DISSENTING OPINION OE
LEVINSON, J.I dissent.
I would reverse the appellant’s conviction on the ground that a person who receives from another a pipe containing marihuana for the sole purpose of inhaling therefrom and subsequently returning it does not, as a matter of law, unlawfully “possess” or “have under his control” a narcotic drug, within the meaning of HRS § 329-5 (Supp. 1970). That statute provides in relevant part:
No person shall knowingly plant, cultivate, produce, manufacture, possess, have under his control, prescribe, administer, or compound any narcotic drug as defined by section 329-1 except as provided in this chapter.
The Narcotics Act, HRS ch. 329, of which the above provision is a part, does not define the words “possess” or “control.” It falls upon this court, therefore, to give these words a sensible and reasonable meaning within the context of the Act. To do so it is first necessary, I believe, to determine the regulatory purposes of the Narcotics Act. Specifically, does the Act disclose any discernible pattern of legislative concern which would throw light on whether the appellant’s brief dominion over the pipe containing *669marihuana amounted to possession or control as proscribed by HES § 329-5 (Supp. 1970)? My analysis of the Narcotics Act and the case law relevant to illegal possession leads me to conclude that the possession and control contemplated by the legislature is of a more substantial character than the momentary possession necessary to take one or two puffs.
1. HES CH. 329 INDICATES THAT THE LEGIS-LATUEE DID NOT INTEND TO PENALIZE THE MEEE SMOKING OF MAEIHUANA.
A. The Legislature Sought to Penalize the Possession Necessary for Distribution to Others} Not that Concomitant with Use.
The provisions of HES ch. 329 exhibit a clear legislative intent to regulate the sale and distribution of narcotic drugs by comprehensively controlling the chain of supply of such drugs within the State of Hawaii. Persons desiring to produce or manufacture narcotic drugs must first obtain a license issued by the state department of health.1 Authorized distributors may sell narcotics only to certain designated persons and then only upon written orders.2 The selling or dispensing of narcotics to minors is prohibited and violations are severely penalized.3 The State has also regulated the professional use of these drugs4 and requires that records he filed with a designated public officer when narcotics are dispensed through prescriptions.5
It is thus apparent that the broad sweep and scope of HES ch. 329 is aimed at controlling narcotics by regu*670lating the manufacturing and distribution sources of the drugs. Nowhere does the Act direct itself to outlawing the mere use of narcotics. HRS § 329-5 (Supp. 1970) does speak of possession and control, but these words must be interpreted in the context of an act clearly designed to control the traffic in drugs by regulating the chain of supply. In this context, I do not believe that the possession or control contemplated by the legislature was meant to encompass the mere taking in hand of a pipe or cigarette for the immediate purpose of smoking marihuana. Instead I think that the possession and control prohibited by the statute is the power to distribute the drugs as the possessor sees fit. In the instant case this status belonged to the owner of the marihuana who offered it to the appellant for the latter’s immediate consumption. At all times control over distribution remained in the offeror. He is the one, not the mere user, who falls within the prohibition of the Act.
The majority does not agree with this analysis of HRS § 329-5 (Supp. 1970). It does concede, however, that mere “superficial possession” and “passing control” are exempt from the operation of the statute. Nevertheless it holds that the present conduct is not “superficial” or “passing.” I am at a loss to conceive what these phrases import if they do not describe the appellant’s acts in the present case. What possession could be more superficial, or what control more passing, than the fleeting act of holding and puffing on a marihuana pipe and “passing” it to another? A sensible construction of HRS § 329-5 (Supp. 1970), consistent with the statutory scheme of regulating the marketing and distribution of narcotic drugs, requires that possession be equated with ownership, and control be defined as such management or dominion over the prohibited substance as gives to the controller the power to dispose of it to others. Such an interpretation sweeps *671broad enough to encompass those in a position to dispense the prohibited drugs, while passing over persons whose only contact is immediate consumption. In addition, this construction of the Narcotics Act is supported by the case law dealing with fact situations closely analogous to the instant case.
