This article is written by Shubhankar Sharma pursuing Certificate Course in Introduction to Legal Drafting: Contracts, Petitions, Opinions & Articles from LawSikho.
Table of Contents
Introduction
Marijuana also known as cannabis or dope or Maryjane or spliff it’s the same thing but its names and properties change from place to place, records state that cannabis has been in use in our country since 5000-4000 BC. Atharva Veda hails this as one of the five sacred plants. Cannabis is made up of more than 120 components which are known as ‘Cannabinoids’, the most famous of those are CBD (Cannabidiol) and THC (Tetrahydrocannabinol). The CBD accounts for the reduction in pain and inflammation and helps in reducing or controlling anxiety, panic attacks, seizures, migraines, etc. Whereas the THC is the psychoactive part of the plant that gets you ‘high’ as it helps in relaxation which results in the plant being used recreationally as opposed to medicinally.
Three types of plant varieties
- It has three types of plant varieties, the first one being Cannabis Indica which has its origins from the Hindu Kush mountains in the northern parts of Afghanistan and Pakistan. This plant is high in THC which means it makes it both a recreational and medicinal drug.
- The second type is called Cannabis Sativa which has originated from Eastern Asia but lately found all over the world due to its high demand and cultivation all over the world. Its high demand is due to the multiple uses of the plant variety which not only helps medicinally but also the seeds of Sativa are used for lamps, cooking, paints, fiber, etc. It can also be used as fodder for birds as it is nutritious. The flowers and fruits are dried up and smoked up which is popularly also known as marijuana and the resins also called the ‘Hashish’ also contain psychoactive properties.
- The third type being Cannabis Ruderalis it is native to Russia, Central, and Eastern Europe and has a low THC in its resin but, however, it is high in CBD. Due to its low THC rate, it is not used recreationally, but because of its high CBD value, it is used significantly to treat depression, anxiety, and epilepsy.
History of cannabis in India
“He who drinks bhang, drinks Shiva”- J.M.Campbell, On the Religion of Hemp. India has been associated with cannabis since time immemorial; we are worshippers of Lord Shiva who according to the Puranas and the Vedas is the ultimate connoisseur of bhang (seeds and leaves of cannabis). Hindus offer bhang as a sacred food to Shiva and also consume it on that particular day. One major incident involving Lord Shiva and bhang is when the nectar was being churned out from the ocean, Lord Shiva provided bhang from his own body to purify the ceremony.
British while ruling India observed that Indians are very fond of the plant and wanted to know its downside. They set up a commission to understand the usage of the plant and its cultivation, preparation of drugs from that plant, and export-import of those drugs, and its social and moral effect on people using it. They interviewed over 1000 people belonging to different caste, creed, religion, and place of birth and after years of collecting data came up with the analysis. The Indian Hemp Drugs Commission Report, 1894 was concerned with whether this drug affects the mental well-being of the individual or not. But they decided against banning it because of its religious values and ancient use and taking it away from the people would only cause more damage to the public. They also wrote in their research that more harm was done by alcohol than cannabis.
India was a frequent user of this sacred plant even resisting constant pressure from the United State of America towards banning the drug under the Single Convention Legislation in 1961, which led to banning the production and supply of narcotic drugs which included cocaine, morphine, opium, marijuana, heroin, oxycodone to name a few.
India agreed to ban all other drugs but was apprehensive with regards to cannabis, the convention gave India 25 years to reduce the recreational use of the drug and agreed to exclude bhang which was made from the seeds and not the leaves.
In 1985, with Rajiv Gandhi in power the infamous Narcotic Drugs and Psychotropic Substances Act, 1985 was passed in India. This banned the cultivation and consumption of Marijuana being coerced by International political pressure by various countries, mainly the USA, then it has been a struggle to fight against decriminalization of Cannabis in India, due to the increase in liquor and tobacco business the road to get Cannabis legalized would be tumultuous.
While banning these drugs in 1985 there was no discrimination between hard drugs or soft drugs in the Act marijuana considered to be a soft drug was clubbed with heroin, methamphetamine, LSD, etc.
