INTRODUCTION
India is renowned for being a very conservative society and this holds even when it comes to consuming most forms of intoxicating substances. However, despite this fact, the nation has been cannabis friendly as far as 3000 years ago.[1] Up until 1961, cannabis in all forms was legal in India. Cannabis, however, is categorised as a hard drug by the Single Convention on Narcotic Drugs.[2] Even though India was against this, it gave in to pressure eventually in 1985.
Bhang has been a huge part of Indian culture and is a common staple during Holi, where it is incorporated into thandai and lassi and makes a refreshingly cool drink. It can also be incorporated into snacks. Its roots go back over 3000 years and the earliest references to it are found in the Atharvaveda where it is named as one of the five sacred plants. Lord Shiva is known as the Lord of Bhang and has been long associated with cannabis. It has also been used in Ayurvedic medicine to treat various problems which range from anxiety to skin disorders.[3]
THE ISSUE OF LEGALITY
Bhang is formed from the leaves and stems of the plant, whereas Ganja, or marijuana, is derived from the dried flower buds of the cannabis plant. The most potent of the three is Charas, sometimes referred to as hashish, a resin made from rubbing cannabis blossoms for hours. The Narcotic Drugs and Psychotropic Substances Act, of 1985 is the national law in India that addresses cannabis. This legislation prohibits the possession of Hashish and Ganja, but it leaves industrial hemp and bhang unaffected. This is so because “cannabis (hemp)” as defined by the act[4] 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;
(iv) “cannabis plant” means any plant of the genus cannabis;
There is a legal loophole that permits the consumption of cannabis leaves, but not its buds and resins. The cultivation of any cannabis plant is prohibited under Section 2(viii)(a)[5], which makes growing cannabis illegal. However, this provision does not apply to the collection of leaves from cannabis plants that grow naturally.
However, the laws concerning Bhang sales and consumption vary between states. The Assam Ganja and Bhang Prohibition Act of 1958 prohibits the purchase, sale, possession, and consumption of Ganja and Bhang. The Bombay Prohibition (BP) Act of 1949 forbids the manufacturing, distribution, and use of Bhang and its derivatives in Maharashtra without a license.
THE RESPONSE OF THE JUDICIARY
The judiciary has discussed this issue in various cases and judgments throughout the years;
The accused in Samid v. State of Uttar Pradesh[6] was found in possession of 25 kilograms of unlicensed Bhang. It was argued that Bhang does not qualify as a narcotic nor a psychotropic substance under the Narcotic Drugs and Psychotropic Substances Act. It was held that even while the Act defines cannabis (hemp), Bhang is not specifically included in this description and is not classified as a narcotic or psychotropic substance. Therefore, under the NDPS Act, its possession would not result in a conviction.
In the case of Arjun Singh v. State of Haryana,[7] the accused filed an appeal against the Additional Sessions Judge’s decision in Rohtak, where he was found guilty following Section 20-B of the Narcotic Drugs and Psychotropic Substances Act, 1985, and given a fine of one lakh rupees in addition to ten years of rigorous imprisonment. The appellant was found to have fifteen and a half kilograms of Bhang as he was riding a train. The appellant was cleared of all charges when the court overturned the Additional Sessions Judge’s decision.
In a recent case of Roshan Kumar Mishra v. State of Karnataka[8], decided on 26-08-2022, the Karnataka High Court, granted bail to the accused on the basis that Bhang will not be taken into account when determining the commercial quantity with Ganja. The Court ruled that it is unsafe to conclude unless the forensic scientific lab report confirms that it is not made from Ganja or Charas. After being arrested by the police for possessing both ganja and bhang together, the applicant requested bail. The court said that there is no evidence in front of it that Bhang is made from Charas, Ganja, or Ganja leaves, and it cited the rulings in Madhukar v. State of Maharashtra[9] and Arjun Singh v. State of Haryana.
CONCLUSION
Bhang is believed to be a relatively less harmful variant of cannabis though little research has been done on it and it remains the least studied cannabis preparation.[10]Further research is necessary to completely understand the hazards and advantages of consuming bhang, despite some claims that it can cause addiction and have detrimental impacts on health. It is important to approach any substance with caution and make informed decisions based on available information. It is only legal to make bhang from wild marijuana leaves; adding flowering tops or cannabis plant resin to bhang is prohibited, but this is seldom inspected. Furthermore, if a test for THC (tetrahydrocannabinol) in Bhang comes back positive, it will be classified as a psychotropic because THC is a psychotropic substance.[11]There are also variations in state laws, which restrict the maximum quantity of Bhang an individual can carry and the minimum age for it to be legally bought.
It is not uncommon for Bhang to contain other parts of the cannabis plant. However, since it is an integral part of our culture, particularly at festivals like Holi, there is rarely a clampdown on dealers or customers during this period. Legally speaking, nevertheless, Bhang is still beyond the purview of the NDPS Act of 1985. There even exists government-authorized Bhang shops in many states especially in northern India. Bhang has become such an integral part of Indian culture that attempts to criminalize it would only infuriate the public and religious practitioners. However, as long as this loophole exists, it will continue to be misused by people all around.
Author(s) Name: Taniya Sunu (VITSOL, VIT University, Chennai)
Reference(s):
[1] Shalbha Sarda, ‘What’s the deal with Cannabis in India?’ (Fodors Travel, 18 January 2023) <https://www.fodors.com/world/asia/india/experiences/news/is-cannabis-legal-in-india > accessed 3 December 2023
[2] Single Convention on Narcotic Drugs, 1961
[3] Ada McVean, ‘Getting more Bhang for your Buck: Cannabis in India’ (McGill, 11 March 2020) <https://www.mcgill.ca/oss/article/health/getting-more-bhang-your-buck-cannabis-india> accessed 3 December 2023
[4] Narcotic Drugs and Psychotropic Substances Act, 1985
[5] Narcotic Drugs and Psychotropic Substances Act, 1985, s 2(viiia)
[6]Samid v. State of Uttar Pradesh (1995) All LJ 1108
[7]Arjun Singh v. State of Haryana (2005) CriLJ 253
[8]Roshan Kumar Mishra v. State of Karnataka(2022) 08 KAR CK 0030
[9]Madhukar v. State of Maharashtra (2002) 104 BOMLR 908
[10]Yatan Pal Singh Balhara and Shachi Mathur, ‘Bhang- beyond the purview of the narcotic drugs and psychotropic substances act’ (National Library of Medicine, October to December 2014) <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4220341> accessed 6 December 2023
[11] P.K. Dalal and T. Sivakumar, ‘Critical Appraisal of NDPS Act 1985’, 19 (Indian Journal of Behavioural Sciences, October, 2008) <https://jils.blog/2019/03/16/a-case-for-reformation-of-narcotics-law-in-india/> accessed 6 December 2023
