Rahul Rai v. State of Kerala, 2025 KER 2415 (Kerala HC) – Bail Application No. 9150 of 2024

Case Title & Citation: Rahul Rai v. State of Kerala, 2025 KER 2415 (Kerala HC) – Bail Application No. 9150 of 2024.
Decided on: 13 January 2025
Bench: Kerala High Court, Single Bench of Justice P.V. Kunhikrishnan

Background

The judgment originated from a bail application for the detention of a person accused of offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS). The court was asked to examine whether the seized substance, in this case, mushrooms and capsules containing psilocybin, qualified as a ‘commercial quantity.’

Facts of the Case

On 04 October 2024 at about 01.45 PM, the petitioner (Rahul Rai) was found in possession and transporting 6.59 gm of Charas, 13.2gm of Ganja, 226gm of Psilocybin contained magic mushrooms, and 50gm of 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, Kerala, in contravention of the provisions of the NDPS Act 1985 .

The case was registered against the petitioner, alleging offences punishable under Section 22(c) [Punishment for contravention in relation to psychotropic substances where the contravention involves commercial quantity] and 8(c) [Prohibition of produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance] read with 20(b)(ii)(A) [Punishment for contravention in relation to cannabis plant and cannabis involves small quantity] of the Narcotic Drugs and Psychotropic Substances Act, 1985 . The petitioner was arrested on October 4, 2024, and has been in judicial custody since then.
The petitioner approached the High Court for bail, arguing that the contraband did not fall within “commercial quantity” and therefore he was entitled to bail.

Issues before the Court

The Court framed the following key issues:
1. Whether mushrooms (fungi) containing psilocybin can be treated as a “mixture” of a psychotropic substance and neutral substances?
2. Whether, in the absence of a specific active psychotropic substance (psilocybin) in the seized mushrooms or capsules, the entire weight of the mushrooms or capsules can be treated as a commercial quantity?
3. Whether, on the facts of this case, the seized quantity falls below the “commercial quantity.”?
4. Whether Section 37 (non-bailable offence when commercial quantity is involved) of the NDPS Act is applicable?
Arguments of Parties

Petitioner’s arguments:

● The petitioner accepted that charas and ganja were seized. The Charas and Ganja alleged to be seized from the petitioner are admittedly small quantities.
● The other contraband seized from the petitioner was magic mushrooms and magic mushroom capsules. Contraband seized will not come within the purview of “commercial quantity,” and hence, Section 22(c) of the Act is not applicable.
● The prosecution failed to quantify the actual psilocybin content within the mushrooms and capsules; no separate weight of pure psilocybin was given.
● Evidenced by Annexure-A5 and based on the studies, the average Psilocybin content is 1% per one gram of Psilocybe cubensis mushroom, so even if the entire magic mushroom seized from the petitioner is taken as a whole, it will come within the purview of a small quantity.
● Mushrooms are fungi (organisms) and not a “mixture” of a psychotropic drug plus a neutral carrier.

Respondent’s arguments:

● The mushroom and capsules contain psilocybin, which is a scheduled psychotropic substance under the Notification (Serial No. 145), and the “small quantity” and “commercial quantity” thresholds are 2 gms and 50 gms, respectively.
● Quantities relating to the respective drugs 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 the existence of such substance is possible and not just its pure drug content.
● Relying on the judgment of the Apex Court in Hira Singh vs Union of India , “in case of seizure of mixture of Narcotic Drugs or Psychotropic Substances with one or more neutral substance(s), the quantity of neutral substance(s) is not to be excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the “small or commercial quantity” of the Narcotic Drugs or Psychotropic Substances’’.

Statutory Background

● Section 2(viia) of the NDPS Act defines “commercial quantity”, in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette.
● Section 2(xxiiia) of the NDPS defines “small quantity”, in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette.
● Serial No. 145 of Notification S.O. 1055(E) dated 19 October 2001 lists Psilocybin as a psychotropic substance: small quantity 2 gms; commercial quantity 50 gms.

