Is smoking weed legal in India? Know these laws!


December 13, 2019
By Advocate Chikirsha Mohanty



The roots of Weed in India can be traced back to 1700 BCE, which means it has a history in India of about 5000 years. As time passed, it has been addressed with several names such as Marijuana, Cannabis, Charas, Ganja, Bhang, etc., yet it remained popular among the masses for its one and only characteristic- the high.

Although, when we talk about the legality of weed, the area has been a point of debate for many years now. The promoters say that it should be decriminalized for its extraordinary medicinal properties, whereas, those who are against the legalization press upon its long term health degrading effects. However, the government has refrained from removing the ban from weed due to the ambivalence of its effects on human health.

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What is Weed?

In general terms, weed, also referred to as Marijuana, cannabis, herb, grass, bud, ganja, Mary Jane, pot, and a huge number of other slang terms, is a greenish-gray substance made through a mixture of dried Cannabis sativa flowers. It is majorly consumed by the masses through hand-rolled cigarettes called joints; in pipes, water pipes (aka bongs), or in blunts (marijuana rolled in cigar wraps) for its mind-altering experiences. It is also frequently mixed into edibles such as brownies, cookies, or candies when sold or consumed for medicinal purposes. Other than this, it is being increasingly consumed through vaporizers as well.

The main ingredient responsible for the psychoactive (mind-altering) experiences in marijuana is delta-9-tetrahydrocannabinol (THC). This chemical is found in resin formed by the leaves and buds of the female cannabis plant. In addition to this, there are 500 other chemicals including more than 100 compounds that are chemically related to THC in the cannabis plant.
 
Cannabis under the NDPS Act:
According to section 2 (3) of the Narcotic Drugs and Psychotropic Substances Act, 1985, cannabis refers to:

  1. Charas which is the separated resin, whether in the crude or purified form, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish.

  2. Ganja is the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops).

  3. Any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared from that place.

With 125 million people consuming weed in one form or another, it is one of the most commonly used illegal drugs in the world. Being linked historically to faith and mysticism, it has been consumed in India alone for centuries. However, the implementation of the NDPS Act has made the sale, consumption, production, transport of marijuana in the country illegal.

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Law related to weed in India

Until 1985, all cannabis derivatives such as marijuana, hash (charas) and bhang were legally sold in India. Later when the US began to campaign for a worldwide law against all hard and soft drugs following the adoption of the Single Convention on Narcotic Drugs in 1961, India also withstood American pressure to keep marijuana legal, given that ganja, charas and bhang were a way of life in India. However, by the early 80s, American society was struggling with drug problems and the opinions and pressure had stiffened.

After withstanding the American pressure for 25 years, India finally gave in to the demands of its Western counterpart in 1986 by enacting the Narcotic Drugs and Psychotropic Substances (NDPS) Act which clubbed marijuana with other hard drugs and criminalized it.

Despite the fact that the NDPS Act is the central law that deals with cannabis (weed or marijuana), different states in India have their own laws relating to consumption, possession, sale or purchase of weed or marijuana. For instance, Uttarakhand has allowed the commercial cultivation of hemp which is a strain of the Cannabis sativa plant species and is specifically grown for the industrial uses of its derived products.
 

Recreational and Medical use of Weed

There are two kinds of cannabis/weed- one that serves a medical purpose, and the other which is used for recreation. Medical use of the cannabis plant is said to help in the management of diseases such as cancer, epilepsy and sickle cell anaemia, whereas, recreational cannabis is used to intentionally change one’s state of consciousness, often producing feelings of happiness and exhilaration. Since cannabis is banned in India, medical or recreational use, both are banned under Indian law. Thus, people who want to medicate with cannabis also have no legal protection in India along with the ones who want to use it for recreational purposes.
 

What happens if you get caught with weed in India?

Recently, Indian businessman Ness Wadia was arrested in Japan for marijuana possession which rekindled several debates on criminalizing cannabis consumption. Although the Indian laws regarding cannabis consumption are not as strict as Japan’s, our laws are still harsher than dozens of countries who consider it pointless to make criminals out of their citizens for small quantities of pot.

Irrespective of the purpose of possession, possessing weed in India is a punishable offense under the NDPS Act. It is a predominantly reformatory law that regulates drugs in India. It has provisions for a graded system of punishment, which means that the quantum of punishment would be decided based on the quantity of drug or substance involved in a case.

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Punishment for Carrying Weed

According to section 20 of the NDPS Act, holding a small quantity of weed can land you up in jail for rigorous imprisonment of up to six months or a fine of Rs. 10,000 or both. For weed more than small quantity but less than the commercial quantity the punishment is rigorous imprisonment for up to 10 years or a fine of Rs. 1 lakh or both. In case of commercial quantity, the punishment prescribed is rigorous imprisonment for up to 10 to 20 years or a fine of Rs, 1 to 2 lakhs or both.

For the purposes of punishment, quantity has been specified as a small quantity- 1kg, commercial quantity- 20kg.
 

