The High Court dismissed State appeals acquitting two respondents charged under the NDPS Act for possession of Bhang. The court held that per the Act, Bhang is a 'cannabis plant' and not 'cannabis (hemp)', making possession not an offence.
Government Appeals were dismissed. Respondents to be released on bail; personal bond of respondent-Sunildas cancelled.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
THE HON’BLE SRI SANJAYA KUMAR MISHRA
AND
THE HON’BLE SRI ALOK KUMAR VERMA
12TH JULY, 2022
GOVERNMENT APPEAL NO.66 OF 2020
Between:
State of Uttarakhand ...Appellant
and
Sunildas ...Respondent
Counsel for the State/ : Mr. J.S. Virk, learned Deputy Appellant Advocate General. Counsel for the : Mrs. Shruti Joshi. Respondent
with
GOVERNMENT APPEAL NO.67 OF 2020
Between: State of Uttarakhand ...Appellant and Shambhudas ...Respondent
2
| Counsel for the State/ Appellant |
: Mr. J.S. Virk, learned Deputy Advocate General. |
|---|---|
| Counsel for the | : Mrs. Neelima Mishra. |
| Respondent | (Nominated for free legal aid). |
The Court made the following:
Judgment: (per Hon’ble SRI ALOK KUMAR VERMA, J.)
These two Government Appeals are directed against a common judgment dated 09.01.2020, passed by the learned District & Sessions Judge/Special Sessions Judge, Pauri Garhwal in Special Sessions Trial No.1 of 2019, “State vs. Sunildas”, and, in Special Sessions Trial No.2 of 2019, “State vs. Shambhudas”, whereby, the learned trial court has acquitted the respondents-accused persons from the charge of Section 8 read with Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as, “the Act,1985”). These two Government Appeals are being decided by this common judgment.
2. Briefly stated the prosecution story as it emerges from re-appreciation of the evidence on record is that, on 29.12.2018, Sub-Inspector Ashok Siraswal (PW-1) along with other police constables were going to Station Road. When they reached near Tourist Sweet Shop, two persons were seen
3
sitting carrying bags. The police party informed Sub-Inspector Sandeep Sharma (PW-2) and Constable Ajay Kumar (PW-4). Sub-Inspector Sandeep Sharma (PW-2), Constable Madhusudan (PW-3) and Constable Ajay Kumar (PW-4) came at the spot. The Circle Officer of Police was informed. J. R. Joshi, the Circle Officer of Police, Kotdwar (PW-6) came at the spot. During search before a public witness, namely, Pradeep Singh (PW-5), dry leaves of Bhang were recovered from the bags of the respondents. On weighing, the weight of the dry leaves of Bhang, kept in the bag of Sunildas, was found to be 14.200 grams, and, weight of the dry leaves of Bhang, kept in the bag of Shambhudas was found to be 12.700 grams.
3. The respondents were arrested. The recovered articles were sealed. The said recovered articles were taken into possession vide recovery memo (Ext. Ka.6). The First Information Report was lodged. The recovered articles were sent to the Forensic Science Laboratory for chemical analysis. On chemical analysis, identity of the said articles have been established as Bhang. After completion of investigation, the respondents-accused persons were charge-sheeted.
4. The accused persons denied the charges and claimed to be tried.
4
5. In order to bring home the guilt of the accused persons, the prosecution examined as well as ten witnesses.
6. Statements of the accused persons were recorded under Section 313 of the Code of Criminal Procedure, 1973, wherein they denied the entire evidence of the prosecution.
7. The learned trial court has held that the possession of Bhang is not an offence under the Act, 1985.
8. Heard the learned counsel for the parties.
9. Mr. J.S. Virk, the learned Deputy Advocate General appearing for the appellant argued that there are enough material evidence on record to corroborate the prosecution case, and, to prove the involvement of the respondents in commission of the crime, and, the learned trial court has failed to appreciate the evidence of the report of the Forensic Science Laboratory, according to which, the recovered contrabands were found as Bhang, and the said Bhang were recovered from the possession of the respondents.
10. On the other hand, Mrs. Shruti Joshi, Advocate and Mrs. Neelima Mishra, Advocate, appearing for the respondents, have supported the impugned judgment.
11. The law is well settled that order of acquittal strengthens the presumption of the innocence of the accused
5
persons. It is equally the duty of the court to see that the guilty do not escape punishment.
12. Admittedly, the case of the prosecution is that the dry leaves of Bhang were recovered from the possession of the respondents-accused persons.
13. Cannabis (hemp) and cannabis plant are two different contrabands. Cannabis (hemp) is defined in Section 2 (iii) of the Act, 1985, which reads as under :-
“2(iii) "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 know 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 know 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.”
14. Cannabis plant is defined under Section 2 (iv) of the Act, 1985, which means any plant of the genus cannabis.
15 . Cannabis is a genus of annual flowering plant. Some plants have male flowers and some plants have female flowers. Some plants have both male and female flowers.
6
16. Charas is traditionally made from the top leaves and flowers of the unfertilized young female cannabis plant. Ganja is the flowering or fruiting tops of the cannabis plant, excluding the seeds and leaves when not accompanied by the tops. Bhang is a paste made from the flowers and leaves of the female cannabis plant. Bhang is made from the leaves of the cannabis plant. It does not contain the flowering or fruiting tops as found in Ganja. Therefore, Bhang does not fall within the definition of cannabis (hemp) as defined under Section 2 (iii) of the Act, 1985. Bhang comes within the definition of cannabis plant. Therefore, cultivation of Bhang is punishable under Section 20(a) of the Act, 1985, but, possession of Bhang is not prohibited by the Act, 1985 and is not an offence under the Act, 1985.
17. The case of the prosecution is that the dry leaves of Bhang were recovered from the possession of the respondents-accused persons. The possession of Bhang is not an offence under the Act, 1985. Therefore, we are in complete agreement with the view taken by learned trial court and see no reason to interfere with the judgment and order impugned herein.
18. As a result, the instant appeals are liable to be dismissed. The appeals are dismissed accordingly.
7
19. The respondent-Sunildas is on bail. His personal
bond is ordered to be cancelled.
20. The respondent-Shambhudas is in judicial custody. The respondent-Shambhudas shall be released from jail, in case, he is not otherwise required in any other case.
21. The Registry is directed to provide a copy of this judgment to the Superintendent of concerned Jail and the concerned trial court for intimation and compliance.
22. The Trial Court Records be sent back.
____________________
Sanjaya Kumar Mishra, J.
___________________
Alok Kumar Verma, J.
Dated: 12.07.2022 JKJ/Pant
3 issues framed by the court
Whether possession of dry leaves of Bhang constitutes an offence under Section 2(iii) read with Section 20 of the NDPS Act, 1985.
Whether the High Court should interfere with the acquittal of the respondents in the Narcotic Drugs and Psychotropic Substances Act, 1985 case.
Whether Bhang falls within the definition of 'cannabis (hemp)' or merely 'cannabis plant' under the NDPS Act, 1985.
2 provisions across 1 enactments
State of Uttarakhand
Sunildas
Shambhudas
Sanjaya Kumar Mishra
Alok Kumar Verma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
