Magic Mushroom Can’t Be Treated As A Mixture; Not A Scheduled Narcotic Or Psychotropic Substance Under NDPS Act: Kerala HC
The Kerala High Court allowed a Bail Application of an accused under Section 483 of the BNSS, 2023.
The Kerala High Court held that a Magic Mushroom is not a scheduled narcotic or psychotropic substance under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
The Court held thus in a Bail Application filed by an accused under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
A Single Bench of Justice P.V. Kunhikrishnan observed, “I am in perfect agreement with the decisions of the Karnataka High Court and Madras High Court. Mushroom or magic mushroom cannot be treated as a mixture. Therefore, Note 4 of the Table dealing with the small quantity and commercial quantity is not applicable as far as Mushroom or magic mushroom is concerned. Admittedly, the mushroom or magic mushroom is not a scheduled narcotic or psychotropic substance.”
Advocate Veena Hari appeared for the Petitioner/Accused while Senior Public Prosecutor (SPP) Noushad K.A. appeared for the Respondent/State.
Facts of the Case
The Petitioner was the accused in a case registered against him, alleging offences punishable under Section 22(c) and 8(c) read with 20(b)(ii)(A) of the NDPS Act. He was arrested in October 2024 and was in judicial custody since then. As per the prosecution case, the accused was found in possession and transporting 6.59 gm of Charas, 13.2 gm of Ganja, 226 gm of Psilocybin contained magic mushroom, and 50gm Psilocybin contained magic mushroom capsules, while travelling in a car. Hence, it was alleged that the accused committed the said offences under the NDPS Act.
Reasoning
The High Court in view of the above facts, noted, “… it is clear that the Psilocybin content in mushrooms will be 1% per one gram of dried Psilocybe cubensis mushrooms. This Court also perused the analyst report in this case. A perusal of the same would not show the weight of the psilocybin contained in the mushrooms and mushroom capsules alleged to be seized from the petitioner is separately shown.”
The Court added that there are no materials to find that the accused was in possession of commercial quantity of psilocybin and if commercial quantity is not applicable, the rigour under Section 37 of the NDPS Act is not applicable.
“No criminal antecedents are also alleged against the petitioner. The petitioner is in custody for about 90 days. In such circumstances, I think, the petitioner can be released on bail after imposing stringent conditions”, it further said.
The Court also reiterated that the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial.
Accordingly, the High Court allowed the Bail Application and released the accused on bail on executing a bond of Rs. 1 lakh with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court.
Cause Title- Rahul Rai v. State of Kerala (Neutral Citation: 2025:KER:241)
Appearance:
Petitioner: Advocates Veena Hari and Nirmal S.
Respondent: SPP Noushad K.A.
