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Synopsis

The Kerala High Court has clarified that magic mushrooms are not considered a scheduled narcotic or psychotropic substance under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

A Single judge bench comprising Justice P.V. Kunhikrishnan, observed: “mushroom or magic mushroom is not a scheduled narcotic or psychotropic substance,” while granting bail to a man arrested for possessing charas, ganja, and magic mushrooms in contravention of the Act.

The case pertained with the petitioner, who was arrested on October 4, 2024, on allegations of transporting 6.59 grams of charas, 13.2 grams of ganja, and 226 grams of psilocybin-containing magic mushrooms along with 50 grams of psilocybin-infused magic mushroom capsules. The prosecution argued that the magic mushrooms could be treated as a mixture under the NDPS Act, potentially classifying them as a commercial quantity, which would impact the accused's eligibility for bail.

In response, the petitioner's counsel, Advocates Nirmal S. and Veena Hari, contended that the entire quantity of mushrooms should not be considered a commercial quantity because psilocybin—the active compound—makes up only 1% of the mushrooms' weight. Furthermore, it was emphasised that psilocybin was not separately quantified in the prosecution's evidence, and as a result, the total quantity should be considered small. It was also submitted that the petitioner, a highly educated individual employed in cyber security in the United States, was in India due to his mother's medical condition and had been in custody for nearly 90 days without any prior criminal history.

Contrarily, the State's counsel, Senior Public Prosecutor Noushad K.A., opposed the bail plea, citing the provisions of the NDPS Act, particularly Section 22(c), which deals with commercial quantities. The prosecution argued that the magic mushrooms should be treated as a mixture under Note 4 of the Act, where the entire weight of a mixture—including any neutral substances—is considered when determining whether a drug is of a small or commercial quantity.

The court, however, disagreed with the prosecution's argument, highlighting that “The magic mushroom cannot be considered as a ‘mixture’.” It found that while psilocybin, a naturally occurring compound found in magic mushrooms, is a scheduled narcotic drug, the mushrooms themselves are not. Consequently, the weight of the psilocybin alone, and not the mushrooms' entire weight, must be considered when determining the quantity of contraband.

Relying on similar rulings from the Karnataka and Madras High Courts in Saeidi Mozdheh Ehsan v. State of Karnataka and S. Mohan v. State, the court noted, “magic mushroom per se does not satisfy the requirement of the narcotic drug under Section 2(xiv) or a psychotropic substance defined under Section 2(xxiii) of the NDPS Act. Magic mushroom per se cannot be called contraband and it is construed as a contraband only because it contains psilocybin.” The court further emphasised that the psilocybin content in the mushrooms is minimal—about 1% of the total weight.

Justice Kunhikrishnan stated, “Whether a mushroom can be considered as a mixture?. I am not in a position to accept the contentions of the prosecution that mushroom is a mixture. It is only fungi.”

As a result, the court ruled that the quantity of magic mushrooms and capsules seized from the petitioner did not meet the threshold for a commercial quantity. Since the quantity of psilocybin involved was not substantial enough, the stricter provisions under Section 37 of the NDPS Act regarding bail did not apply. “If commercial quantity is not applicable, the rigour under Section 37 of the NDPS Act is not applicable,” the court said.

The court ultimately granted bail to the accused after noting he had been in custody for 90 days since his arrest in October 2024 and had no prior criminal record.

 

Cause Title: Rahul Rai v State of Kerala [BAIL APPL. NO. 9150 OF 2024]