Bhang Not Covered Under NDPS Act, Prosecution Must Show It Is Prepared From Charas/ Ganja: Karnataka High Court

A single judge bench of Justice K Natarajan allowed the petition filed by accused Roshan Kumar Mishra and granted him bail on execution of a personal bond of Rs 2 lakhs, with two sureties of like amount.

The bench primarily relied on the judgment of the Bombay High Court in the case of Madhukhar vs The state of Maharashtra 2002, SCC Online, Bombay 1271 and the judgment of the Punjab and Haryana High Court in the case of Arjun Singh vs the State of Haryana, 2004 SCC Online, P&H 828, wherein the courts had acquitted the accused persons holding that Bhang is not covered under the definition of NDPS Act.

The bench also refused to accept the prosecution arguments that the Bhang is prepared out of the ganja leaves, therefore, it comes under the definition of ganja.

Referring to Section 2 (iii)(a) and (b) of the Act which pertains to charas and ganja or any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom, the bench said,

"There is no scientific evidence before this Court to show that the Bhang is prepared out of either charas or ganja or ganja leaves. Since ganja leaves and seeds are excluded from the definition of ganja and nowhere in the NDPS Act the Bhang is referred to as a prohibited drink or prohibited drug. Even the State Government has not made any rules under the NDPS and mentioned the Bhang as prohibitory drug or issued any notifications in respect of Bhang."

Following which the bench opined,

"It is worth to mention that the Bhang is a traditional drink, most of the people used to drink in North India especially near the 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."

Finally it held, "Until the receipt of the forensic science lab report, in order to confirm that this bhang is prepared out of the charas or ganja, the Court cannot come to any conclusion that the bhang is prepared out of the substance of ganja."

Accordingly it allowed the petition and granted bail to the accused.

Case Title: ROSHAN KUMAR MISHRA v. THE STATE OF KARNATAKA

Case No: CRIMINAL PETITION NO.6611 OF 2022

Citation: 2022 LiveLaw (kar) 340

Date of Order: August 26, 2022

Appearance: Advocate S MANOJ KUMAR for petitioner; HCGP R.D. RENUKARADHYA for respondent

Click Here To Read/Download Order