Current scenario of cannabis in India
Cannabis is a soft drug, but in the NDPS Act, it has been clubbed with hard drugs hence creating prejudice in the mind of the older generation (average age of a politician in the parliament is 54) that it is harmful drug. If done in excess anything could be harmful, but if it is used smartly then it can only benefit us.
The consumption of Marijuana is at an all-time high all over the world, if we look at the recent reports by ABCD 2018- Cannabis Price Index report it sheds light on the consumption of Marijuana all over the world, Indian cities are in the top three it’s not at all surprising.
|
Sr.No |
Cities |
Country |
Price per gram, USD |
Total consumption in a metric ton |
|
1 |
New York |
USA |
10.76 |
77.44 |
|
2 |
Karachi |
Pakistan |
5.32 |
41.95 |
|
3 |
Delhi |
India |
4.38 |
38.26 |
|
4 |
Los Angeles |
USA |
8.14 |
36.06 |
|
5 |
Cairo |
Egypt |
16.15 |
32.59 |
|
6 |
Mumbai |
India |
4.57 |
32.38 |
|
7 |
London |
UK |
9.2 |
31.40 |
|
8 |
Chicago |
USA |
11.46 |
24.54 |
|
9 |
Moscow |
Russia |
11.84 |
22.87 |
|
10 |
Toronto |
Canada |
7.82 |
22.75 |
(Data credit: ABCD 2018 Cannabis Price Index)
Very evident from the above table which shows the quantity of consumption, the price of cannabis per gram in dollars and the top ten cities in the world consuming marijuana. We shouldn’t be surprised to see India and Pakistan in the top 6 with two of its cities namely Delhi and Mumbai. Although this data might be three years old I would be lying if I said that India wouldn’t be in the top two currently.
Every other day 100s of tonnes of marijuana are seized while being sold in the black- market, most of it is burned as shown many times on television. On 13th Feb, 2021 a tempo loaded with 1800 kgs of marijuana worth Rs. 3.6 crores were seized by Mumbai’s Anti-Narcotic cell while passing through Vikhroli in Mumbai leading to the arrest of 2 gang members who were a part of this drug racket. On Oct 18, 2020 Narcotics Control Bureau seized Marijuana worth 50 Lakhs smuggled via courier. According to the reports this parcel was coming from Canada as it was a new bud (strain) with high demand in the market. Dealings usually take place via cryptocurrency which is not traceable and dark-net is something which is very commonly used by such traffickers to accept orders from potential consumers and addicts.
These are just two cases, there are thousands of cases every month where the NCB and other officials raid and seize lakhs and tonnes of marijuana and I believe that even though they are caught and put behind bars. People who crave stuff like marijuana end up getting it anyway due to the surge in the black market. The point I am trying to convey is that marijuana even though banned, is easily available, the plant has its recreational value but it has its medicinal value for which we should use it extensively.
The legal status of marijuana in India
The lawmakers decided to ban the flower (marijuana), resin (charas) in crude or purified form obtained from the cannabis plant and it also includes concentrated preparation known as hashish under the Narcotic Drugs and Psychotropic Substances Act, 1985. The Act, states that whoever is found with the possession of the banned substance or is found to cultivate, produce, manufacture, sell, purchase, transport, and use of cannabis shall be punished under Section 20.
If a person is caught with small amounts of cannabis he would be liable for rigorous imprisonment for a term which may extend up to six months or with a fine, which may extend up to ten thousand rupees, or with both; what is considered to be small amounts? According to the Act, a small quantity would be less than 1000 gms.
If a person is caught with more than a small quantity but less than the prescribed commercial quantity (Jashvantbhai Babubhai Parmar vs The State Of Gujarat And Anr. on 9 May, 2008) the accused will be liable to rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees.
If a person is caught with a commercial quantity of Cannabis more than 20 kilograms (Vijendra Behra vs State on 29 April, 2010) the accused shall be liable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees; provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.
If juveniles are found in the possession, selling, or consumption of cannabis, they aren’t prosecuted under the NDPS Act but are prosecuted under Juvenile Persons (Care and Protection) Act,2015.
Why decriminalize a plant?
There is always a sense of preconception attached to this drug, due to the lack of knowledge regarding the benefit of this drug it has been kept away from being legalized. Considering it is not a water-intensive crop and requires no amount of herbicides or pesticides it is monetarily viable for the farmers and if legalized could help the economy majorly. It would end up creating more employment for farmers who are seasonal workers.
