Kapur, J. - (1.) The petitioner has challenged the order dated 27-7-87 passed by the Additional Sessions Judge No. 5. Jaipur City, Jaipur framing charge against the accused under Section 20 of the NDPS Act, 1985. According to him the case against him fells under Section 16/54 of the Rajasthan Excise Act and not under the NDPS Act.
(2.) The Excise Inspector searched the house of the petitioner on 24th Sept. 1987 and found one kilogram Bhang in a bag. This was in paste form and a machine for making paste of Bhang was also recovered from the site. After investigation, a challan was presented under Section 16/54 of the Rajasthan Excise Act. The Magistrate taking cognizance was of the opinion that the offence of the petitioner falls under Section 20 of the NDPS Act. Therefore, he committed the accused to stand trial before the Sessions Judge. Thereafter the Addl. Sessions Judge framed charge as stated above.
(3.) The relevant provision in this regard may be first looked into. Section 2(iii) of the NDPS Act defines 'cannabis (hemp)' 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 natural material, of any of the above forms of cannabis or any drink prepared therefrom; Cannabis plant is defined under Section 2 (iv) as under:- 2 (iv) "cannabis plant" means any plant of the genus cannabis; Section 20 of the NDPS Act prescribes punishment for contravention in relation to cannabis plant and cannabis, which reads as under:- 20. Punishment for contravention in relation to cannabis plant and cannabis:- Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder- (a) Cultivates any cannabis plant; or (b) produces, manufactures, possesses, sells, purchases, transports, imports inter-state, exports inter-State or use cannabis, shall be punishable - (i) Where such contravention relates to ganja or the cultivation of cannot is plant, with rigorous imprisonment for a term which may extend to five years and shall also be liable to fine which may extend to fifty thousand rupees; (ii) Where such contravention relates to cannabis other than ganja, 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 and 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.;