Growing cannabis is offence under NDPS Act, whether in soil or in pots: Kerala High Court

The Kerala High Court recently held that cultivating cannabis plants in pots on the terrace of a rented building amounts to an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). [Jatin v State of Kerala]

Justice CS Dias observed that even if the cannabis plants are grown in pots rather than directly in the soil, such an act would fall within the meaning of 'cultivating a cannabis plant' as prohibited under Section 8(b) of the NDPS Act and punishable under Section 20(a) of the NDPS Act 

The judge clarified that the NDPS Act makes no distinction between growing the plant in earth or in pots and the key factor is the conscious act of growing the plant and nurturing it in violation of the law.

"The above literal meanings clearly indicate that the expression 'cultivate any cannabis plant' used in Sections 8 (b) and 20 (a) of the Act encompasses any act of planting, tilling, raising, growing, farming or gardening a cannabis plant with the mens rea, whether such cultivation is carried out in the earth or in a pot. The statute does not distinguish between planting in the earth or growing in pots. The essence of the offence lies in the conscious act of planting and nurturing a cannabis plant in contravention of the provisions of the Act," the Court added.

The Court made these observations while dismissing a plea seeking to quash the NDPS case filed against one Jatin accused of cultivating cannabis plants on the terrace of a rented building in Thiruvananthapuram.

According to the prosecution, Excise officials had record information that Jatin was cultivating cannabis on the terrace of a rented building.

A search led to the seizure of 5 cannabis plants, two measuring 59 cm and three measuring between 29 and 46 cm, along with 5 grams of ganja seeds and dried branches from Jatin's bedroom.

Proceedings were initiated against Jatin before the Additional Sessions Court at Thiruvananthapuram for offences punishable under Section 8(c) read with Sections 20(a)(i) and 20(b)(ii)(A) of the NDPS Act.

Jatin moved before the Kerala High Court against the proceedings. He argued that the seized plants lacked flowering or fruiting tops and hence, did not fall under the definition of 'ganja' or 'cannabis plant' under Sections 2(iii)(b) and (iv) of the NDPS Act.

It was also argued that the 'cultivation of cannabis' under Section 20(a)(i) referred only to growing plants in soil/ earth and not in pots and that the material seized comprised only of leaves and seeds which were not sufficient to attract the offence under Section 20(b)(ii)(A).

The public prosecutor strongly opposed the plea stating that the accused was caught red handed with the cannabis plants and ganja from the rented premises, clearly establishing his guilt in committing the serious offences.

After examining the statutory provisions and judicial precedents, the Court clarified that the NDPS Act drew clear distinction between a 'cannabis plant' and 'ganja'.

It observed that while the provision defining 'ganja' specifically denoted flowering or fruiting tops of the cannabis plant, the term 'cannabis plant' meant any plant of the genus cannabis.

Therefore, the presence or absence of such tops was immaterial for determining whether an offence under Section 20(a)(i) (punishment for cultivation of cannabis plant) was attracted.

"Furthermore, Section 8(b) of the Act explicitly prohibits the cultivation of a cannabis plant, and Section 20 imposes separate punishments for (a) cultivating cannabis and (b) possessing, selling or purchasing cannabis. Therefore, it stands beyond any pale of doubt that the expressions ‘cannabis plant’ and 'ganja' denote two distinct entities/species within the framework of the Act," the Court added.

It also noted that the NDPS Act did not define the word 'cultivate'.

Hence, the Court clarified its meaning by referring to Law Lexicon and Stroud’s Judicial Dictionary of Words and Phrases which stated that cultivation included planting, raising or growing the cannabis plant, whether done in the soil or in a pot.

Lastly, on the question of whether the accused resided in the premises and whether the seized material contained flowering tops, the Court observed that these were factual questions to be adjudicated during trial and that the Court was only limited to considering whether a prime facie case existed against the accused under the alleged offences.

The Court concluded that the allegations against the petitioner prima facie pointed to commission of offences under the NDPS Act and hence, dismissed the petition.

Advocates Suman Chakravarthy, KR Rija, Brejitha Unnikrishnan, Surya R, Sudeesh KE and Prahladh SP appeared for the petitioner.

Senior public prosecutor CS Hrithwik represented the State.

[Read Order]