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Marijuana in India: A Legal Perspective

By RajasmitMondal | Legal Blog | 20 Jul 2021


What is Marijuana?

The dried leaves, flowers, stems, and seeds of the Cannabis sativa or Cannabis indica plant are referred to as marijuana. THC, a mind-altering substance, and other related chemicals are found in the plant. Hashish, ganja, and charas are all prohibited, and their possession is considered illegal.

As per Section 2 (iii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 cannabis(hemp) means:

  1. 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;
  2. 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
  3. any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink, prepared therefrom;

Marijuana is the most widely used illegal substance in the world, with over 125 million people using it in some form each year. Marijuana smoking has long been associated with faith and mysticism in India. It is considered to be a substance that allows the user to experience "ecstasy in the true sense of the word." For millennia, India has consumed charas (hash), bhang, and weeds. However, severe regulations were enacted in 1986, making the sale, consumption, manufacture, and transportation of marijuana illegal throughout the country.

Cultivation

Himachal Pradesh is projected to produce sixty thousand kilogrammes of hash and forty thousand kilogrammes of opium. However, only a small portion of it, around 500 kilogrammes every year, gets captured. According to reports, cannabis production is currently taking place on around 1600 hectares of productive agricultural land and 500 hectares of illegal public forests.

Why is it Illegal?

After twenty-five years of defying US pressure, India eventually caved into the demands of its Western counterpart in 1986, classifying marijuana among other dangerous substances and criminalising it.

Marijuana is classified as a Class 1 substance. Schedule 1 (Class 1) drugs, such as heroin, LSD, and cocaine, are outlawed because they have a high potential for misuse, have no medical purpose, and pose serious safety risks.

Possible Punishments for Marijuana Punishment

Section 20 of the NDPS Act, 1985, prohibits not just the consumption of cannabis, but also its production, possession, usage, sale/purchase, import/export, transit, and warehousing, unless for medical or research purposes.

  • A fine of up to one lakh rupees and harsh imprisonment of up to ten years may be imposed under section 20 in the case of cultivation.
  • A penalty of ten thousand rupees or a jail term of six months to one year is imposed for possession of minor quantities (100 grammes for charas and hashish, 1000 grammes for ganja).
  • If someone is caught with commercial quantities of marijuana (1 kilogramme for charas and hashish, 20 kg for ganja), the court can sentence them to up to twenty years in prison and a fine of Rs. 2 lakh.
  • A regular offender might potentially be sentenced to 30 years in jail at the discretion of the court. It is also not obligatory to hand away a mandatory death sentence for several convictions in circumstances of large-scale drug trafficking.
  • According to section 25, if a person intentionally permits his or her property to be used for committing an infraction under the NDPS Act, 1985, he or she will be subject to the same punishment as under section 20.
  • In the case of marijuana, Section 28 deals with attempts, abetment, and criminal conspiracy.

Because each state has the authority to control, permit, and regulate these activities, the laws may differ.

For example, under Uttar Pradesh excise legislation, someone might face a two-year prison sentence and a fine if they:

  1. Any intoxicant other than charas is imported, exported, transported, or possessed.
  2. Grow any type of hemp plant.
  3. Gathers or sells any part of the hemp plant.
  4. Collects or sells any part of the hemp plant that can be used to make any intoxicating substance.

Despite a legal prohibition, marijuana is still smoked in various ways by a growing number of people. This is due to the plant's uncontrolled growth in the wild in various areas across the country.

Exemption from Punishment Under the NDPS Act

  • If an addict volunteers for dead-diction, they will be discharged or protected from prosecution under section 64 if they are accused of using drugs under section 27 or with offences involving tiny amounts of drugs. If the addict does not complete treatment, the exception may be revoked (Article 64A).
  • The government of a state or the federal government can grant immunity to an offender in exchange for his testimony in a case. The administration, not the court, has granted this immunity (Article 64).
  • The Juvenile Persons Act will provide protection to minors who commit infractions of any law when under the age of 18. Instead of punishing such juveniles under other Acts, this Act tries to better them. In the case of people under the age of 18, it is superior to any other law. As a result, such individuals are immune from prosecution under the NDPS Act.

Why Have Authorities Failed to Impose Bans Properly?

Cannabis use is ingrained in the culture of the cultivators, and the area's steep topography makes it nearly impenetrable to law authorities, making it a refuge for drug smugglers.

  • A major challenge in dealing with the matter has been recognised as a lack of coordination between multiple institutions, such as the police and the Directorate of Revenue Intelligence (DRI).
  • Lack of coordination among many authorities, as well as a lack of political will, are important barriers in combating the threat.
  • The fact that enforcement organisations do not properly monitor the movements of foreigners is also an issue.
  • In many situations, it is discovered that the arrested person's passport has already expired, but investigators do not disclose this under foreigners' actions.

Observation

Even prescription medications that are normally beneficial have a history of being misused in India. Weak opiates (opium derivatives) are an easy-to-find alternative to cannabis for medical ailments. The opioid dextropropoxyphene was used in the painkiller Spasmo Proxyvon. Following surgery, tramadol is a common pain reliever. 

Despite the fact that codeine-based cough syrups are beneficial for managing severe cough, the Narcotics Control Bureau has ordered the Drug Controller General of India to decrease their availability due to widespread misuse. How do we ensure disciplined use of cannabis in the Indian setting, when prescription medications are grossly misused? Arguments about therapeutic or industrial use are just smokescreens to deceive politicians and sway public opinion.

Will legalisation exacerbate the strain on our already overburdened healthcare system? 

Tobacco, alcohol, and areca nuts are three addictive drugs that India is battling to control. According to the Global Adult Tobacco Survey, 270 million Indians consume tobacco and 1.35 million people die from it each year. Alcohol is consumed by about 30% of India's adult population, resulting in 3.3 million deaths. Cannabis legalisation will not only exacerbate these frightening figures, but it will also serve as a gateway for one of these carcinogens.

The younger generation is growing up in a period of personal autonomy, expanding income, increased addiction risk, and personal relationship difficulties. The introduction of yet another psychoactive drug will have disastrous consequences for a populace already afflicted by tobacco, alcohol, and pan masala. It seems improbable that the drug problem in Punjab, Rajasthan, and other states will be solved. 

Cannabis corporations' predatory marketing will disproportionately affect the most vulnerable populations, such as adolescents, the impoverished, the insecure, and the illiterate. It will create a large market once it is implemented, making following stricter rules impractical. 

Following the legalisation of marijuana in the West, a plethora of newer marijuana-infused goods are now available on the market and through internet portals without the need for a prescription. Marijuana chewing gums, candy, and other similar products are popular among teenagers.

Why did the US and Canada legalise it if the risks outweigh the benefits? 

Despite the fact that an increasing number of young people (albeit still a minority) support legalisation, most officials do not believe it is a cause worth fighting, even though it is a legitimate cause. 

In the United States, public opinion has been shaped by decades of misinformation, racial discrimination, police abuses, the severity of punishment, incarceration, and a desire for liberty, among other things. In addition, policymakers appear to be enthusiastic about a new source of money.

Conclusion

Party-poppers are portraying cannabis prohibition as a paternalistic nanny-state policy. However, promoting addiction and misery among millions is a high price to pay for the protection of a few people's liberty. 

We cannot allow our children and grandchildren to become engulfed in a vortex of bad performance, indiscipline, addiction, insanity, loneliness, insecurity, and a terrible future.

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RajasmitMondal
RajasmitMondal

Legal Researcher, Advisor and Writer


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