Magic mushroom not a narcotic substance under NDPS Act: Kerala High Court

The Kerala High Court recently observed that magic mushrooms are not scheduled narcotic substances under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) [Rahul Rai v State of Kerala]..Therefore, it cannot be treated as a mixture of a neutral substance and a psychotropic substance under the NDPS Act, the Court added. This finding was crucial to determining whether a man accused of possessing and transporting narcotic drugs was, prima facie, carrying a commercial quantity of illegal drugs and what his chances of bail were. Justice PV Kunhikrishnan held that although magic mushrooms contain small amounts of psilocybin (a scheduled narcotic drug), it could not be considered a narcotic drug by itself nor was it a mixture of a drug and a neutral substance. This view was supported by judgments rendered by the Karnataka High Court and the Madras High Court. .Notably, if the Court had held magic mushrooms to be a mixture under the Act, the overall quantity of the mushrooms would have been weighed to determine if the accused was carrying a commercial quantity (50 grams and above) of contraband, as opposed to measuring only the psilocybin.This rule regarding mixtures was laid down in Note 4 of a Table to the NDPS Act. The Court, however, ruled that this rule did not apply to magic mushrooms, as such mushrooms were not mixtures."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," Justice Kunhikrishnan said..The Court made the observation while granting bail to a man accused of possessing charas, ganja, and 276 grams of magic mushrooms containing psilocybin (a psychedelic compound found in 'magic mushrooms'), and 50 grams of psilocybin-contained magic mushroom capsules.The grant of bail in such cases is relatively easier if the quantity of the drug seized is of a small quantity and not a commercial quantity. The Court noted that the amount of charas and ganja seized in this case was admittedly of a small quantity.The question of bail, therefore, hinged upon whether the magic mushrooms allegedly found in the accused man's possession constituted a commercial quantity of contraband..The accused man's counsel contended that even if the entire mushroom weight was considered, the psilocybin content in them would be minimal, meaning that only a small quantity of contraband could be attributed to the accused. The State countered that magic mushrooms should be treated as a mixture containing psilocybin. If this is done, the entire weight of the mushrooms (and not just the psilocybin) seized from the accused would exceed the threshold for 'commercial quantity', going by Note 4 to a Table under the NDPS Act. .The Court, however, rejected the State's view. The Court noted that psilocybin is not chemically combined with the mushroom but occurs naturally as an active compound within the mushrooms. It further took note of studies that the psilocybin content in mushrooms is only about 1 per cent per gram.It, therefore, rejected the prosecution's reliance on Note 4 and clarified that only the weight of psilocybin should be considered for determining the quantity of contraband under the NDPS Act, not the entire weight of the mushrooms."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 Court added.The Court concluded that quantity of contraband seized from the accused in this case would, therefore, not be of a commercial quantity. "There are no materials as of today to find that the petitioner was in possession of commercial quantity of psilocybin. If commercial quantity is not applicable, the rigour under Section 37 of the NDPS Act (when it comes to grant of bail) is not applicable," it said. The Court proceeded to grant him bail on various conditions, after noting that he had no criminal history and given that he had remained in jail for 90 days since his arrest in October 2024. .Advocates Nirmal S and Veena Hari appeared for the bail applicant.Public Prosecutor Naushad KA appeared for the State..[Read Order]