BNSS inherent powers

1. Why there is so much confusion about cannabis law in India

Socially and culturally, cannabis has been part of India for centuries. At the same time, the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is one of the strictest anti-drug laws in the world.

This creates three very common doubts:

1. If bhang is openly sold, how is cannabis “banned”?
2. Is it really illegal to grow just a few plants at home, even in pots on the terrace?
3. Do small, non-flowering plants count as “ganja” or “cannabis plants” under NDPS?

A recent judgment of the Kerala High Court in Jatin v. State of Kerala, 2025:KER:83177 (Crl. M.C. No. 8469 of 2025) directly answers these questions and settles several grey areas in favour of a strict interpretation against cultivation.

This post brings together the statutory scheme and the latest case law to explain the current legal status of cannabis in India, especially after Jatin.

2. Statutory framework: how the NDPS Act classifies cannabis

2.1 Key definitions – Section 2 NDPS Act

Under Section 2(iii), “cannabis (hemp)” is defined to cover three things:

1. Charas – separated resin from the cannabis plant, including hashish oil.
2. Ganja – only the flowering or fruiting tops of the cannabis plant, excluding seeds and leaves when not accompanied by the tops.
3. Any mixture of the above forms or any drink prepared from them.

Separately, Section 2(iv) defines “cannabis plant” as any plant of the genus Cannabis. There is no requirement in this definition that the plant must have flowers or fruits.

This distinction – between “ganja” (flowering tops) and the broader category “cannabis plant” – becomes crucial in Jatin.

2.2 Core prohibitions – Section 8 NDPS Act

Section 8(b) NDPS lays down a clear prohibition:

No person shall cultivate the opium poppy or any cannabis plant…

So even before we look at quantities and punishment, the act of cultivation itself is banned, unless permitted for specific purposes.

2.3 Punishments – Section 20 NDPS Act

Section 20 prescribes penalties for two broad situations:

1. Section 20(a) – cultivates any cannabis plant
   • Punishment: rigorous imprisonment up to 10 years + fine up to ₹1 lakh.
2. Section 20(b) – deals with cannabis (charas/ganja) by producing, manufacturing, possessing, selling, purchasing, transporting, etc.
   • Small quantity (e.g. up to 1 kg ganja, 100 g charas): up to 1 year or ₹10,000 fine or both.
   • Intermediate quantity: up to 10 years + ₹1 lakh fine.
   • Commercial quantity (e.g. 20 kg ganja, 1 kg charas or more): 10–20 years RI + fine between ₹1–2 lakh (or more with reasons).

So, cultivation of cannabis plants is treated as a serious standalone offence, irrespective of commercial quantity.

3. Why bhang is legal but cannabis cultivation is not

3.1 The “leaves and seeds” gap

The NDPS Act does not ban every part of the cannabis plant. Under Section 2(iii)(b), seeds and leaves are excluded from the definition of “ganja” when they are not accompanied by the flowering tops.

Bhang is typically prepared from the leaves (and sometimes seeds) of the cannabis plant, not from the resin or flowering tops. As a result:

• Bhang is not treated as “cannabis (hemp)” under the NDPS definition, and therefore NDPS does not directly criminalise bhang.

However, this does not mean bhang is completely free from regulation.

3.2 States’ power to regulate bhang

The SCC Times and Vajiram articles both note that states have power to regulate or even prohibit the use of cannabis leaves and seeds under their excise laws.

• Uttar Pradesh and Rajasthan license authorised bhang shops.
• Some states, such as Assam, have prohibited bhang through state laws.

So, bhang is “legal” only in the limited sense that NDPS does not list leaves and seeds as “cannabis (hemp)”. Whether you can buy or sell it in a particular state depends on that state’s excise framework.

3.3 The crucial distinction

Putting it simply:

• Bhang (leaves-only preparations) – outside NDPS definition of cannabis, but subject to state control.
• Ganja (flowering/fruiting tops) and charas (resin) – fully under NDPS criminal prohibition.
• Cannabis plant (any plant of genus Cannabis) – cultivation of the plant itself is banned under Section 8(b), even if it has no flowers yet.

This last point is what Jatin v. State of Kerala makes absolutely clear.

4. The Jatin case: facts and issues before the Kerala High Court

4.1 The factual background

In Jatin v. State of Kerala, the excise authorities received information that the petitioner was cultivating cannabis on the terrace of a rented house in Thiruvananthapuram.

• They seized five cannabis plants in pots (two about 59 cm and three between 29–46 cm) from the terrace.
• They also recovered about 5 grams of ganja seeds and dried branches from the petitioner’s bedroom.