It is also a crop that has faster growth as compared to other crops, hemp yields fabric that is much better than cotton. It takes around 400 times less water than cotton and also has eight times more tensile strength. Mass cultivation of industrial hemp is allowed as per the NDPS Act but only at the helm of the state government. Cannabis plants should be allowed to be produced and cultivated for industrial benefits which have a THC content of 0.3 to 1.5%. A report published back in 2014 suggested that if legalized this hemp industry could be booming and churning revenues up to Rs.240 mn basically reducing the THC content would eventually mean the psychoactive effect of the drug would be considerably diminished which would eventually be useless to any drug abuser.
Industrial hemp is now being used for making clothing, healthy foods, organic body care, biofuel, etc. Hemp paper is far more superior to normal paper as it is cost-effective, less damaging to the environment, the manufacturing of hemp paper requires fewer toxins and it is capable of being recycled rather than normal paper. Plastic hemp could be a good substitute for plastic which is strong and environment friendly. Hemp seeds can be eaten raw and have great benefits. They can be used in salads. It is high in protein, Vitamin- E, fiber, improves health conditions, reduces inflammation, etc.
Hemp fuel being one of the by-products, believe it or not, fuel is also one of the by-products of industrial hemp, cultivation of hemp to get biomass fuel needs the least specialized growing and processing procedures of all hemp products. If someone told me that there is a plant within our reach that can cure cancer, depression, relieve pain then I would be over the moon thinking about it and getting hold of the plant, but all of this is a lost cause due to the plant still been banned, even after 36 years, we fail to understand the importance of this natural pain reliever.
Medicinal uses of industrial hemp
To understand the medicinal use of this magical plant or ‘drug’ as some people would derogatorily call it, we shall look at some stories of real-life individuals who had life-changing experiences after using marijuana in the form of hemp. It is extremely important to understand the practical aspects of things in life. When we speak out to legalize a particular thing we must be ready with our sets of arguments as to why we are persisting in decriminalizing marijuana it is because of stories like these that are pushing us to help more and more people.
Cannabis oil is a substance that is extracted from the cannabis plant which is high in THC and CBD, it is separated from the flower using a solvent extraction process. It is the most potent part of the plant out of the leaves, flowers, and resin.
- Jerry, who is a textile engineer in Bangalore suffers from Juvenile Myoclonic Epilepsy (painful quick jerks in the arms and legs occur mostly after waking up in the morning) started using the oil which did wonders for him, he started using oil in small quantities and the jerks reduced significantly. He also mentioned in the interview that he used to take medication prescribed to him by doctors which resulted in double vision, blank memory, loss of balance which diminished after he started using the oil.
- Varsha who is a musician had chronic cough and throat ache for the past six months. It was affecting her singing and she couldn’t get any help from anyone and turn to oil. She started using it as a vaporizer and gradually started ingesting the oil and within a week her pain was gone and hasn’t returned ever since.
People are using this oil for the treatment of cancer, depression, anxiety, bronchitis, autism, ADD, STDs, etc. One can grow and use it themselves if they have a small garden and with the right type of seeds, they can very well grow their own medicine and make it at home.
- Amit Vaidya is a two-time cancer survivor, who was going through chemotherapy back in 2009 and 2012 after his cancer had reappeared; he was advised by his doctors in the USA to start using CBD oil for relieving pain. He eventually started putting CBD oil in his food because the CBD compound helped in reducing the pain and inflammation. It helped him with nausea; he started eating well and slept pain-free.
- Aakanksha Saini whose 12-year-old daughter has been suffering from epileptic seizures started giving her doses of CBD oil which drastically affected her seizures because previously she was getting seizures in 2-3 days whereas now the time period has been prolonged to 40 days.
It’s truly fascinating and commendable to hear stories like these that inspire us to fight for this noble cause. There are not many stories like these although things would get much better if people knew about hemp oil and its benefits. However times are changing, Leaves and seeds of cannabis aren’t prohibited in the NDPS Act hence it is very important that we use these leaves and seeds and extract CBD which could help millions of people in need because of its magical healing powers and the fact that it is cost-effective. 34 countries have legalized medicinal use of marijuana including the UK, US (25 states) some even recreationally have been granted legislation.
