Magic Mushroom Per Se Not Narcotic Drug, Quantity Of Psylocybin Present Must Be Determined To Check Commercial Quantity: Madras High Court

Justice Anand Venkatesh thus took a different stand than that taken by Justice Bharatha Chakravarthy recently wherein Justice Chakravarthy had held that prima facie every cell of magic mushroom contained chemical and should be weighed entirely to determine the commercial quantity.

Justice Venkatesh on the other hand held that magic mushroom was not per se a contraband and can be considered a contraband only when it contains psilocybin. Thus, the court held that in the absence of any material to conclude the level of psylocybin, the court could not assume that the entire magic mushroom falls within the rigours of NDPS Act.

“In the instant case, 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 said.

The court also added that magic mushroom was not a mixture of narcotic drug or psychotropic substance with a neutral substance and even if it was assumed to be a mixture, mushroom was a fungi and was a natural produce and thus could not be a mixture made through preparation as provided under the Act.

“The magic mushroom cannot be considered as a 'mixture' of narcotic drugs or psychotropic substance with one or more neutral substance. Even if it is assumed as a mixture, mushroom is a fungi and it is the natural produce and as such, the same does not fall under the term 'mixture' as found in Section 2(xx) of the NDPS Act which defines the term 'preparation',” the court observed.

The court was hearing a bail petition filed by Mohan who was arrested for offences under Section 8(C) read with Section 22(C) of the NDPS Act. The prosecution case was that on secret information, the Inspector of Police inspected Mohan and found him in possession of 60 grams of Magic Mushroom kept in his pant pocket. A report was thus submitted under Section 57 of the Act to the magistrate and a case was registered.

Mohan argued that magic mushroom was a natural product available in deep forest and had not been cited under the category of narcotic drug or psychotropic substance. He submitted that what was recovered was magic mushroom and not psylocybin and hence mushroom itself could not be treated on par with psylocybin. Pointing out that the FSL report had not mentioned the quantity of psylocybin recovered, he argued that assuming 60 grams of magic mushroom as equivalent to 60 grams of psylocybin was unsustainable.

The court agreed with the stand taken by the petitioner. The court also noted that Section 52A of the Act had been violated in the present case since the samples were not drawn and certified by the Magistrate. The court however decided not to go into the merits of the case at the bail stage.

Thus, considering the fact that there were no previous cases and that Mohan had been incarcerated since August 2024 and since the trial would take time to commence, the court was inclined to grant him bail.

Counsel for the Petitioner: Mr.J.Selvam

Counsel for the Respondent: Mr.S.Ravi Additional Public Prosecutor

Citation: 2024 LiveLaw (Mad) 460

Case Title: S. Mohan v State

Case No: Crl. O.P. (MD) No.19504 of 2024