During the “Great Experiment” of the Prohibition era numerous cases arose where a group of persons would be arrested for passing and drinking from a bottle of illegal liquor owned and distributed by one member of the group. The defendants in such cases were charged with unlawful possession of liquor, under statutes worded similarly to our own. The courts were called upon to construe the meaning of possession within the context of a statute aimed at controlling the traffic in intoxicating liquor. Adopting a statutory analysis which parallels the one asserted above, these courts concluded that possession did not include the mere taking in hand for drinking purposes. What was prohibited was ownership or control of such a degree as to give the controller the power of distribution to others. State v. Williams, 117 Or. 238, 240-42, 243 P. 563-64 (1926); Brooks v. Commonwealth, 206 Ky. 720, 723, 268 S.W. 339, 340 (1925); Brazeale v. State, 133 Miss. 171, 173, 97 So. 525, 526 (1923); State v. Munson, 111 Kan. 318, 319-20, 206 P. 749 (1922); State v. Jones, 114 Wash. 144, 147-48, 194 P. 585, 587 (1921).
In State v. Williams, supra, the defendant was charged with the unlawful possession of intoxicating liquor under a statute making it unlawful for any person to “receive, import, possess, transport, deliver, manufacture, sell, give away or barter any intoxicating liquor within this state.” The Supreme Court of Oregon asked: “Does the mere taking of a drink of intoxicating liquor, at the invitation of a friend, constitute unlawful possession within the meaning of the statute?” State v. Williams, supra. The *672court answered that such conduct was not within the intent of the statute. In reaching this conclusion the court relied upon the reasoning of an earlier case, State v. Jones, 114 Wash. 144, 148, 194 P. 585, 587 (1921), in which the Washington Supreme Court held that:
[P] ossession, as the word is used in the statute, means something more than the mere taking in the hand for the purpose of immediately drinking the thing thus possessed upon the express invitation of the owner so to do... the court should at least have defined possession as including control of the thing possessed with the right to dispose of it in any manner the possessor saw fit. As we understand the laws of hospitality, when one is offered a glass of liquor, he has a right to accept and drink it, or refuse it, and his possession, if he accepts it, is not broader than the invitation upon which he acts.
Similarly, one who is offered a pipe of marihuana for immediate consumption obtains only the dominion necessary for that act. Actual possession and control lies at all times in the offeror. It is he, as the distributor of the prohibited substance, who falls within the regulatory purposes of the Act.
B. The Legislature was Familiar with the Language Necessary to Prohibit the Use of Narcotie Drugs but Chose Not to Adopt It.
In effect, the majority opinion’s definition of possession extends the coverage of the Narcotics Act to penalize the smoking or use of marihuana. This result is, I believe, clearly beyond that contemplated by the legislature when HRS ch. 329 was enacted. This belief is supported by the Narcotics Act itself because the provisions of the Act indicate that at the time the legislature acted it was fa*673miliar with the specific limiting language necessary to deal with the consumption of marihuana. Yet it chose not to employ this language to prohibit the use of narcotic drugs.
HRS § 329-4 of the Narcotics Act prohibits the sale of narcotic drugs to minors. This provision also makes it a crime to induce “any person under the age of twenty years to buy, traffic in, receive, take, inject, inhale, or smoke any narcotic drug....” (emphasis added). This is the language the legislature would have used had it desired to prohibit the acts of the appellant. The legislature chose, however, not to proscribe the “taking,” “inhaling,” “injecting,” or “smoking” of marihuana because it was not concerned with penalizing the user of drugs.6 Therefore, if the legislature did not intend to prohibit the use of marihuana directly, this court should not indirectly do so by broadly defining possession so as to include the superficial custody required for the immediate inhalation of marihuana.