Latest developments in India
In 2018, the Ministry of Health and Family welfare allowed the research on developing cannabis-based drugs for epilepsy, cancer, and sickle cell anemia in collaboration with AIIMS. In 2017, Uttarakhand became the first Indian state to legalise cannabis plants for medicinal and industrial production only with THC content 0.3 to 1.5%. Villagers in the state of Uttarakhand except for those living in Terai and Babhar are allowed to grow cannabis for medicinal and industrial purposes only. The conditions also state that they shall sell only to the state government and not private owners because of its chances of misuse.
In 2019, Madhya Pradesh Government decided to legalise cannabis cultivation just like the Uttarakhand state. The CM decided to take this action to legalise hemp cultivation for its industrial and medicinal use. Especially helping in making medication to treat cancer.
In 2020, Himachal Pradesh was the front runner in legalizing the cultivation of hemp. Rightly so since they are the cultural hub of the country with respect to Marijuana. Places like Parvati valley, Tosh, Kasol, Shimla, and Kullu where foreigners come round the year to smoke, have parties and chill. It is the right step towards making it a major cash crop replacing apples. It would make so much sense for the state of Himachal Pradesh to legalise hemp cultivation according to the report they hope to earn Rs.18,000cr annually by the cultivation of marijuana or industrial and medicinal hemp. Charas worth 960cr have been sold in the black market coming from Himachal and the legalization would only help to get money in the hands of the government and legitimate employment to the locals.
Latest developments in the world
The Commission on Narcotic Drugs (CND), the drug regulating department of the United Nations agreed to remove cannabis from Schedule IV of the 1961 Single Convention on Narcotic Drugs — where it was listed alongside specific deadly, addictive opioids, including heroin, recognized as having little to no therapeutic purposes.
53 members of the CND participated and took part in the voting with 27 voting in favour and 25 voting against it and 1 abstaining. With this move, CND has welcomed cannabis cultivation for medicinal and industrial use with open arms. Although for non-medical and non-scientific purposes it is still illegal, considering that the research will be undertaken by the UN body it is a great step towards a sustainable future.
Currently, more than 50 countries have adopted medicinal cannabis programmes while Canada, Uruguay, and 15 US states have legalized its recreational use, with Mexico and Luxembourg having political debates as to whether to follow that path. We can’t expect a significant and quick change in individual countries as they will have to sort it out amongst themselves by passing their regulations, as many nations follow the lead of international protocols while legislating. Surprisingly, India too voted in the majority to remove cannabis resin from the schedule of banned drugs, these are positive signs and we certainly only hope that by this vote things will change for the better in our country.
Countries that have decriminalized marijuana
This is the list of a few countries which have legalized marijuana either medically or recreationally or both as of 15th June,2020 :
|
Country |
Medical or Recreational |
|
Canada |
Both |
|
Uruguay |
Both |
|
Argentina |
Medical |
|
Australia |
Medical |
|
Barbados |
Medical |
|
Bermuda |
Medical |
|
Brazil |
Medical (for terminally ill patients) |
|
Germany |
Medical (for seriously ill patients) |
|
Ghana |
Medical (with THC content < 0.3%) |
|
Greece |
Medical |
|
Ireland |
Medical (under pilot program) |
|
Israel |
Medical |
The USA has recently legalized four more states including New Jersey, New York, Virginia, and, most recently, New Mexico that too for recreational use. 17 states, including Washington DC, have legalized Marijuana for recreational purposes. 43 percent of the total population has now access legally to Marijuana for medical and recreational use. This is a masterstroke by the USA because the Cannabis market is growing extensively Mexico and Canada have already legalized it and now almost half of the USA is now legalizing it.
The US marijuana industry is now valued at more than $18 billion, supporting the equivalent of over 300,000 full-time jobs, more than the total number of electrical engineers or dentists, according to the 2021 Leafly Jobs Report.
Indian start-up companies at the forefront of hemp revolution
-
Bombay Hemp Company(BOHECO)
It is a start-up from Bangalore that has become very famous in the hemp production industry. They have been assisting farmers in hemp cultivation by providing them with techniques and optimum seeds. They have a number of different hemp products that they sell with beauty products to hemp clothing, grooming products for men, hemp protein powder, hemp seed oil, etc.
