IMPORTANT POINT
The court ruled that the total weight of narcotic mixtures must be considered for determining commercial quantity, and emphasized that bail is the rule, not the exception.

ORDER

This Bail Application is 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.

2. The petitioner is the accused in Crime No.92/2024 of Mananthavady Excise Circle O Wayanad. The above case is registered against the petitioner alleging o Section 22(c) & 8(c) r/w 20(b)(ii)(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘Act 1985’). The petitioner was arrested on 04.10.2024 and has been in judicial custody since then.

3. The prosecution case in brief is that, on 04.10.2024 at about 01.45 PM, the accused was found in possession and transporting 6.59 gm of Charas, 13.2gm of Ganja, 226gm of Psilocybin contained magic mushroom and 50gm Psilocybin contained magic mushroom capsules, while travelling in the ISUZU V-cross Car bearing registration No.KA.02-MM 3309 at Edayakode Colony, Thrissilery Taluk in contravention of the provisions of Act 1985. Hence, it is alleged that the accused committed the above said o

4. Heard Adv. Smt. Veena Hari, the learned counsel appearing for the petitioner and the Senior Public Prosecutor Adv. Sri. Noushad K.A., for the State.

5. Adv. Smt. Veena Hari submitted that, even if the entire allegations are accepted, the contraband seized will not come within the purview of “commercial quantity†and hence, Section 22(c) of the Act 1985 is not applicable. Therefore, the counsel submitted that the petitioner is entitled bail. Adv. Veena Hari submitted that the Charas and Ganja alleged to be seized from the petitioner are admittedly small quantities. She also contended that the other contraband seized from the petitioner was magic mushrooms and magic mushroom capsules. It is the case of the counsel that Psilocybin contained magic mushrooms and Psilocybin contained magic mushroom capsules seized from the petitioner are about 276 gms. The counsel submitted that the Psilocybin contained in these magic mushrooms is not separately quanti the prosecution. The counsel also relied on an article which is available on the Internet as evidenced by Annexure-A5 and submitted that based on the studies, the average Psilocybin content is 1% per one gram of Psilocybe cubensis mushroom. Hence, it is submitted that, even if the entire magic mushroom seized from the petitioner is taken as a whole, it will come within the purview of small quantity and the petitioner is entitled bail. The counsel also submitted that the petitioner is in custody from 04.10.2024 onwards. The counsel submitted that the petitioner is a person who obtained an MS Degree in Computer Science from Rochester Institute of Technology, United States of America. It is also submitted that the petitioner was working in Dell Computers as a Cyber Security Analyst in the United States of America. The petitioner produced Annexure-A2 and A3 to prove the same. It is the case of the petitioner that, he has come to India in connection with his mother’s illness. The petitioner produced Annexure-A4 Discharge Summary of his mother who has renal failure and had a kidney transplant. The counsel also submitted that the petitioner is ready to abide by any conditions that may be imposed by this Court, if bail is granted to him.

6. Adv. Sri. Noushad K.A., the learned Senior Public Prosecutor, seriously opposed the bail application. The Public Prosecutor took me through serial No.145 of the Table in the Act 1985 and submitted that the small quantity of Psilocybin is 2 gm and commercial quantity is 50gm. The Public Prosecutor also took me through Note 4 below the Table and submitted that the quantities shown in columns No.5 and 6 of the Table relating to the respective drugs shown in Column No.2 shall apply to the entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers and salts of these drugs, including salts esters, ethers and isomers, wherever existence of such substance is