Bhang & Ganja position in Indian law and legal perspective;

“Bhang” is an edible mixture made from the buds, leaves, and flowers of the female cannabis, or female marijuana plant but as per the National Policy on Narcotics and Psychotropic Substances it should not have anything else but leaves. Use of other parts of the plant or a wrong concoction could make it highly intoxicating and a contraband. “Bhang” finds mention in Indian religious texts as one of the ingredients to prepare “Somrasa”.

Variously Translating to; “To the five kingdoms of the plants which Soma rules as Lord we speak. Darbha, hemp, barley, mighty power: may these deliver us from woe.” ‘भङ्ग’ (bhang) refers to the cannabis plant. (Translations may vary).

Worldwide, “Marijuana” is a term used to classify varieties of Cannabis that contain more than 0.3% tetra hydro cannabinol or THC (by dry weight) and can induce psychotropic or euphoric effects on the user. The term CBD Oil or Cannabidiol oil got infamous due to being associated with a recent case involving the death of a Bollywood personality. It is arguably legal with upto 0.3% THC.

As per law under the The Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, cannabis is defined in Section 2 (iii) of the act. According to this section cannabis (hemp) is defined as: (a) Charas – a separated resin, in whatever form, whether crude or purified; obtained from the cannabis plant, which also includes the concentrated preparation and resin known as hashish oil or liquid hashish; (b) 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 may be known or designated; and (c) any mixture, with or without any natural material, of any of the above forms of cannabis or any drink prepared therefrom.

Many States in India have specific law(s) to regulate the cultivation and sale of “Bhang” via their Excise Acts or Liquor Prohibition Acts or special law made for regulation of “Bhang”. For example, Delhi Excise Rules, 2010 provides for license for sale of “bhang” as L-27 license, in line with various Liquor Sale licenses. There are some local laws in a few States of India prohibiting it totally too and prescribing punishments. For example, Assam Ganja and Bhang Prohibition Act, 1958 totally prohibits the cultivation, sale, consumption or trafficking of Ganja and Bhang in the State.

“Ganja”, on the other hand, clearly finds a mention in section 2(iii) of the NDPS Act alongwith Charas and Hashish and Hemp. In contrast with “Bhang” which is an edible paste used with milk, water or other edible items, Ganja is mostly smoked with or without tobacco. Ganja, which is also loosely called as “weed”or “hemp” or “marijuana” or “joint” is a contraband and cultivation, manufacturing, possession, trafficking or sale, all are prohibited all over India, without any exception. Any of them could fetch a punishment upto 20 years of imprisonment.

As per Section 20 of the The Narcotic Drugs and Psychotropic Substances Act, 1985 dealing with the Punishment for contravention in relation to cannabis plant and cannabis for anyone who produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis in Small quantity is Rigorous imprisonment up to 6 months or fine up to Rs. 10,000 or both. For more than small quantity but less than commercial quantity it is Rigorous imprisonment. up to 10 years + fine up to Rs. 1 Lakhs. For Commercial quantities it states that a Rigorous imprisonment 10 to 20 years and a fine of Rs. 1 to 2 Lakhs may be imposed.

For Ganja, upto 1 kg is considered as small quantity and 20 Kg or more is considered to be commercial quantity.

The Bombay high court has held that offences under the stringent anti-narcotics law(NDPS), which are punishable with a maximum jail term of upto three years should be considered “bailable”. That means anyone caught with any narcotics with very small quantity meant for personal consumption only, he should get bail from Police station itself. This view has been supported by most High Courts.

Recently, a single bench of The Bombay High Court through Justice Kotwal observed in Rhea Chakraborty Vs Union of India that every offence under The NDPS Act should be considered as non bailable only vide section 37 of the Act . It was further observed that :

If the accused claims bail as of right in case of possession of small
quantity then no investigation can be carried out to find the source
and trade of the contraband. This defeats the object of the Act.

This judgment came in total disagreement of the earlier judgments of Delhi and Bombay High Courts.

The Bombay High Court relied upon a five judges bench decision of The Supreme Court of India, viz. The State of Punjab Vs. Baldev Singh [1999] in which it was observed that Section 37 makes all the offences under the Act to be cognizable and non-bailable and also lays down stringent conditions for grant of bail. Baldev Singh’s Judgment came in 1999 and which High Court has correctly pointed the law is tough to say now. The NDPS law in India and across the world continues to evolve.

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