In this article, Sarthak Modi discusses the punishment for possession of marijuana.

What is Marijuana?

Marijuana refers to the dried leaves, flowers, stems, and seeds from the Cannabis sativa or Cannabis indica plant. The plant contains the mind-altering chemical THC and other similar compounds. Different forms such as hashish, ganja, charas are banned and their possession is deemed to be unlawful.

According to section 2 (iii) of Narcotic Drugs and Psychotropic Substances Act, 1985 cannabis (hemp) means :

• Charas which is the separated resin, whether in the crude or purified form, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish.
• Ganja is the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops).
• Any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared from that place.

Marijuana is the most commonly used illegal drug in the world, with about 125 million people consuming it in one form or another every year. In India, the use of marijuana is historically linked to faith and mysticism. It is said that it is a drug that helps the user to get “ecstasy in the original sense of the word”. India is consuming charas (hash), bhang and weeds for centuries. However, the implementation of strict laws in 1986 made the sale, consumption, production, and transport of marijuana in the country illegal.

Cannabis cultivation in India

It is estimated that sixty thousand kg of hash and forty thousand kg of opium are produced in Himachal Pradesh. But only a small fraction of it is seized i.e. approximately five hundred kg annually. According to reports, there are currently more than sixteen hundred hectares of arable agricultural land and five hundred hectares of illegal public forests under cannabis cultivation.

• In the small towns of Himalayas, the plant is considered as part of their tradition and empathizes with people in steep, remote villages who consider cannabis the only cash crop they can grow in severe weather and geographic conditions.
• Marijuana grows wild in Indian Himalayas, and it’s almost impossible to fight its illegal cultivation.
• After the harvest of cannabis indica, farmers spend hours slowly rubbing the resin from the plant’s flowers to create charas, a kind of hash that is considered to be one of the best in the world. It can cost up to twenty dollars per gram in the West. Cannabis is illegal in India, but many villagers have indulged themselves in the cultivation of this plant as the market price of this plant only rises with time.
• Most fields are small, and fifty buttons of Cannabis produce only ten grams of Malana cream.
• In addition, it is quite easy to buy Marijuana in India and its consumption is widespread among the youth. It is therefore fair to say that the ban did not curb the problem.
• In India, merchants often mix cannabis and weed with chemicals or other substances, to improve the taste, color, texture or “high” of the good. Legalisation will improve the quality of Marijuana sold to users, as the government will regulate the production and sale of the drug.
• In states like Himachal Pradesh and Tamil Nadu, where cannabis plants grow, marijuana is the only source of income for many local residents. But as a prohibited drug, farmers are forced to sell it to the drug dealers at a very cheap price.
• They also receive additional pressure from the police, who are paid to destroy the cannabis plantations. By legalizing marijuana, this ‘war on drugs’ will end.
• Marijuana has used dozens of medical benefits. It prevents cancer spread to other parts of the body, reduces anxiety, retards the progression of Alzheimer’s disease, improves metabolism, and even promotes creativity in our brain.

Why is possession of Marijuana illegal?

After withstanding the United States’ pressure for twenty-five years, India finally gave into the demands of its Western counterpart in 1986 by clubbing marijuana with other hard drugs and criminalizing it.

Marijuana is included as a Class 1 drug. Schedule 1 (Class 1) drugs are illegal because they have high abuse potential, no medical use, and severe safety concerns; for example, narcotics such as Heroin, LSD, and cocaine.

Punishment for possession of marijuana

Section 20 Of the NDPS Act, 1985 deals with the offenses related not only to the consumption but also cultivation, possession, use, sale/purchase, import/export, transportation and warehousing of cannabis, except for medical or scientific purposes.

