Kerala High Court: In a bail application filed by the petitioner (‘accused’) under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023, for case was registered against him for the offences punishable under Section 22(c) and 8(c) read with Section 20(b)(ii)(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’), P.V. Kunhikrishnan, J.*, stated that the mushroom or magic mushroom was not a scheduled narcotic or psychotropic substance. The Court stated there were no materials to find that the accused was in possession of commercial quantity of psilocybin. If commercial quantity was not applicable, the rigour under Section 37 of the NDPS Act was also not applicable. Since, there were no criminal antecedents alleged against the accused, and the accused was in custody for about 90 days, therefore, in such circumstances, the Court granted bail to the accused after imposing stringent conditions.
Background
In the present case, on 04-10-2024, at about 4:15 pm, the accused was found in possession and transporting 6.59 gm of Charas, 13.2gm of Ganja, 226gm of Psilocybin contained magic mushroom and 50gm Psilocybin contained magic mushroom capsules, which was in contravention of the provisions of NDPS Act. Hence, it was alleged that the accused committed the offence under Section 22(c) and 8(c) read with Section 20(b)(ii)(A) of the NDPS Act.
Analysis, Law, and Decision
The Court stated that to determine small or commercial quantity of the narcotic or psychotropic substances in case of seizure of mixture of narcotic drugs or psychotropic substances with one or more neutral substances, the quantity of neutral substances should be taken into consideration along with the actual content by weight of the offending drug.
Regarding whether mushroom could be considered as a mixture, the Court stated that it was not able to accept that mushroom was a mixture, and it was only a fungi. The Court relied on Saeidi Mozdhdeh Ehsan v. State of Karnataka, 2013 SCC OnLine Kar 4641 and S. Mohan v. State, 2024 SCC OnLine Mad 6788, and stated that mushroom or magic mushroom could not be treated as a mixture. Therefore, Note 4 of the Table in NDPS Act, dealing with the small quantity and commercial quantity was not applicable as far as Mushroom or magic mushroom was concerned. Thus, the Court stated that the mushroom or magic mushroom was not a scheduled narcotic or psychotropic substance.
The Court referred to an article published by the Faculty of Department of Medicine, University of British Columbia titled “Therapeutic use of Psilocybin Practical consideration for dosing and administration” and stated that it was clear that the Psilocybin content in mushrooms would be 1% per one gram of dried Psilocybe cubensis mushrooms. In the present case, as per the analyst report, the weight of the psilocybin contained in the mushrooms and mushroom capsules alleged to be seized from the accused was 276 grams.
The Court stated that there were no materials to find that the accused was in possession of commercial quantity of psilocybin. If commercial quantity was not applicable, the rigour under Section 37 of the NDPS Act was also not applicable. The Court noted that there were no criminal antecedents alleged against the accused, and the accused was in custody for about 90 days. Therefore, the Court stated that in such circumstances, the accused could be released on bail after imposing stringent conditions.
Thus, the Court directed the accused to be released on bail on executing a bond for Rs.1,00,000 with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court. The accused should appear before the Investigating Officer as and when required and should co-operate with the investigation. The Court directed that the accused should not leave India without permission and should not commit any offence similar to the offence of which he was accused, or suspected. If the conditions stated were violated by the accused, the jurisdictional Court could cancel the bail in accordance with the law.
[Rahul Rai v. State of Kerala, Bail Appl No. 9150 of 2024, decided on 13-01-2025]
Advocates who appeared in this case :
For the Petitioner: Nirmal S, and Veena Hari, Advocates;
For the Respondent: Naushad K.A., Public Prosecutor