A case was registered for offences under Section 8(c) read with Sections 20(a)(i) and 20(b)(ii)(A) NDPS Act, and the matter went before the Additional Sessions Court, Thiruvananthapuram.

Jatin filed a Criminal Miscellaneous Case before the Kerala High Court seeking to quash the proceedings, invoking the High Court’s inherent power (now Section 528 BNSS, corresponding to Section 482 CrPC).

4.2 Arguments by the accused

The petitioner raised three key legal points:

1. Plants without flowering tops are not “cannabis plants”
   • He argued that to qualify as a “cannabis plant” under Section 2(iv), the plant must have flowering or fruiting tops, otherwise Section 20(a)(i) is not attracted.
2. Cultivation in pots is not “cultivation” under Section 20(a)(i)
   • According to him, “cultivates” in Section 20(a)(i) implied only cultivation in earth/soil (i.e. agricultural-type cultivation), not growing in pots on a terrace.
3. Seeds and leaves alone cannot be treated as ‘ganja’
   • The 5 grams seized were only seeds and leaves, so Section 20(b)(ii)(A) was not attracted as “ganja” requires flowering tops.

He also disputed that he was actually residing in the premises where the plants and contraband were found, relying on a rental agreement.

4.3 Stand of the State

The State argued that:

• The complaint and seizure clearly showed conscious possession and cultivation of cannabis plants.
• Whether the petitioner was actually residing in the premises or whether the seized material qualified as “ganja” were questions of fact, to be decided at trial, not at the quashing stage.

5. What the Kerala High Court actually held in Jatin

The judgment systematically answers each of the petitioner’s contentions. This is the most important part for your blog.

5.1 “Cannabis plant” ≠ “ganja”; flowers are not required for cultivation offence

The Court carefully compared the definitions in Section 2(iii)(b) and Section 2(iv) NDPS Act:

• “Ganja” is specifically the flowering or fruiting tops of the cannabis plant (excluding seeds and leaves when not accompanied by tops).
• “Cannabis plant” is any plant of the genus Cannabis, without any reference to flowers.

From this, the Court held:

• The statute clearly treats “cannabis plant” and “ganja” as two distinct concepts.
• A plant does not need to bear flowering or fruiting tops to be a “cannabis plant”.
• Therefore, the argument that plants without flowers cannot attract Section 20(a)(i) (cultivation of cannabis plant) is without merit.

In other words, for a cultivation offence under Section 20(a)(i), the prosecution does not need to prove that the plant has matured into “ganja”. Merely raising a plant of the genus Cannabis is enough, if done in contravention of the Act.

The Court also referred to an earlier Division Bench decision in Kunju v. State of Kerala, which recognised that cultivation could be for producing various intoxicating preparations from the cannabis plant – not just ganja – and that cultivation of cannabis is also punishable under the Abkari Act.

5.2 Cultivation includes growing cannabis in pots

The NDPS Act does not define “cultivate”. So the Court turned to standard legal dictionaries – Law Lexicon and Stroud’s Judicial Dictionary – which describe “cultivate” as including activities like planting, tilling, raising or growing plants, and even specifically refer to growing cannabis in pots in a bedroom window as “cultivation” under UK law.

Relying on these meanings, the Kerala High Court held that:

• The expression “cultivate any cannabis plant” in Sections 8(b) and 20(a) covers any act of planting, raising, growing, farming or gardening a cannabis plant with the necessary mens rea.
• The statute does not distinguish between planting in the earth and growing in pots.
• The essence of the offence is the conscious act of planting and nurturing a cannabis plant in violation of the Act, not the medium (soil vs pot) or place (farm vs terrace vs balcony).

Thus, the slogan emerging from Jatin is effectively:

“Growing cannabis is a crime whether in soil or in pots.”

5.3 Separate offences: cultivation vs possession

The Court also emphasised that:

• Section 8(b) explicitly prohibits cultivation of any cannabis plant, and
• Section 20 creates separate punishments for:
  • (a) cultivating cannabis plant; and
  • (b) possessing/trafficking cannabis (ganja/charas, etc.).

Therefore, even if there is some debate about whether seeds and leaves amount to “ganja”, the cultivation of the plant itself is an independent offence. The Court thus rejected the attempt to collapse “cultivation” into “production of ganja”.

5.4 Quashing under Section 528 BNSS / Section 482 CrPC: limited scope

On the procedural side, the Court relied on classic precedents like State of Haryana v. Bhajan Lal and later Supreme Court decisions on the limits of inherent powers to quash criminal proceedings.

