[NDPS Act] Prima Facie Every Cell Of Magic Mushroom Contains Chemical, To Be Weighed Entirely To Ascertain Commercial Quantity: Madras HC

Justice Bharatha Chakravarthy thus while dismissing a bail plea prima facie differed from the stand taken by the Karnataka High Court in Saeidi Mozdhdeh Ehsan v State of Karnataka wherein a single judge had opined that the quantity of the substance had to be taken to find out if the seized item fell within commercial quantity.

Differing with the Karnataka High Court, Justice Chakravarthy observed that the penal statutes had to be construed strictly without interpreting them to "aid the accused".

“As a matter of fact, prima facie from the informal interaction with the expert at the stage of grant of bail, it can be seen that the particular type of mushroom, namely, the magical mushroom, every cell contains the said chemical. If the produce is a natural produce and every cell of the same contains a chemical, then prima facie I am of the opinion that the entire material has only to be weighed and considered for the purpose of determining whether it is commercial quantity or not. Prima facie, I am not in agreement with the conclusions made by the Karnataka High Court cited supra. The penal statutes has to be considered strictly as such and interpretation need not be made and further explanation need not be added to the penal provisions so as to aid the accused,” the Madras High court said.

The high court was hearing a bail petition filed by Dhanaraj who was charged with offences under Section 8(c), 22(C), 20(b) (ii) (A) of the NDPS Act by the Kodaikanal Police. Advocate Karuppusamy Pandian, appearing for Dhanaraj, argued that even though scientific report showed presence of the chemical named Psilocybin, the further ingredients with reference to chemicals were not mentioned in the report.

It was argued that Magic mushroom was a natural produce and it was necessary to determine the quantity of the concerned psychotropic drug present in the natural produce is ascertained to see if it fell within the commercial quantity.

The Additional Public Prosecutor pointed out that the NDPS Act was amended by the Narcotic Drugs and Psychotropic Substances (Amendment Act) 2014, to clarify the legislative intent and to take entire quantity of drugs seized for determining the quantum of punishment instead of the pure drug content.

The court had also asked the expert to appear virtually who explained that it was not possible to weigh the quantity of the concerned chemical present in the mushroom. She explained that if the mushroom contained the particular chemical, it would have a hallucinating effect and thus it would be a psychotropic substance and its illegal possession would be an offence under the Act.

Thus, since the seized quantity was commercial in nature, the court was not inclined to grant bail and dismissed the petition.

Case Title: Dhanaraj v The Inspector of Police

Counsel for Petitioner: Mr.G.Karuppasamy for Mr.P.Senguttuarasan

Counsel for Respondents: Mr.R.M.Anbunithi Additional Public PRosecutor

Citation: 2024 LiveLaw (Mad) 453

Case No: CRL OP(MD)No.15148 of 2024