0. The Majority’s Analysis of HRS ch. 329 Does Not Establish that the Legislature Intended the Word Possession to Include the Acts of the Appellant.
In deciding this case it is important to recognize what is not in issue. The appellant does not contend that possession as used in HRS § 329-5 (Supp. 1970) is limited only to dealers and suppliers of narcotic drugs. Nor is it argued that a person falls outside the statute if he possesses narcotic drugs for his personal consumption. The motive for possession as the word is used in this section is irrelevant. What is important is the power to dispense narcotic drugs to others. This is what is meant by unlaw*674ful possession. Thus one who buys a single marihuana cigarette, even for his own immediate consumption, violates the statute because he has acquired the power to dispense, not necessarily by sale, to others. Similarly one who lacks this power does not have unlawful possession, even though he takes a puff on a marihuana pipe. What this case puts in issue is not whether possession for personal use violates the statute but whether personal use without possession has been made a crime.
The majority opinion attempts to answer this question by arguing that all contact with marihuana is prohibited unless specifically authorized by HRS ch. 329.7 The cases cited in support of this position are based upon different factual situations8 since they deal only with the question whether ownership for personal use constitutes unlawful possession. Nevertheless, the decision in State v. Reed, 34 N.J. 554, 559, 170 A.2d 419, 422 (1961), one of the cases cited by my Brother Marumoto, is enlightening for its analysis of the reasons behind defining unlawful possession so as to include possession for personal use.
[T]he inclusion of unauthorized possession for personal consumption within the proscriptions of the Drug Act seems necessary to fulfill the legislative goal of suppressing illegal narcotics traffic. Every possessor of narcotics has the power to dispense them to another. *675That power in the hands of any person is a potential source of illegal traffic.
As we have seen, by holding in his hand and puffing on the marihuana pipe in the presence, at the invitation, and under the control of the owner, the appellant did not acquire this statutorily proscribed power to dispense to another. Therefore, as the New Jersey Supreme Court points out, he does not fall within the class of persons whom the legislature desired to penalize for unlawful possession.
The majority also relies on HBS § 329-15 which provides that:
A person to whom or for whose use any narcotic drug has been sold or dispensed by an apothecary, physician, dentist, podiatrist or practitioner... may lawfully possess it in the container delivered to him by the person selling or dispensing the same.
It is argued that this provision authorizes the only form of legal possession contemplated by the statute. Once again such a contention avoids the real issue by failing to answer the question as to what the legislature meant when it used the word possession. HBS § 329-15 actually supports the conclusion that possession within the meaning of the Narcotics Act means the proprietary control inherent in ownership. This is because HBS § 329-15, in authorizing “possession” under specified circumstances, speaks in terms of legalizing ownership. Thus it is logically inferable that if the legislature meant ownership when authorizing possession then it also meant ownership when it prohibited illegal possession.
Finally, the majority opinion seems to find significance in the enactment of a separate section proscribing the possession of narcotic drugs with the intent to sell or dispense them. HBS § 329-3. I fail to understand the importance of this section because it has never been contended that *676HRS § 329-5 (Supp. 1970) was directed solely against dealers and suppliers. Rather it has been stressed that HRS § 329-5 (Supp. 1970) applies to ownership possession. If the State is able to prove possession of great quantities of narcotics then the defendant may be prosecuted for possession with the intent to sell or dispense them to others. These two sections merely reflect a legislative recognition that possession with intent to sell is a more serious crime than simple ownership and therefore should be more severely punished.9 The existence of these two sections does not help to answer the basic question whether holding and puffing on a marihuana pipe, while in the presence and under the control of the owner, constitutes unlawful possession within the meaning of HRS § 329-5 (Supp. 1970).