-
Hemp Republic, Telangana
They cater to a variety of people all over India, they manufacture hemp oil, hemp seeds, powder, paper, etc.
-
Hempsters, Bangalore
They are specialized in body care, they provide luxurious, hand-made, body care products, so it’s authentic. They make soap bars, shower gels, balm butters and the best part about it is everything is made from hemp seeds.
-
Namrata Hemp Co.
They have brought an industrial revolution with respect to industrial Hemp production. Their products include hemp based-protein powder, hemp chocolate, hemp oil, and hemp flour to name a few.
Advantages of decriminalizing cannabis in the state of Maharashtra
-
Increasing revenue of the state
The commercial capital of the country is in Maharashtra. It is important that we should have a wide mindset instead of being narrow-minded. According to the survey done by ABCD in 2018, we are 6th all over the world in the consumption of Marijuana and it is not even legalized. That means people are buying, cultivating, and selling despite it being prohibited in the state. We do not expect it to be legalized for recreational use but for industrial and medicinal purposes, we can already see from its uses and examples given above how it has changed people’s lifestyles and how important it is to people. Up until now, only three states have legalized its production for industrial and medicinal purposes, Maharashtra could be the fourth state which will in turn increase the revenue of the state tremendously.
-
Generating employment
The government will have to employ people if they are setting up plants for manufacturing, including its research and development that would mean creating new job opportunities in this area. An increase in employment in the state would mean more revenue and fewer crimes. In June 2020 in a news report published by ‘The Indian Express’ experts said that due to the pandemic hitting the country there are high chances that crime rates might go up because of the surge in unemployment. Due to the shortage of money, and the economic apathy in states like Maharashtra for the poor, it’s very disturbing to see that people might end up doing crimes and anti-social activities.
-
Medical benefit
Slows down cancer, helps in relieving pain in arthritis patients, people who are wanting to reverse the carcinogenic effects of smoking can turn towards marijuana for help, PTSD, depression, and anxiety to name a few.
-
Industrial hemp
According to reports, it has been observed that the global Hemp market will probably grow from USD 4.6 billion in 2019 to USD 26.6 billion by 2025, recording a CAGR of 34%. Apart from all that hemp is a good alternative to plastic it is bio-degradable and non-toxic. It is important to focus on the use of hemp in the textile industry especially due to the use of hemp fiber and its benefits. The hemp revolution is creating awareness about the legalization of hemp and using it in industrial processes in industries like pharma, beverage, food cultivation, cosmetics, automobile, etc.
-
Great alternative to liquor and cigarettes
People who consume marijuana are less likely to cause ruckus or violence as compared to those who drink alcohol. Unlike liquor and cigarettes, marijuana actually has medical benefits, and doctors in the USA are providing medical marijuana as prescriptions for pain relief. Marijuana enhances an individual’s sense whereas alcohol makes a person numb. Consuming alcohol may lead to prolonged periods of depression and liver diseases, whereas marijuana is used to cure depression and anxiety and there hasn’t been any death reported with prolonged use of marijuana. Cigarettes are the major cause of lung and throat cancer, there are no reports of marijuana being one of the reasons for people dying from lung and throat cancer.
-
Benefit for the local farmer
Despite a loan waiver back in 2017 by our then CM Mr. Devendra Fadnavis there were 3927 farmer suicides in the country in 2019 highest of any state in India. Due to hail storms and severe droughts it has been difficult for them to repay the gigantic loans on them. It is difficult for farmers because they do not get the right price for their products and are often exploited by zamindars who charge high interest for their lands. The farmers find it difficult to repay the loan with interests and turn to suicide to get away from their problems. With hemp cultivation coming into picture as mentioned above it is a cash crop which requires considerably less amount of water and negligible amount of herbicides or pesticides it is the perfect solution to farmers problems in Maharashtra.
