Why growing a cannabis plant in your balcony is a crime, but buying bhang isn’t

The ruling clarifies a common confusion regarding the plant in India: while certain parts of cannabis are technically exempt from the definition of a “narcotic drug”, the act of growing the plant remains strictly prohibited.

What exactly is ‘cannabis’ under Indian law?

In 1985, India enacted the NDPS Act, largely succumbing to international pressure – specifically from the United States – to criminalise a substance that had always been a part of Indian culture. However, the law did not impose a blanket ban on every part of the plant.

Section 2(iii) of the NDPS Act defines “cannabis (hemp)” to mean both charas, ganja and any mixture or drink prepared from the two. It defines charas as the “separated resin, in whatever form… obtained from the cannabis plant” – including hashish oil. Ganja is defined as the “flowering or fruiting tops of the cannabis plant.” This definition excludes “the seeds and leaves [of the plant] when not accompanied by the tops”.

The bhang loophole

This exclusion of leaves and seeds is what creates the legal space for bhang – the edible preparation made from the leaves of the cannabis plant, often consumed during festivals like Holi and Maha Shivaratri.

Because the NDPS Act does not classify leaves as “cannabis”, bhang does not fall under the definition of a “narcotic drug” or “psychotropic substance”. Therefore, while the production, possession, selling, purchase and use of cannabis is an offence under the act, bhang is excluded from its purview.

But this does not mean bhang is unregulated. The National Policy on NDPS clarifies that while the production of bhang is not covered by the Act, it is subject to state laws. The Act allows state governments to permit and regulate the cultivation of cannabis plants and the production, possession, consumption and transport for industrial purposes or for obtaining fibre and seeds.

Consequently, states like Uttar Pradesh and Rajasthan license authorised dealers to sell bhang, while other states, such as Assam, have banned it entirely under local laws.

Why can’t you grow cannabis at home?

If cannabis leaves are not covered by the NDPS Act, why can one not grow a plant to harvest them? This is where last week’s Kerala High Court order becomes significant.

Section 8(b) of the Act prohibits the cultivation of any cannabis plant except for medical or scientific purposes and in the manner prescribed by the government. The court noted that the definition of a “cannabis plant” in Section 2(iv) of the act is “any plant of the genus cannabis.”

The court ruled that the statute does not distinguish between a plant with flowers and one without – the offence lies in the Act of cultivation itself. The petitioner’s argument that growing plants in pots does not constitute “cultivation”, which usually implies agriculture, was also rejected. The court referred to legal dictionaries to establish that “cultivate” encompasses raising or gardening a plant, whether in a field or a flower pot.

In short, you may buy bhang legally from a government-authorised shop, but growing the plant that produces those leaves is an offence.

Punishment and quantity

The punishment for cannabis-related offences under the Act is graded as “small” and “commercial”, based on the quantity of the drug involved.

For ganja, “small quantity” is up to 1 kg. For charas, it is up to 100 grams. Getting caught with a small quantity can lead to rigorous imprisonment of up to one year, a fine of Rs 10,000 or both.

“Commercial quantity”, for ganja, is at least 20 kg; for charas, it is 1 kg or more. This attracts rigorous imprisonment of 10 to 20 years and a fine of Rs 1 lakh to 2 lakh.

For any offence involving a quantity between small and commercial, the punishment can extend to 10 years in jail and a fine of Rs 1 lakh.

Cultivating the plant – as in the Kerala case – attracts rigorous imprisonment of up to 10 years and a fine of up to Rs 1 lakh.

Industrial and medical exceptions

Despite its strict prohibition, the Act provides windows for legal cultivation. Section 14 of the act empowers the government to permit the cultivation of cannabis exclusively for horticultural and industrial purposes, such as obtaining fibre or seed, or for medical use.

This provision has allowed states like Uttarakhand to legalise the cultivation of industrial hemp – a strain of the cannabis plant with very low levels of Tetrahydrocannabinol, the psychoactive compound that gets users “high”. In 2018, Uttarakhand became the first state to issue licences for hemp cultivation, followed by Uttar Pradesh, Himachal Pradesh and Madhya Pradesh.

The Union government has also issued licences to scientific bodies like the Council of Scientific and Industrial Research to grow cannabis for medical research. In 2020, India’s first medical cannabis clinic opened in Bengaluru, prescribing cannabis-based medicines for specific ailments.

Since 2019, the Delhi High Court has been hearing a petition by the advocacy group called Great Legalisation Movement India Trust, challenging the ban on cannabis, arguing that the restrictions are unscientific and arbitrary.