II. THE MAJORITY OPINION’S DEFINITION OF POSSESSION RENDERS HRS § 329-5 (SUPP. 1970) UNCONSTITUTIONALLY VAGUE.
In a recent opinion my Brother Abe, writing for the court, reaffirmed the fundamental principle of due process of law that a penal statute must state with reasonable clarity the acts it proscribes. State v. Shigematsu, 52 Haw. 604, 606, 483 P.2d 997, 998 (1971); accord, State v. Abellano, 50 Haw. 384, 385, 441 P.2d 333, 334 (1968). This constitutional guarantee mandates that criminal legisla*677tion be explicitly drawn so that persons potentially subject to its sanctions can know with fair assurance bow to act in order to avoid liability. As the United States Supreme Court stated in Connally v. General Construction Co., 269 U.S. 385, 391 (1926) :
[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.
In the instant case, I believe that the majority opinion’s amorphous definition of possession renders HRS § 329-5 (Supp. 1970) so indefinite that “men of common intelligence must necessarily guess at its meaning and differ as to its application,” thereby violating the due process guarantees embodied in article I, section 4 of the Hawaii Constitution and the fourteenth amendment to the United States Constitution.
In construing HRS § 329-5 (Supp. 1970) the majority opinion defines possession as “conscious and substantial possession, not a mere involuntary or superficial possession, and much more than a passing control, fleeting and shadowy in nature.” This definition violates the constitutional guarantee of due process of law because it fails to mark explicitly the boundaries of prohibited conduct. No standards are provided which would enable a person to determine what is or what is not under various circumstances unlawful possession of a narcotic drug. To illustrate, if the owner of a marihuana pipe holds on to it while another takes a puff from the pipe, is the latter guilty of unlawful possession or is such possession “superficial” and therefore outside the scope of the statute? Similarly, if a person just holds the pipe in his hand and does not puff on it, will he be liable, under the majority’s definition of possession, to criminal prosecution? I cannot divine *678the answer to these questions from the definition of criminal liability presently adopted by the court, nor do I believe the general public will have greater success. The court’s vague definition of unlawful possession not only fails to inform those who are subject to the statute what conduct on their part will leave them liablé to its penalties, but also dangerously broadens the discretion of those persons charged with enforcing the statute, thus encouraging arbitrary arrests and convictions.
III. IT IS UNWISE FOR THIS COURT TO EXTEND THE STATUTE SO AS TO CRIMINALIZE THE USE OF MARIHUANA.
Currently the wisdom of dealing with the problem of marihuana use through the criminal process is being assiduously questioned.10 There may even exist a serious question as to the constitutionality of marihuana laws.11 At the very least, scholars who have studied the problem raise grave doubts as to the social utility of criminalizing marihuana use.12 As Professor John Kaplan of the Stanford University Law School concludes, in his excellent book, Marijuana — The New Prohibition13 at 311 (1970), “the *679social and financial costs directly and indirectly attributable to tbe criminalization of marijuana far outweigh the benefits of this policy.” In addition, Professor Kaplan warns in his book, supra at 47, “[t]he most serious cost of the criminalization of marijuana is probably that it make felons of a large portion of our population, especially our youth.”14
This court need not be blind to the practical consequences of its interpretations of law. As the above analysis indicates the purposes of the Narcotics Act will not be undermined if the temptation is resisted to extend the coverage of the Act so as to penalize persons who, perhaps through social pressures, accept an invitation to puff on a marihuana pipe or cigarette. I gee little social value in the majority opinion’s rigid interpretation of existing drug laws. As Professor Michael P. Rosenthal cogently noted, A Plea for Amelioration of the Marihuana Laws, 47 Tex. L. Rev. 1359, 1372 (1969) :
Certainly, the consequences of criminalization would seem to be least warranted in the case of the experimenter. A small transgression or even a small number of transgressions, especially — but not exclusively — when committed by the young and developing, should not be the basis for permanently scarring a person’s life. This is part of the rehabilitative ideal. While that ideal is usually spoken of in connection with sentencing after conviction of a crime, it should be given weight in formulating definitions of criminality also.