Judgment

The court held that, “ I am not in a position to accept the contentions of the prosecution that mushroom is a mixture. It is only fungi.” As the same has been said by the Karnataka High Court in Saeidi Mozdheh Ehsan v. State of Karnataka , wherein paragraph 4 of the judgment mentions that, “Admittedly, the Magic Mushroom is not mentioned in the schedule to the NDPS Act. The report submitted by the Scientific Officer, FSL, Bangalore, does not specify the percentage of Psilocin and Psilocybin. In the absence of the percentage of the narcotic drug, it is manifest that the seized Magic Mushroom is not a commercial quantity.”

After reviewing the earlier judgments of the Karnataka High Court in Saeidi Mozdheh Ehsan v. State of Karnataka and Madras High Court in S. Mohan v. State through The Inspector of Police, Kodaikanal Police Station , the Court analysed whether mushrooms (fungi) containing psilocybin could be treated as a “mixture.” The court held that;
“ 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.”

The Court further observed that the report does not specify the actual weight of the psilocybin contained in the seized mushrooms and capsules; only the overall weight of the mushrooms and capsules was mentioned. The court perused Annexure-A5, which is an article published by the Faculty of Department of Medicine, University of British Columbia, titled “Therapeutic use of Psilocybin: Practical consideration for dosing and administration”. According to which average psilocybin content is less than 1% psilocybin per one gram of dried mushroom. The court concluded that:
“ In such circumstances, I am of the considered opinion that, there are no materials as of today to find that the petitioner was in possession of a commercial quantity of psilocybin. If commercial quantity is not applicable, the rigour under Section 37 of the NDPS Act is not applicable.”
Since the threshold for “commercial quantity” was not crossed, the Court held the provisions of Section 37 did not apply. The Court emphasised the settled principle that “bail is the rule and jail is the exception”.
The Court granted bail to the petitioner, subject to conditions on bond of ₹1 lakh, the petitioner to appear for investigation when required, no inducement or threat to witnesses, not leave India without permission, not commit similar offence, and the jurisdictional court to cancel bail if conditions violated.

Ratio Decidendi

● Mushrooms (fungi) containing psilocybin are not a “mixture” of a psychotropic substance and neutral substances under Note 4 of the Notification to the NDPS Act.
● Since Note 4 does not apply, one cannot count the full weight of mushrooms/capsules to determine “commercial quantity”. Instead actual psychotropic substance (psilocybin) weight must be considered.
● In the absence of a specific quantification of psilocybin, the seized quantity cannot be said to be a “commercial quantity” (50g threshold), and so the rigour of Section 37 (non-bailable) does not apply; bail is therefore permissible with conditions.

Significance

● This decision is a major development in NDPS jurisprudence regarding naturally occurring fungi (magic mushrooms) containing scheduled psychotropic substances.
● It clarifies that the mere presence of a scheduled psychotropic substance within a biological organism (fungus) does not automatically bring the organism under the “mixture” provisions of the statute.
● The judgment emphasises the importance of scientific quantification of the active scheduled substances, not the gross weight of an item containing it, for assessing quantity thresholds under the NDPS Act.
● The judgment opens discussion on whether the NDPS Act needs to be amended or notifications revised to expressly include organisms like mushrooms if the legislature wishes to regulate them in the same way as manufactured substances.

Conclusion

In Rahul Rai v. State of Kerala, the Kerala High Court has delivered an important judgment making it clear that mushrooms (fungi) containing a scheduled psychotropic substance (psilocybin) cannot be treated as a “mixture” for quantity determination under the NDPS Act.
By actual quantification of the scheduled substance rather than the overall weight of the seized item, the Court reinforced the statutory safeguards in the Act and upheld the principle of bail as a rule rather than an exception when a commercial quantity is not made out.