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Legalisation of Marijuana: An Insight into the NDPS Act

Marijuana is also called weed, herb, pot, grass, bud, ganja, Mary Jane, and a vast number of other slang terms�is a greenish-gray mixture of the dried flowers of Cannabis sativa. Some people smoke marijuana in hand-rolled cigarettes called joints; in pipes, water pipes (sometimes called bongs), or in blunts (marijuana rolled in cigar wraps).1

Marijuana can also be used to brew tea and, particularly when it is sold or consumed for medicinal purposes, is frequently mixed into foods (edibles) such as brownies, cookies, or candies. Vaporizers are also increasingly used to consume marijuana. Stronger forms of marijuana include sinsemilla (from specially tended female plants) and concentrated resins containing high doses of marijuana's active ingredients, including honeylike hash oil, waxy budder, and hard amberlike shatter. These resins are increasingly popular among those who use them both recreationally and medically.

The main psychoactive(mind-altering) chemical in marijuana, responsible for most of the intoxicating effects that people seek, is delta-9-tetrahydrocannabinol (THC). The chemical is found in resin produced by the leaves and buds primarily of the female cannabis plant. The plant also contains more than 500 other chemicals, including more than 100 compounds that are chemically related to THC, called cannabinoids.

Marijuana and The NDPS Act
There are three legislations that determine punishment if you are caught carrying weed in India. These are:
  • The NDPS Act, 1985
  • The Juvenile Justice (Care and Protection) Act, 2000
  • State laws
    The NDPS Act is the main legislation that deals with drugs and their trafficking. Various provisions of the Act punish production, manufacture, sale, possession, consumption, purchase, transport, and use of banned drugs, except for medical and scientific purposes.
Section 2 of The NDPS Act defines cannabis (hemp) as a narcotic drug based on the parts of the plant that come under its purview. The Act lists these parts as d efines cannabis (hemp) as a narcotic drug based on the parts of the plant that come under its purview. The Act lists these parts as:
  1. Charas:
    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:
    The flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they be known or designated.
  3. Any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom.
The Act, in its definition, excludes seeds and leaves "when not accompanied by the tops". Bhang, which is made with the leaves of the plant, is not mentioned in the NDPS Act.

However, Bhang does not fall within the definition of cannabis (hemp) as defined under Section 2 (iii) of NDPS Act, 1985. This issue has been discussed at length in various judgments of various courts.[2,3,4] Hence, the provisions for various narcotic and psychotropic substances under the NDPS Act, 1985, are not applicable to the cannabis in bhang form. The National Policy on Narcotics and Psychotropic Substances acknowledges this fact and goes on to mention that the 'production and sale of Bhang is permitted by many State Governments'.

The production, sale, purchase, transportation, interstate import/export, or any other commercial activity of cannabis is illegal under Section 20 of the Narcotic Drugs and Psychotropic Substances Act of 1985. The intention of drug possession is irrelevant, and the punishment is determined by the quantity of drugs in possession. Therefore, out of the two ingredients of crime i.e., actus reus and mens rea, only actus reus is enough to prosecute a person under this Act.

If a person is arrested with drugs or is found to be a drug addict, he or she will not be prosecuted if he or she agrees to go through de-addiction treatment voluntarily. If you permit your property to be used for cultivation, you will be liable under Section 25 of the NDPS Act and will face the same penalties as stated under Section 20 of the NDPS Act, 1985.

While, Section 27 lays down the punishment in cases of consumption of any of the narcotic drugs or psychotropic substances.

On the other hand, Section 28 states the punishment for an attempt to commit an offence mentioned under the NDPS Act. It is thereby stated that whoever attempts to commit any offence punishable under this Chapter or to cause such offence to be committed and in such an attempt does any act towards the commission of the offence shall be punishable with the punishment provided for the offence.

Legalisation of Marijuana
The use of cannabis for recreational purposes is prohibited in most countries; however, many have adopted a policy of decriminalization to make simple possession a non-criminal offense (often similar to a minor traffic violation). Others have much more severe penalties such as some Asian and Middle Eastern countries where possession of even small amounts is punished by imprisonment for several years.

Countries that have legalized recreational use of cannabis are Canada, Georgia, Malta, Mexico, South Africa, Thailand, and Uruguay, plus 19 states, 2 territories, and the District of Columbia in the United States and the Australian Capital Territory in Australia. Commercial sale of recreational cannabis is legalized nationwide in three countries (Canada, Thailand, and Uruguay) and in all subnational U.S. jurisdictions that have legalized possession except Washington, D.C. A policy of limited enforcement has also been adopted in many countries, in particular the Netherlands where the sale of cannabis is tolerated at licensed coffeeshops.

However, There is no complete ban on cannabis under NDPS Act and it can be used for medical, scientific, industrial, horticultural purposes by taking requisite permissions from respective state governments.

Odisha is one such State in India where marijuana is legal, and residents typically use 'chillums' to enjoy it within the State's borders.

Uttarakhand is the first Indian State to legalise commercial hemp farming. Many other hilly states are considering allowing regulated production of hemp and marijuana because it is a rich crop that requires less water.

In Assam, the sale, possession, purchase, and consumption of ganja and bhang are all prohibited under the Assam Ganja and Bhang Prohibition Act, 1958.

In Maharashtra, the Bombay Prohibition Act of 1949 makes it illegal to manufacture, possess, or consume bhang and bhang-containing substances without a licence.

The government in India can choose to legalise weed. Legalising weed would be more beneficial than harmful for India.

If India establishes a legal market, it would provide greater safety and product quality assurance. As a result, the chance of being victimised while buying weed, the risk of being sanctioned, search costs (particularly for first-time purchasers), and the psychological discomfort associated with purchasing an illegal good is all reduced. From the consumer's perspective, this translates to lower quality-adjusted relative prices. Furthermore, once the market is legalised, retail prices would fall on average due to reducing supply-side risk. Given that cannabis is a commonly consumed item, lowering its price should result in more consumption.

Secondly, legalisation of weed would bring in a lot more tax revenue. It is a rich crop, i.e., high in monetary value. Moreover, there would be generation of employment once the government regulates it. It would lead to job creation. So, one good reason for legalisation is the potential economic benefits of marijuana's regulated commercial availability. Increased tax income, employment creation, and investment opportunities are all compelling reasons to support legalisation.

Thirdly, we will be able to tap into the medicinal and therapeutic benefits of weed. Government can allow research and clinical trials.

Fourthly, the environmental benefits of decriminalisation of weed in India cannot be ignored. Not only can we use the plant for medicinal purposes, but we can also use it to replace over 50,000 products currently in use in society that cause an entire chain of environmental harm from extraction to processing to manufacturing to transportation to consumption to disposal and recycling into eco-friendly, biodegradable, renewable alternatives.

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