NDPS Act| 'Magic Mushroom' Not A Scheduled Narcotic/Psychotropic Substance, Can't Be Treated As A Mixture But Only A Fungi: Kerala HC

The Kerala High Court has reiterated that mushroom or magic mushroom cannot be treated as a scheduled narcotic or psychotropic substance under the Narcotic Drugs and Psychotropic Substances Act.Justice P.V.Kunhikrishnan referred to Karnataka High Court decision in Saeidi Mozdheh Ehsan v. State of Karnataka and Madras High Court decision in S. Mohan v. State through The Inspector of Police, Kodaikanal Police Station, to state that mushroom cannot be considered as a mixture but only as a fungi. It thus said:“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.”In the facts of the case, the Court was hearing a bail petition of the petitioner who was arrested in October 2024 for possession and transportation of charas, ganja and 226gm of Psilocybin contained magic mushroom and 50gm Psilocybin contained magic mushroom capsules. Crime was registered alleging commission of offences punishable under Section 22(c) & 8(c) r/w 20(b)(ii)(A) of the NDPS Act. The Counsel for the petitioner submitted that charas and ganja were found in small quantities, and Psilocybin contained in magic mushroom and magic mushroom capsules were not separately quantified. It was also argued that the average psilocybin content in Psilocybe cubensis mushrooms is 1% per gram, and that even if the entire quantity of magic mushrooms seized from the petitioner is considered in its entirety, it would still fall within the definition of a small quantity. The Court found that the charas and ganja seized from the petitioner were in small quantities. It further stated that as per the NDPS Act, the mushroom or magic mushroom is not a narcotic drug or psychotropic substance.The Court further noted Psilocybin is contained in the magic mushroom seized from the petitioner. Relying upon Apex Court decision in Hira Singh v State of Union of India, the Court stated that quantity of neutral substances in a mixture containing narcotic drugs or psychotropic substances must be taken into account along with the actual weight of the offending drug while determining 'small or commercial quantity' under the NDPS Act. Court stated, “Therefore, it is clear that, if a mixture of narcotic drug or psychotropic substance with one or more neutral substance or a solution or any one or more narcotic drug or psychotropic substance of that particular drug in dosage form or isomers, esters, ethers and salts of these drugs including salts of esters, ethers and isomers, wherever existence of such substances is possible and not just its pure drug content, the entire mixture is to be considered while determining 'commercial quantity' or 'small quantity'.”The Court went on to state that mushroom is to be considered as a fungi and not a mixture. Referring to Karnataka High Court's decision, the court said, "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. The Karnataka High Court in Saeidi Mozdheh Ehsan v. State of Karnataka , considered a similar question". In the facts of the case, the Court stated that the quantity of Psilocybin content seized from the mushrooms and mushroom capsules were not separately shown to determine whether the level of Psilocybin was in small or commercial quantity. Thus, the Court concluded that there was no evidence showing that the petitioner was in possession of commercial quantity of psilocybin. Court added, “If commercial quantity is not applicable, the rigour under Section 37 of the NDPS Act is not applicable.”Thus, considering the fact that there were no criminal antecedents and that the petitioner had been in custody for about 90 days, the Court allowed his bail application.Counsel for Petitioner: Advocate Nirmal S, Veena HariCounsel for Respondents: Public Prosecutor Nuashad K ACase Title: Rahul Rai v State of KeralaCase Number: Bail Appl. No. 9150 Of 2024Citation: 2025 LiveLaw (Ker) 23Click here to read/download Order

NDPS Act| 'Magic Mushroom' Not A Scheduled Narcotic/Psychotropic Substance, Can't Be Treated As A Mixture But Only A Fungi: Kerala HC

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The Court held that only the quantity of 'psylocybin' present in the mushroom can be measured to determine 'commercial quantity'.

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