Bhang is NOT prohibited under NDPS Act

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While granting bail to a man accused of possessing 29 kg Bhang, single-judge Justice K Natarajan of Karnataka High Court held that there is no scientific evidence to show that the Bhang is prepared out of either charas or ganja or ganja leaves and hence, it is not a prohibited drug or drink under the NDPS Act.
Facts- The Accused Rohan Kumar Mishra was arrested by the police who seized 29kg of bhang and 400 grams of ganja from his possession, his bail application came to be rejected by special Judge and hence he approached the high court.
The counsel on behalf of petitioner said that he was in possession of 400 grams of ganja which is less than small quantity. Regarding Bhang, the council argued that it is a drink normally sold in the Lassi shops at North India. It is not a prohibited drug. The said drink is used during the shivarathri festival, it is not a banned drink and it does not fall under the NDPS Act. The petitioner is in custody for almost three months, he is ready to abide by the conditions that may be imposed by this court. Hence, prayed for granting bail.
The Prosecution opposed the bail petition contending that the bhang is prepared out of the ganja leaves, therefore, it comes under the definition of ganja under NDPS Act. Prosecution further argued that the investigation is under progress, the seized articles are more than commercial quantity. Hence, prayed for dismissing the bail petition.
The court rejected the state contention that bhang was prepared out of the ganja leaves which comes under the definition under section 2(iii)(c) of NDPS Act.
Section 2(iii) of NDPS Act reads as under:
“(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 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;”
The Single-Judge further noted that Bhang is a traditional drink, most of the people used to drink in North India especially near Shiva temples and it is also available in Lassi shops like all other drinks. That apart the said Bhang were sold in the market with branded names.
The bench also refused to accept the argument that the bhang is prepared out of the ganja leaves, therefore it comes under the definition of ganja. There is no scientific evidence before this court to show that Bhang is prepared our of either charas or ganja or ganja leaves. Since Ganja leaves and seeds are excluded from the Definition of ganja and no where in the NDPS Act the Bhang is referred as a prohibited drink or prohibited drug.  Even the State Government has not made any rules under the NDPS and mentioned about the Bhang as prohibitory drug or issued any notifications in respect of Bhang. 
The Single-Judge agreeing with the judgment of Bombay High Court (Madhukar vs. The State of Maharashtra 2002 SCC Bombay 1271) as well as Punjab and Haryana High Court (Arjun Singh vs. State of Haryana 2004 SCC P&H 828) allowed plea and granted bail to the accused subject to execution of a personal bond of ₹2 lakh, with two sureties of like amount.
Related case law –
1.Madhukar vs. The State of Maharashtra 2002 SCC Bombay 1271;
2.Arjun Singh vs. State of Haryana 2004 SCC P&H 828);
3.Samid v. State of U. P., 1995 (3) Rec Cri R (Cri) 449 : (1995 All LJ 1103); 
4.Manjee v. State of Rajasthan, 1996 (2) Rec Cri R (Cri) 258 : (1996 Cri LJ 3787)
5.Gurdial Singh v. State of Punjab, 2002 (3) Rec Cri R (Cri) 334.

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