Cr. Appeal (S.J.) No. 726 of 2009, Jharkhand High Court

Neutral Citation: 2026:JHHC:19082 | Decided on 30 June 2026 | Coram: Justice Pradeep Kumar Srivastava

1. Factual Background and the Core Issue

The case can be traced to an occurrence that took place way back on 17 October 2000 when a patrolling police party apprehended the appellant Sunil Kumar Singh near the Chaibasa Bus Stand around the wee hours of the day. As per the prosecution, the appellant attempted to escape on realizing that he had been spotted by the police officers, and this raised suspicion on his part. After searching the VIP briefcase that the appellant had with him in the presence of two independent witnesses and a Gazetted Officer, the police recovered almost 11 kilograms of what they believed to be Ganja.

Based on this recovery, the appellant was prosecuted and ultimately found guilty of violating Sections 22(B), 20(B) and 11(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985. This resulted in a judgment that subjected the appellant to rigorous imprisonment for seven years and fined with Rs. 50,000 by the Special Judge-cum-Additional District and Sessions Judge (Fast Track Court-VI), Jamshedpur. On the surface, this may be perceived as just another narcotics offense. However, it is the Forensic Science Laboratory report that changes the dynamics of the case altogether.

However, the FSL report dated 29 November 2002 did not accept the version put forward by the prosecution. On the contrary, the report stated that the vegetable matter was Bhang and not Ganja. It did mention in passing that both Bhang and Ganja belong to one single species of the cannabis plant, and the State relied heavily on this botanical origin in its appeal. But the appellant contended that botanical origin of a substance cannot be the test; the test lies in the statutory definition of the prohibited substance.

And this formed the basic issue before the Jharkhand High Court – once it is established through the forensic report that the vegetable matter seized is Bhang and not Ganja, can there be a conviction under the NDPS Act on the mere ground that both belong to the same plant? Or, more precisely, would the possession of Bhang be an offence under the NDPS Act or had the legislature excluded it purposely from its purview?

2. Statutory Interpretation

All depends on the interpretation of Section 2(iii) of the NDPS Act which has three sub-clauses defining “cannabis (hemp)” in totality. Clause (a) provides that “Charas” means the separated resin of the cannabis plant, whether crude or purified, wherever it is found and whichever form it may be, including resin extracted from mature stalks of the cannabis plant and concentrated forms of such resin, by whatever name called. Clause (b) provides that “Ganja” means the flowering or fruiting tops of the cannabis plant, except the seeds and leaves when detached from the top, whether the tops contain leaves not exceeding 3% and whether it is by whatever name called.

Missing from this list, however, is Bhang. There is no provision (d) bringing under the ambit of the definition leaves and seeds in general, nor any residual provision which might be used to do so. This absence was of great significance to the Court, rather than something that can be brushed off as an inadvertent omission. The reasoning behind this is that since the definition of Ganja excludes leaves and seeds where they are not accompanied by flowering tops, and Bhang is, in reality, a substance extracted from just such leaves, then Bhang lies entirely beyond all the three provisions of Section 2(iii).

However, the State’s contention that the FSL report indicated that Ganja and Bhang had a common parent plant did not find favour with the Bench. According to Justice Srivastava, there was no scientific evidence placed before the Court which showed that the Bhang seized in this case was prepared using either Charas or Ganja. Merely sharing a botanical ancestry does not mean that the substance comes within a penal definition that is defined with great precision. Penal laws have to be strictly construed, and courts cannot broaden a definition on the basis of scientific similarity.

The judgment goes a step further and notes that nowhere in the NDPS Act is Bhang referred to as a prohibited drink or a prohibited drug. It also records that the State Government had not framed any rules under the Act, nor issued any notification, bringing Bhang within a prohibited category. The Court did clarify, however, that this exclusion is limited to the NDPS Act; it does not touch the cultivation offence under Section 20(a) read with sub-clause (b)(i), which criminalises growing the cannabis plant itself. Since this case involved possession and not cultivation, that provision was not really in play here.

3. High Court Consensus and the Supreme Court’s Position

The one clear point that comes to mind while analyzing this judgment is that it is not based on a stand-alone principle established by the Jharkhand High Court. The counsel for the appellant has referred to decisions made by the High Court of Karnataka, the High Court of Punjab & Haryana, the Bombay High Court, and the Rajasthan High Court, who have all come to the same conclusion, namely that Bhang is not within the definition of cannabis under the NDPS Act. For example, the Bombay High Court has stated separately that ‘Ganja’ under Section 2(iii)(b) means only the flowering or fruiting tops of the plant and does not include leaves, seeds, stalks or stems, except insofar as they are accompanying the tops. Similarly, long-established judgments of the Rajasthan High Court have held that ‘Ganja’ under this section means only the tops of the cannabis plant.

The more important issue, at least in terms of the research, would be how the position of the Supreme Court is with regard to this particular issue. A thorough search of the case law and the commentaries will not reveal any decision made by the Supreme Court which clearly and explicitly decides that bhang cannot be considered to be cannabis (hemp), as per Section 2(iii). What seems to have occurred is that the Supreme Court was never asked to reverse the uniform opinion of the High Courts, and this became the law by reason of constant repetition.

The above holds significance as far as the authority of the Jharkhand judgement is concerned. Judgements made by coordinate High Courts have no binding force on each other, but whenever four-five High Courts interpret any particular provision of law in the same manner during a considerable period of time and the Supreme Court does not intervene to rectify their interpretation, such practice itself acquires the form of persuasive authority which trial courts and investigative agencies have to follow. Moreover, the door is never permanently closed in these cases. In case the Supreme Court considers this matter in its jurisdiction or Parliament decides to make changes in the definition of ‘opium’ given under Section 2(iii) to include Bhang, leaves and seeds in the list, the prevailing law may get altered.

Concluding Remark

In this light, the case of Sunil Kumar Singh is an appropriate example illustrating how the whole prosecution against a narcotics violation could be invalidated purely because of forensic errors that could have been prevented if the investigating authorities had given due attention to the matter. In this case, the accused had already been serving his seven year term before the findings of the FSL were considered at the appeal stage, indicating the need for courts to examine scientific evidence in detail.