Based on the above statutory analysis, case law and policy considerations, I would reverse the appellant’s conviction.
HRS § 329-6.
HRS § 329-7.
HRS i 329-4.
HRS §§ 329-11, 329-13, 329-22.
HRS § 329-8.
HRS ch. 328E (Supp. 1970) which prohibits the use of certain “Intoxicating Compounds” indicates that when the legislature wishes to prohibit the use of a substance it does so in unambiguous terms.
This argument undercuts the majority opinion’s earlier position that “superficial possession” is not prohibited by the statute, since nowhere in HRS ch. 329 is such possession specifically authorized.
The defendants in each of the cases cited by the majority were charged with ownership possession of substantial quantities of prohibited drugs. State v. DaVila, 150 Conn. 1, 183 A.2d 852 (1962) (defendant sold 9 bags of heroin to a federal narcotics agent while retaining a tenth bag for his own use); Gonzales v. People, 128 Colo. 522, 264 P.2d 508 (1953) (defendant charged with possession of 15 marihuana cigarettes); State v. Martin, 193 La. 1036, 192 So. 694 (1939) (defendant charged with possession and control of 3 capsules of heroin); State v. Reed, 34 N.J. 554, 170 A.2d 419 (1961) (the defendant found in possession of quantity of marihuana cigarettes allegedly rolled by him at a private party).
Prior to the 1953 amendment of the narcotics legislation no distinction was made between ownership for personal consumption and possession with intent to sell. RLH § 2603 (1945). Both types of possession were subject to the same penalties. RLH § 2621 (1945). The legislature recognized that possession with the intent to sell is a more serious offense and in 1953 gave it separate treatment and greatly increased the penalties for such possession. S.L.H. 1953, c. 19. As the Senate Standing Committee stated, in reporting the proposed amendment, Senate Committee Report No. 131, 1953 Senate Journal 277:
The purpose of the bill is to strengthen and modernize the laws of the Territory of Hawaii relating to narcotic drugs primarily by increasing the criminal penalties for narcotic violations.
J. Kaplan, Maiujuana — The New Prohibition (1970); Rosenthal, A Plea for Amelioration of the Marihuana Latos, 47 Tex. L. Rev. 1359 (1969); Note, Possession of Marijuana in Ban Mateo County: Borne Social Costs of Criminalization, 22 Stan. L. Rev. 101 (1969); Note, Marijuana Laws: A Need for Reform, 22 Ark. L. Rev. 359 (1968).
M. Town, “Privacy and the Marijuana Laws,” reprinted in THe New Social Drug (1970) ; Wallenstein, Marijuana Possession as an Aspect of the Right to Privacy, 5 Crim. L. Bull. 59 (1969), Note Marijuana and the Law: The Constitutional Challenge to Marijuana Laws in Light of the Social Aspects of Marijuana Use, 13 Vill. L. Rev. 851 (1968).
See authorities cited in note 10 supra.
In reviewing Professor Kaplan’s book, Chief Justice George P. Boney of the Supreme Court of Alaska concluded, Review, Marijuana and the Lato, 6 Harv. Civ. Rights — Civ. Lib. L. Rev. 435, 438 (1971) :
To a field of law where discussion has hitherto been noticeably colored with emotion and issues frequently treated with clamorous confusion and disarray, Kaplan’s work applies a thoroughly documented and orderly framework. This detached and dispassionate analysis of the problems inherent in criminalization of marijuana should set the platform for further discussion.
Professor Kaplan reports that recent studies indicate that approximately thirty percent of California’s high school students and sixty-nine percent of the students at Stanford University have used marihuana at least once. J. Kaplan, supra note 10, at 23. Studies have not yet been conducted in Hawaii. Nevertheless, extrapolating from the available information, I do not believe that in enacting HRS eh. 329 the legislature contemplated that it would be used to label as criminals one-third of today’s high school students and two-thirds of today’s college students.