The principles it reaffirmed:

• The High Court cannot conduct a “mini-trial” at the quashing stage.
• The test is simply: if the allegations in the complaint are taken at face value, do they disclose the ingredients of the offence?
• Disputed questions such as:
  • whether the accused was actually residing in the premises, or
  • whether the seized material is indeed ganja,
    are matters for trial, not for a Section 528 BNSS / 482 CrPC petition.

Since the complaint alleged that:

• the petitioner was present when the plants and contraband were seized, and
• five well-grown cannabis plants and some ganja seeds/dried branches were recovered from premises tied to him,

the Court held that there was clearly a prima facie case. It therefore refused to quash the proceedings and dismissed the Crl. M.C.

6. How earlier case law fits in

The judgment in Jatin also discusses and distinguishes several earlier decisions that had been cited by the defence, including:

• Alakh Ram v. State of U.P. (2004) 1 SCC 766 – where the Supreme Court found lack of proof of possession of the premises.
• Narendran Purakunnel v. State of Kerala (2022 KHC 4777) – where the Kerala High Court held there was no material to show that the accused was the real occupier of the premises.
• K.K. Rejji (Karnataka HC) and Killo Subbarao (AP HC) – which deal primarily with interpreting “ganja” and when leaves/branches alone can amount to ganja.

The Kerala High Court clarifies that:

• These cases turn mainly on facts (no clear proof of possession) or on “ganja”/quantity issues, and
• They do not alter the basic statutory position that any plant of the genus Cannabis is a “cannabis plant” and that cultivating such a plant is independently punishable.

Thus, Jatin consolidates earlier jurisprudence while sharpening the statutory interpretation.

7. Practical legal takeaways on cannabis status in India

Putting the statute, commentary, and Jatin together, the current legal position can be summarised as follows:

1. Growing any cannabis plant is illegal (without licence)
   • Even a few plants in pots on your terrace or balcony fall under “cultivation of cannabis plant” and are punishable under Section 20(a)(i) NDPS.
   • The plant need not have flowers; it is enough that it is a plant of the genus Cannabis.
2. Bhang is not the same as ganja or charas
   • NDPS criminalises resin and flowering tops, not leaves and seeds alone.
   • That is why bhang (leaf-based preparation) can be allowed by states under their own laws.
3. Legality of bhang is state-specific
   • Some states license bhang shops; others restrict or prohibit it. Before dealing in bhang commercially, one must examine the relevant state excise laws and notifications.
4. For possession cases, “ganja” still requires flowering tops
   • Courts have previously held that leaves and stems alone are not “ganja”, which is consistent with the statutory definition.
   • In Jatin, the Court leaves this aspect to be decided at trial on evidence, but it separates that question from the cultivation offence.
5. High Courts will rarely quash NDPS cultivation cases at the threshold
   • If the complaint, on its face, shows that the accused was consciously growing cannabis plants, courts are reluctant to use Section 528 BNSS / 482 CrPC to quash proceedings.
6. Narrow exceptions exist under Section 14 NDPS
   • The Central or State Government can permit cannabis cultivation for industrial fibre, seeds, or medical research. States like Uttarakhand, UP, Himachal Pradesh and MP have permitted industrial hemp under this window, and institutions like CSIR have licences for medical research.
   Outside these licensed frameworks, personal cultivation remains illegal.

8. Conclusion: Clear statutory text, stricter judicial reading

The NDPS Act already gave a strict framework. What Kerala High Court’s 2025 judgment in Jatin v. State of Kerala does is:

• Reaffirm that “cannabis plant” is a broad category – any plant of the genus Cannabis, irrespective of stage of growth.
• Confirm that cultivation is medium-neutral – it does not matter if the plant is in a pot, backyard, farm or terrace.
• Separate cultivation offences from ganja possession offences, making it harder for accused persons to rely on technical arguments about flowering tops at the quashing stage.

For lawyers, policy researchers and law students, Jatin is now a leading authority on:

(a) the meaning of “cannabis plant” in Section 2(iv);
(b) the scope of “cultivate” in Sections 8(b) and 20(a); and
(c) the approach to be taken when considering quashing of NDPS cultivation cases under Section 528 BNSS / 482 CrPC.

In short, Indian law is very clear and very strict:

• Bhang (leaves/seeds) may be sold only under state licence,
• but any cultivation of a cannabis plant – even one sapling in a flower pot – is an NDPS offence.

Jatin v. State of Kerala cements this position and is now a vital reference for future position on the matter.

Further Readings:

• Jatin V. State of Kerala
• Vajiram & Ravi
• SCC Online
• Law Chakra