Possession of natural substances with psychotropic chemicals is assessed by total weight for commercial classification, not just chemical purity.

ORDER :

D. BHARATHA CHAKRAVARTHY, J.

The Court made the following order :-

The petitioner/Accused, who was arrested and remanded to judicial custody on 27.07.2024 for the offences punishable under Sections 8 (c), 22(C), 20(b) (ii)(A) of NDPS Act, in crime No.268 of 2024, on the file of the respondent police, seeks bail.

2. The learned Counsel for the petitioner would submit that in this case even though the scientific report is now received and it contains the chemical namely, Psilocybin, it should be seen that the further ingredients with reference to the chemicals mentioned therein, is not mentioned in the report. He would further submit that the magic mushroom is a natural produce. In the said natural produce, how much quantity of the concerned psychotropic drug is present, is not mentioned in the report. If only the quantity of the drug exceeds 550 grams, it would become a commercial quantity and not the total weight of the mushroom itself should be considered. The learned Counsel for the petitioner would also rely upon the judgment of the learned Single Judge of the Karnataka High Court, dated 03.05.2013 made in Criminal Petition No.17 of 2013, morefully relying upon paragraph No.6 and the same is extracted hereunder:

“The contention of the learned Government Pleader that the Magic Mushroom is a mixture as notified under the notification dated 18.11.2009 and the scientific report specifies the presence of narcotic drug and therefore the provisions of NDPS Act are applicable is unacceptable to me. It is not in dispute that the Magic Mushroom is a natural produce and as such the same do not fall under the definition of mixture. The quantity of the substance is to be taken into consideration to find out whether the seized drug falls within the category of small quantity or commercial quantity. In the instant case the scientific report do not specify the percentage of presence of Psilocin and Psilocybin. In the absence of any such material on record it is no possible to accept the contention of the learned Government Pleader that the seized Magic Mushroom is a mixture.”

3. Per contra, the learned Additional Public Prosecutor would submit that only to overcome such arguments, the NDPS Act itself was amended by Narcotic Drugs and Psychotropic Substances (Amendment Act 2014) (Central Act No.16 of 2014) and the said amendment seeks to clarify the legislative intent to take the entire quantity of drugs seized and determining the quantum of punishment and not the pure drug content and would oppose the prayer of the petitioner.

4. Heard the Counsel on either side and perused the material records of the case.

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 the informal interaction with the expert at the stage of grant of bail, it can be seen that the particular type of mushroom, namely, the magical mushroom, every cell contains the said chemical. If the produce is a natural produce and every cell of the same contains a chemical, then prima facie I am of the opinion that the entire material has only to be weighed and consider