The Complex Legal Landscape of Cannabis in India

The Legal Complexities of Cannabis in India

The Kerala High Court recently dismissed a petition involving a man caught with five cannabis plants on his terrace. The individual argued that the absence of “flowering or fruiting tops” meant the plants couldn't be classified as ganja, which is illegal under the NDPS Act. However, the court clarified the law, emphasizing that while “ganja” refers to the flowering tops of cannabis, the cultivation of any cannabis plant is banned, irrespective of its flowering state. This ruling highlights a critical point: even if certain parts of the cannabis plant are not classified as narcotics, growing the plant remains illegal in India.

Understanding Cannabis Definitions Under the NDPS Act

The Narcotic Drugs and Psychotropic Substances (NDPS) Act of 1985, formulated under global influence, does not outlaw all parts of the cannabis plant. Instead, it defines “cannabis (hemp)” with precision:

• Charas: The resin extracted from the cannabis plant, including hashish oil.
• Ganja: Only the flowering or fruiting tops of the plant.
• Excluded: The seeds and leaves, provided they are not accompanied by the tops.

This legal framework criminalizes the intoxicating parts—resin and flowering tops—but not the seeds and leaves alone.

Bhang and the Leaves-and-Seeds Exception

Bhang remains legal in India due to a specific loophole: the NDPS Act excludes cannabis leaves and seeds from its definition of “cannabis.” As bhang is derived from these leaves, it is not considered a narcotic substance, unlike charas and ganja. However, regulation of bhang is left to the discretion of state governments. For example, states like Uttar Pradesh and Rajasthan have licensed bhang shops, whereas Assam has imposed a ban.

The Illegality of Home Cultivation

Despite the legality of cannabis leaves under the NDPS Act, growing the plant itself is prohibited. The Kerala High Court's decision reinforced this by referencing Section 8(b), which bans cannabis cultivation unless specifically authorized for medical or scientific purposes. The law broadly defines a “cannabis plant” as any plant of the genus cannabis, without discriminating between flowering and non-flowering plants. Cultivation encompasses everything from gardening a plant in pots to full-scale farming.

Penalties for Cannabis-Related Offenses Under the NDPS Act

The NDPS Act prescribes varying punishments based on the type and quantity of cannabis:

• Small quantity: Up to 1 kg of ganja or 100 g of charas may lead to a penalty of up to 1 year in jail, a ₹10,000 fine, or both.
• Commercial quantity: 20 kg or more of ganja or 1 kg or more of charas could result in 10–20 years of rigorous imprisonment plus a ₹1–2 lakh fine.
• Intermediate quantity: Punishable by up to 10 years in jail and a ₹1 lakh fine.
• Cultivation: Even a few plants can result in up to 10 years of rigorous imprisonment and a ₹1 lakh fine.

In essence, penalties increase significantly with the quantity, and cultivation itself is seen as a major violation.

Legal Cultivation Exceptions in India

Although cultivation is generally banned, the NDPS Act allows for industrial and medical exceptions. Section 14 permits the government to authorize cultivation for specific purposes like fiber, seeds, horticulture, or medical research. For instance, Uttarakhand became the first state in 2018 to license industrial hemp, a low-THC cannabis variety. Similar permissions have been granted in Uttar Pradesh, Himachal Pradesh, and Madhya Pradesh. The Union government has also issued licenses to scientific bodies such as CSIR for medical research. Additionally, India’s first medical cannabis clinic opened in Bengaluru in 2020, offering cannabis-based treatments for certain conditions.