Safiya Malik

The Kerala High Court granted bail to an individual accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), ruling that psilocybin mushrooms cannot be classified as scheduled narcotic or psychotropic substances. The Court observed that the absence of quantified psilocybin content in the seized substances meant the case did not meet the criteria for "commercial quantity" under the NDPS Act.

The petitioner was arrested on October 4, 2024, for the possession and transportation of charas, ganja, 226 grams of psilocybin-containing mushrooms, and 50 grams of psilocybin-containing mushroom capsules. A crime was registered against the petitioner for alleged offences punishable under Sections 22(c) and 8(c) read with Section 20(b)(ii)(A) of the NDPS Act.

Advocate Veena Hari, representing the petitioner, submitted that the quantities of charas and ganja seized were below the threshold for "small quantity" under the NDPS Act. Regarding the psilocybin-containing mushrooms, the petitioner argued that the psilocybin content was not quantified. It was also contended that, even assuming an average psilocybin content of 1% per gram in Psilocybe cubensis mushrooms, the total quantity would fall within the "small quantity" category.

The prosecution, represented by Senior Public Prosecutor Naushad K.A., argued that the entire weight of the mushrooms and capsules should be considered under the NDPS Act’s definition of "mixture." The prosecution relied on the Supreme Court’s decision in Hira Singh & Another v. Union of India, which held that neutral substances in mixtures containing narcotic drugs must be considered when determining small or commercial quantities.

Justice P.V. Kunhikrishnan addressed whether psilocybin mushrooms could be classified as narcotic drugs or psychotropic substances and whether they met the criteria for commercial quantity under the NDPS Act.

The Court stated that psilocybin mushrooms are not explicitly listed as narcotic or psychotropic substances under the NDPS Act. Referring to decisions from the Karnataka High Court (Saeidi Mozdheh Ehsan v. State of Karnataka) and Madras High Court (S. Mohan v. State of Tamil Nadu), the Court recorded:

“Mushroom or magic mushroom cannot be treated as a mixture. It is only fungi. Admittedly, the mushroom or magic mushroom is not a scheduled narcotic or psychotropic substance.”

The Court stated that psilocybin content must be separately quantified to determine whether the quantity qualifies as small or commercial.

The Court referred to  the Supreme Court’s ruling in Hira Singh, which mandates that the weight of the entire mixture, including neutral substances, must be considered when determining the quantity of a narcotic drug. However, the Court noted:

“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.”

The Court observed that psilocybin content in the seized mushrooms and capsules was not quantified in the Forensic Science Laboratory (FSL) report. Justice Kunhikrishnan stated:

“There are no materials as of today to find that the petitioner was in possession of a commercial quantity of psilocybin.”

Citing the Supreme Court judgments in P. Chidambaram v. Directorate of Enforcement and Manish Sisodia v. Directorate of Enforcement, the Court reiterated the principle that bail is the rule and jail is the exception. It observed that without evidence of a commercial quantity, the stringent bail provisions under Section 37 of the NDPS Act were inapplicable.

The Court granted bail to the petitioner on the following conditions:

1. The petitioner shall execute a bond of ₹1,00,000 with two solvent sureties.

2. The petitioner must appear before the investigating officer as and when required.

3. The petitioner is prohibited from leaving India without prior court permission.

4. The petitioner must not commit any offence similar to the charges alleged.

5. Any violation of the conditions will lead to bail cancellation by the jurisdictional court.

The petitioner was represented by Advocates Veena Hari and Nirmal S. The State of Kerala was represented by Senior Public Prosecutor Naushad K.A.

Case Title: Rahul Rai v. State of Kerala
Case Number: Bail Application No. 9150 of 2024
Bench: Justice P.V. Kunhikrishnan

[Read/Download order]