Magic Mushroom Not A Narcotic Substance, Just Fungi: Kerala High Court

Mushrooms and magic mushrooms are neither scheduled narcotic or psychotropic substances nor mixtures as defined under the Narcotic Drugs and Psychotropic Substances Act but merely fungi, the Kerala High Court has observed while granting bail to a Bengaluru man who was arrested in an NDPS case.

The petitioner, Rahul Rai, was arrested by Mananthavady excise officials from Thrissilery on Oct. 4 with 6.59 gm of charas, 13.2 gm of ganja, 226 gm of psilocybin-containing magic mushrooms, and 50 gm of psilocybin-containing mushroom capsules. Psilocybin is a scheduled narcotic drug.

When considering Rai's bail plea, Justice P V Kunhikrishnan held that although magic mushrooms contain small amounts of psilocybin, it could neither be considered a narcotic drug by itself nor was it a mixture of a drug and a neutral substance. This view was also supported by judgments rendered by the Karnataka High Court in the Saeidi Mozdheh Ehsan v. State of Karnataka, and the Madras High Court in the S. Mohan v. State.

Justice Kunhikrishnan also noted that the quantities of charas and ganja were relatively small, making him eligible for bail. However, the total weight of the psilocybin products, which amounted to 276 gm, raised questions. Rai's counsel argued that the prosecution had failed to specify the psilocybin content in the seized magic mushrooms.

The public prosecutor opposed the bail, asserting that under the NDPS Act, a small quantity of psilocybin is defined as 2 gm, while the commercial quantity is set at 50 gm. The prosecution contended that any mixture containing narcotic or psychotropic substances should be assessed in its entirety when determining whether it falls under 'commercial' or 'small' quantity.

The high court, however, rejected the state's view, concluding that there was insufficient evidence to demonstrate that Rai possessed a commercial quantity of psilocybin. It also noted that psilocybin is not chemically combined with the mushroom but occurs naturally as an active compound within the mushrooms.

Citing studies that the psilocybin content in mushrooms is only about 1% per gm, the court clarified that only the weight of psilocybin should be considered for determining the quantity of contraband under the NDPS Act, and not the entire weight of the mushrooms.

Since the quantity did not meet the commercial quantity threshold, the restrictions outlined in Section 37 of the NDPS Act, which typically prevent the granting of bail, were deemed inapplicable.