• Under section 20, In the case of cultivation, a fine of up to one lakh rupees and rigorous imprisonment of up to 10 years might be levied.
• For possession of small quantities (100 grams for charas and hashish, 1000 grams for ganja), a penalty of ten thousand rupees or a jail term of 6 months to 1 year.
• If someone is caught with commercial quantities (1 kg for charas and hashish, 20 kgs of ganja), the court can serve a stern imprisonment for up to twenty years and pay a fine of two lakh rupees.
• Courts also at their own discretion can penalize a regular offender for a 30-year imprisonment term. It is also not compulsory to give away a mandatory death sentence for repeated convictions in cases of trafficking large quantities of drugs.
• Section – 25 states that if a person knowingly allows one’s premises to be used for committing an offense under NDPS Act, 1985 he will be deemed to the same punishment as under section- 20.
• Section – 28 deals with attempts, abetment and criminal conspiracy with regard to marijuana.

The laws might vary from one State to another as each State has the power to control, permit and regulate these activities.

For instance, under Uttar Pradesh excise rules there’s a potential prison term of two years and payment of a fine if someone:

(a) Imports, exports, transport or possess any intoxicant other than charas.

(b) Cultivated any hemp plant (cannabis sativa).

(c) Collects or sells any portion of the hemp plant (cannabis sativa).

(d) Collects or sells any portion of the hemp plant (cannabis sativa) from which any intoxication drug can be manufactured.

In spite of a legally enforced ban, marijuana is still used in various forms by an ever-increasing consumer base. This is primarily because the plant grows unchecked in the wild in several states across the country.

View of NDPS Act on Bhang

Bhang does not fall within the definition of cannabis (hemp) as defined in section 2 (iii) of the NDPS Act, 1985. The act only prohibits the use of certain parts and preparations of the cannabis plant, namely hash resin created from the plant or its buds. The act provides for the use of the leaves of the plant, the precise element used in bhang.

This case has been discussed in detail in various judgments of different courts. In 2004, for example, a local court in the state of Haryana, ruled that “bhang does not fall under the definition of cannabis” in the law. Thus, its possession is not an offense that is punishable under the law.

Therefore, the provisions for different narcotics and psychotropic drugs under the NDPS Act, 1985, do not apply to cannabis in bhang form. The National Drugs and Psychotropic Substance Policy acknowledges this fact and further states that ‘the production and sale of Bhang is allowed by many state governments.

Exemption in certain cases

• Addict accused of using drugs under section 27 or with offenses, including small quantities, will be released or protected against any prosecution if they volunteer for dead-diction. This exception can be withdrawn if the addict does not take full treatment (Article 64A).
• State or Central governments can provide immunity to an offender to get his testimony in the case. This immunity is allowed by the government and not by the court (Article 64).
• Minors, violations committed under any law by individuals under the age of 18, will be protected by the Juvenile Persons Act. This Act aims to improve such juvenile instead of punishing them under the various Acts. It is superior to any other law in respect of people under the age of 18. Therefore, such persons cannot be prosecuted under the NDPS Act as well.

Why has the authority not been able to impose the ban properly?

Cannabis consumption is inherent in the culture and the hilly terrain makes the area almost inaccessible to enforcement agencies, making it a safe haven for drug traffickers.

• Lack of coordination between different authorities such as the police and the Directorate of Revenue Intelligence (DRI) was also identified as a major problem in dealing with the problem.
• Lack of coordination between different agencies and political will are major roadblocks to combat the threat.
• The fact that there is a lack of proper monitoring of the movements of foreigners by the enforcement agencies is also the problem.
• In many cases, it is found that the passport of the arrested person has already expired, but investigative agencies did not discuss it under foreigners’ actions.

Medicinal use of Marijuana – Does Indian legal system comply with this provision?

It is a well-known fact that marijuana has several medicinal benefits. Studies have shown that marijuana use has dozens of medical benefits. It treats glaucoma, prevents cancer from spreading to other parts of the body, reduces anxiety, slows the progress of Alzheimer’s disease, improves metabolism and is even said to spur creativity in our brain. The NDPS Act allows the medical use of narcotic drugs and psychotropic substances.

View of other countries on possession of marijuana

While in most of the countries selling marijuana and consumption is illegal, Uruguay and several states in the USA have legalized the cultivation of cannabis for recreational or medical use in recent years.

The Netherlands has long pursued a policy where the police do not take any legal action against use and sale of Cannabis under certain strict conditions.

However, the Single Convention on Narcotic Drugs prohibits countries to legitimize marijuana except for medicinal uses.

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