-
Change in economic aspect
Definitely if legalized it will be taxed at the same rate as the most popular cigarette brand, Cairo would earn gains worth $384.87 million. Looking at the fact that two of the major cities in India, New Delhi and Mumbai are in the top 10 in consumption means there are great revenue benefits for the government if it legalizes marijuana. Marijuana is a growing demand and a new market and most of the countries have now captured this market, India could be one of those countries in coming years. We can say that we have an abundance of high-quality Marijuana if the government can find ways in form of providing monetary benefits in the research and development of medicinal and industrial marijuana it can turn into tax revenues for the government and increase export market revenue. If we look at American numbers, legalization of recreational marijuana creates 6,208 new full-time jobs in retail and production of marijuana and generates a total labor income of $260,732,000. Cannabis production is not fully automated; it requires people to work in it so there’s a job potential for a lot of people in the country. Business owners also need lawyers to help them navigate new regulations in states that recently legalized Marijuana, as well as to act as lobbyists to pressure the other states in India to decriminalize marijuana.
Sample of the petition
IN THE HON’BLE COURT HIGH COURT OF BOMBAY AT MUMBAI
CWP NO _____ OF 2021
In the matter of :
Adv Shubhankar Sharma, Son of S.K Sharma resident of ________________ ……………..Petitioner
Versus
- State of Maharashtra, through the Chief Secretary, to the Govt of Maharashtra
- State of Maharashtra, through the Principal Secretary, Home Department, to the Govt of Maharashtra …………Respondents
Civil Writ Petition in Public Interest under
Article 226 of the Constitution of India for
Issuance of an appropriate Writ and order
Of direction, as deemed fit in the
Circumstances of the present case.
Respectfully showeth:
- The petitioner is a citizen of India and is hereby entitled to maintain this writ petition on the basis of facts and circumstances mentioned herein.
- There is no ulterior motive or self-gain with respect to the filing of this writ; it is purely based on the public good and in the larger interest of the public.
- The information present in this petition is taken from various articles, NDPS Act, journals, etc.
- That the state government is likely to be affected by the orders sought in this petition as they have been implemented as respondents. As per the petitioner’s knowledge, no other persons, bodies, institutions are likely to be affected by the order sought in this petition.
Prayer:
For the reasons stated above, it is the most respectfully prayed that this Hon’ble Court may be pleased to:
Issue a direction or order or writ including writ in the nature of mandamus or such other writ, order, or directions as may be necessary; directing the respondent’s state to:
- To remove restrictions and allow the usage of production of hemp for industrial and medical purposes in the state of Maharashtra for the benefit of local farmers.
- To make regulations and framing rules and legislation with respect to production of hemp.
- To set up and involve research institutes for providing research and development services for the benefit of Hemp production and cultivation in Maharashtra.
- To help farmers financially by allowing them and providing them with licensed hemp seeds for them to cultivate and eradicating opportunities of illegal trade by the drug mafia.
- To provide research and development funds to such institutes that are willing to provide their R&D services for the benefit of the crop.
- To establish or authorize a state licensing or registration program for growers and/or seed breeders.
- Creation of Advisory Board and commission for the regulation and control of the production of industrial hemp; and providing guidelines regarding the percentage of THC in the hemp.
- Issue a direction or order or writ including writ in the nature of mandamus, order or direction, directing the respondents to allow the cultivation, processing of industrial and medical hemp in the state of Maharashtra.
- Issue any such other writ, order, or direction as may be necessary, keeping in mind the interest of the farmers who can benefit from growing industrial and medical hemp.
Date: 27.06.2021
Petitioner
Through Council
Affidavit
I, Adv Shubhankar Sharma, Son of Mr. S.K SHarma, resident of ________________ aged about 25 years, occupation advocate, do hereby solemnly affirm and declare as under:-
- That the accompanying Writ Petition has been drafted at my instance and under my instructions. The contents of paras above of the Writ Petition are true and correct to the best of my personal knowledge.
- That I the above-named deponent do hereby verify that the contents of para 1 of the above affidavit are true, no part of it is incorrect and nothing material has been concealed therefrom.
Verified at Mumbai, Maharashtra on 27th June, 2021.
References
- https://indianexpress.com/article/india/un-decides-cannabis-not-a-dangerous-narcotic-india-too-votes-to-reclassify-7089562/
- https://www.vox.com/2021/4/12/22371929/marijuana-legalization-new-mexico-virginia-new-york-biden
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