Legal Status of Weed around the World

While many countries have decriminalized the use and possession of cannabis, abandoning prison sentences for consumers, various countries have fully legalized marijuana. The legal status of weed in some countries have been discussed below:
 
Canada
Canada became the second country to fully legalize possession and recreational use of weed in the year 2018. However, medical marijuana has been legal in the country since 2001.
 
Uruguay
Uruguay is one of the first nations to legalize weed in the world. It had legalized growing, selling and consumption of weed in the year 2013 and the marijuana sale began in the year 2017.
 
USA
In USA marijuana for recreational purposes has been legalized in states like Alaska, California, Colorado, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont and Washington. Other than this, 14 states have decriminalized simple possession of marijuana but have not legalized it.  Most of these states impose penalties other than jail time, such as a civil fine, however, possessing larger amounts and selling remains illegal.
 
Spain
Selling drugs in Spain is illegal, although smoking weed privately or growing for private consumption is allowed. There are ‘weed dens’ in cities like Barcelona, Madrid and Valencia with strict rules for membership.
 
Netherlands
The Netherlands, having no tolerance for drug abuse, allows smoking cannabis under strict terms. Allowance to sell soft drugs has been given to coffee shops that include 5g of cannabis per day per person for people above the age of 18.
 
Brazil
The marijuana laws of Brazil were made lenient in 2006. The possession of marijuana is not punishable by a jail term in Brazil, however, an individual caught with marijuana possession may have to undergo community service and drug education programs.
 
Peru
It is allowed for individuals to carry 8gm of marijuana or 2gm of its derivatives for immediate personal consumption in Peru. In 2017, it also allowed cannabis oil to be produced, imported and commercialized for medical use.
 
Australia
In the Northern Territory, South Australia, Australian Capital Territory and Victoria, marijuana possession does not attract criminal charges. It also legalized medicinal marijuana in 2016.
 
South Africa
Growing marijuana for private consumption and private use of cannabis is legal in South Africa since 2018.
 
Apart from this, several European countries such as Austria, Britain, Croatia, Finland, France, Germany, Greece, Italy, Macedonia, Poland, Romania and Slovenia have also legalized cannabis for medicinal use. Some Latin American countries like Chile, Colombia, Argentina, Mexico and Peru have also legalized the medicinal use of marijuana.

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The Ongoing Debate on Weed Legalization

With countries like Canada legalizing cannabis and various states in the US allowing medical uses, the boom for the cannabis legalization can also be seen in India. As per the industry estimates cannabis sales could touch $15 billion in 2019 and in another 10 years, the market could be worth around $60 billion. The supporters state that the legalization of medicinal marijuana and decriminalization in some countries has led to a significant decrease in the black market, as people are resorting to legally purchasing marijuana for medicinal as well as recreational use. Moreover, it is being viewed as an opportunity for countries to earn revenues through taxation. This view was also held by Thiruvananthapuram MP Dr. Shashi Tharoor while he vouched for legalizing cannabis in India in 2018. In 2017, before Dr. Tharoor voiced for the issue, Women and Child Development Minister Maneka Gandhi had also called for the legalization of marijuana for medicinal purposes.

Whereas, on the other hand, the ones against the legalization of cannabis claim that there are many misconceptions about cannabis. It is not accurate to say that cannabis is harmless as its immediate effects include impairments in memory and in mental processes including ones that are critical for driving. It is further stated that the long-term use of cannabis may lead to the development of addiction to the substance, persistent cognitive deficit, and mental health problems like schizophrenia, depression and anxiety. Cannabis exposure to adolescents can also alter brain development.

In November 2019 the Delhi High Court had issued a notice to Central Government in a PIL challenging the constitutional validity of certain provisions prohibiting the use of cannabis under the NDPS Act. Although the petition did not demand the legalization of cannabis, it sought revocation of certain provisions that prohibit the use of cannabis. It stated that only when the United States of America had banned the substance, the Indian government also went ahead to ban cannabis. A recent report by the United Nations has stated that the findings on which cannabis was banned in the USA are scientifically flawed. Following the findings of this report 24 states in Europe, the United Kingdom and 33 states in the US have decriminalized the use of cannabis. However, it is urged to carefully weigh the risks and benefits of cannabis before we follow the suit with the West.

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How Can a Lawyer Help You in Cases Related to Weed Possession?

Being charged with a crime, whether major or minor, is a serious matter, especially when the offence relates to the NDPS Act which is one of the strictest laws of the country. A person facing criminal charges risks severe penalties and consequences, such as jail time, having a criminal record, and loss of relationships and future job prospects, among other things. While some legal matters can be handled alone, a criminal arrest of any nature warrants the legal advice of a qualified criminal lawyer who can protect your rights and secure the best possible outcome for your case. This is why it is important to have a criminal lawyer to guide you when charged with a crime as critical as possessing weed or other substances.



 

These guides are not legal advice, nor a substitute for a lawyer
These articles are provided freely as general guides. While we do our best to make sure these guides are helpful, we do not give any guarantee that they are accurate or appropriate to your situation, or take any responsibility for any loss their use might cause you. Do not rely on information provided here without seeking experienced legal advice first. If in doubt, please always consult a lawyer.


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