Possession of a natural substance like Magic Mushroom can't be classified as contraband without clear measurement of its narcotic content; bail granted despite past conviction under NDPS due to completed investigation and meeting legal requirements.

ORDER :

N. ANAND VENKATESH, J.

The Court made the following order :-

The petitioner / Accused, who was arrested and remanded to judicial custody on 11.08.2024 for the alleged offences under Sections 8 (c), 22(c) of NDPS Act, 1985, in Crime No.286 of 2024, on the file of the respondent police, seeks bail.

2. The case of the prosecution is that the petitioner was found in possession of 56 grams of Magic Mushroom. The petitioner was arrested and remanded to judicial custody on 11.08.2024 and the entire contraband has been seized.

3. The learned Additional Public Prosecutor appearing on behalf of the respondent Police submitted that the Police have followed the mandatory requirements under the Act and have seized the contraband from the petitioner. The learned Additional Public Prosecutor further submitted that the quantity in excess of 50 grams is considered to be a commercial quantity.

4. The learned Additional Public Prosecutor further submitted that this Court had an occasion to deal with the issue as to whether the presence of Psilocybin must be separately measured or the quantity of the Magic Mushroom must be treated equal to the presence of chemical Psilocybin which has been shown to be a psychotropic substance in the table. To substantiate this submission, the learned Additional Public Prosecutor relied upon the order passed in Crl.O.P(MD)No.15148 of 2024, dated 21.10.2024.

5. The learned Additional Public Prosecutor further submitted that there is one previous case against the petitioner for offence under NDPS Act and the petitioner was also convicted in that case in C.C.No.137 of 2019 by Judgment, dated 10.10.2019 passed by the learned Sessions Judge, Special Court for EC & NDPS Act Cases, Madurai.

6. The learned Additional Public Prosecutor further submitted that the petitioner has not satisfied the twin requirement of Section 37 of NDPS Act and hence, he is not entitled to be enlarged on bail. Accordingly, he vehemently opposed grant of bail to the petitioner.

7. The learned counsel for the petitioner submitted that the petitioner has suffered incarceration in this case from 11.08.2024. The learned counsel further submitted that the previous case pertains to the year 2019 and thereafter, the petitioner was never involved in any offence under NDPS Act.

8. The learned counsel for the petitioner relied upon the order passed by this Court in Crl.O.P(MD) No.19504 of 2024, dated 27.11.2024 and submitted that even though there is presence of Psilocybin, the quantity of Psilocybin that is present in the Magic Mushroom that is said to have been seized has not been independently assessed and therefore, it cannot be presumed that the petitioner was in possession of commercial quantity.

9. This Court has carefully considered the submissions made on either side and the materials available on record.

10. This Court will first go into the order relied upon by the learned Additional Public Prosecutor in Crl.O.P(MD) No.15148 of 2024, dated 21.10.2024. The relevant portions in the order are extracted hereunder:

“5. On the contention of the learned Counsel for the petitioner, this Court had directed the concerned expert to appear before this Court virtually. The expert submitted that it is not possible to weigh the quantity of the concerned chemical which is present in the mushroom. According to her, if the mushroom contains the particular chemical, then that will have an hallucinating effect and therefore that would be a psychotropic substances and illegal possession are used thereof would be an offences under the Act.

6. As a matter of fact, prima facie from