 100 kgs. of 'Bhang' in four gunny bags was recovered from the possession of the petitioner-accused on 6.8.07 at about 12.35 hrs, near Bamurdanga Bridge within the limits of Bally police station when he was travelling in a bus bearing No. WB-78-9297 styled as 'Sangita' from Dunkuni side on N. H. 2 (Delhi Road). For that recovery, the petitioner along with three others namely the two drivers of the bus and the manager/conductor of the bus, all residing in different districts of Bihar, was chargesheeted for the offence punishable under Section 20(b)(ii) of the NDPS Act for possessing, selling, transporting, importing inter-State and using of Bhang in contravention of the provision the Act.
3. Counsel for the petitioner at the very outset raised the contention that 'Bhang' is not a narcotic or psychotropic drug as defined under the Act and hence its possession is not an offence. He submitted that 'Bhang' 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. He relied upon the two judgments of Punjab and Haryana High Court and Rajasthan High Court reported in 2005 Cr. LJ 253 and 1993 Cr. LJ 2503 respectively.
4. Per contra, Id. P.P. appearing for the State submitted that 'Bhang' falls under the definition of cannabis and there is strong prima facie evidence against the applicant for the offence complained of.
5. It is true that the cannabis plant and cannabis (hemp) are two different contrabands under NDPS Act. Cannabis (hemp) is defined under Section 2(iii) of the said Act which includes char as and ganja and also any mixture with or without any neutral material of any of the above forms of cannabis or any drink prepared therefrom.
6. Charas is defined under Section 2(iii)(a) of the NDPS 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.
7. Under Section 2(iii)(b) of the Act Ganja is also defined according to which Ganja is flowering tops of the cannabis plant (excluding seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated.
8. Cannabis plant is defined under Section 2(iv) of the Act which means any plant of the genus cannabis.
9. 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.
10. 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 Vonosshadhi Nirdeshika (Ayurvediya Pharmacopia).
11. According to Modi's Medical Jurisprudence and Toxicology, 21sl Edition, 1988 (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 Modi's Toxicology, Charas is concentrated resin exuding from the leaves and stems of the plant.
12. Here it is to be noticed that imports, exports, transports, possession or sell of intoxicating drug is punishable under the Bengal Excise Act, 1909 wherein intoxicating drug has been defined under Section 3(13) or the said Act which includes leaves, small stalks and flowering tops of the Indian Hemp plant (Cannabis Sativa L.) including all forms known as Bhang or Siddhi. It is also to be noticed that cultivation of any hemp plant (Cannabis Sativa L.) is also punishable under the Bengal Excise Act, 1909.
13. In order to resolve the controversy one has to notice the activity prohibited under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the N.D.P.S. Act) which is contained in and which provides as follows:
Section 8. Prohibition of certain operations.- No person shall-
a) cultivate any coca plant or gather any portion of coca plant; 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 into India, export from India or transship any narcotic drug or psychotropic substance, except for medical or scientific purposes the 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 the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf:
Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes.
14. The present case is not concerned with Clauses (a) and (b) noted above. In order to bring the case within the ambit of Clause (c) the items seized from the possession of the petitioner herein has to be either a narcotic drug or a psychotropic substance.
15. Narcotic Drug has been defined in Section 2(XIV) of the Act as follows: "Narcotic Drug" means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured goods.
16. Psychotropic substance has been defined in Section 2(XXIII) of the Act as follows:
psychotropic substance" means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the schedule.
17. It is nobody's case that psychotropic substance was seized from the possession of the petitioner herein. What was seized was 'BHANG' even according to the chemical report submitted by Senior Scientific Officer, Narcotic Section, State Drug Control and Research Laboratory, Calcutta. 'BHANG' as already noticed is that part of Cannabis plant which consists of seeds and leaves not accompanied by the flowering or fruiting tops.
18. Description of the item seized as would appear from the chemical report dated 7.9.07 is as follows:
Stalks, seeds and leaves in two white envelops (Ex-A) and greenish yellow powder in another two (2) off-white envelops enclosed separately in two (2) big envelops (Ex-A, B, C and D) keeping powder and herbal parts in each packet.
19. According to the chemical report what was seized was 'Bhang'. 'Bhang' does not appear to have been included in the definition of cannabis (hemp) which reads as follows:
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;.
20. Therefore, we can safely conclude that 'Bhang' is not a narcotic drug and as such the prohibition engrafted in Section 8 of the Act cannot apply to possession or sell or purchase of Bhang. We should not however be understood to have held that possession or sell or purchase of Bhang is legal. What we have held is that this item is not covered under the N.D.P.S. Act.
21. Under the facts and circumstances of the case and in view of the above discussion, we feel that it will be just and proper to enlarge the accused-applicant Promodh Jha, s/o Sri Pravunath Jha, on bail.
22. Accordingly, the accused-applicant Promodh Jha may find bail of Rs. 10,000/- with two sureties of Rs. 5,000/- each, one of whom must be local to the satisfaction of Additional District Judge, 3rd Court, Howrah (Sadar) empowered to exercise powers under N.D.P.S. Act for his personal appearance before that Court on each and every date of hearing till completion of trial.
This application for bail is, thus, disposed of.
23. Urgent xerox certified copy of this judgment, if applied for, be supplied to the Id. Counsels for the parties on compliance of all formalities.
Girish Chandra Gupta, J.
I agree.