High Court · 2025

CRL.A.(MD)No.1112 of 2023 & 129 of 2024accused A1 and A2 approached PW3 and collected the parcel. Immediately, PW1 and his team nabbed A1 and A2 and they conducted search and found that the said parcel contained both hashish oil and another chunk material containing psilocybin. A1 and A2 informed about Murugesan, namely, A3 who has residence at Coimbatore. Hence, the team reached Murugesan's house at Coimbatore and conducted search in the presence of the PW6 on 24-10-2021 and recovered another parcel of 20 grams of the hashish oil and 221 grams of psilocybin. The samples were taken. Thereafter, all the accused were arrested and PW1 submitted the report under section 57 to the superior. Thereafter, PW8 continued the investigation by obtaining the chemical analysis report and after completing all the formalities filed a complaint as empowered under section 36A of the NDPS Act before the learned Additional District and Sessions Judge/Presiding Officer, Special Court for EC and NDPS Act Cases, Pudukkottai and same was taken on file in the CC No. 75 of 2022.Page 6/27 https://www.mhc.tn.gov.in/judis CRL.A.(MD)No.1112 of 2023 & 129 of 2024 3.The learned trial judge after framing the necessary charges, summoned the accused and served the copies under section 207 Cr.P.C., and questioned the accused. The accused pleaded not guilty and they stood for trial. The prosecution to prove the case examined PW1 to P.W.29 and marked Ex.P1 to Ex.P83 and material objects M.O.1 to M.O.11. The learned trial judge questioned the accused under section 313 Cr.P.C., and the same was denied as false and neither defense witness was examined nor defense document was produced on the side of the accused. The learned trial judge, considering the same, convicted the accused only under section 8(c)r/w 22(b) and 29 of the NDPS Act, 1985 for possessing “intermediate quantity” and not convicted him for the possession of commercial quantity by passing the impugned judgment. Challenging the conviction and sentence passed for trafficking intermediate quantity”, the accused filed the appeal number in Crl.A.(MD).No.129 of 2024 and the department filed the appeal, challenging the conviction Page 7/27 https://www.mhc.tn.gov.in/judis CRL.A.(MD)No.1112 of 2023 & 129 of 2024under the category “intermediate quantity” and not under “the commercial quantity” on the basis of the Hira singh's case . 4.The learned counsel for Appellant and the learned Senior counsel appearing for the department argued about the narrow question ie, whether the chunk material recovered from the accused mixed with the honey would come under the category of commercial quantity. The learned Senior counsel for the department argued that the total weight of honey and psilocybin has to be taken for the fixing the commercial quantity. The learned counsel for the appellant would make a submission on the basis of the unreported judgment of this Court in Crl.O.P.(MD).No.19589 of 2024 and argued that the magic mushroom does not come under purview of NDPS Act, 1985 and therefore, he seeks to acquit the accused for the alleged trafficking of psilocybin. Page 8/27 https://www.mhc.tn.gov.in/judis CRL.A.(MD)No.1112 of 2023 & 129 of 20245.The learned Special Public Prosecutor appearing on behalf of the department would submit that any chunk material containing psilocybin would come under the purview of the Act and also as per the definition of the “psychotropic substance” if it contains a natural substance and materials, the presence of the psilocybin itself is enough to prove that the seized chunk material is a psychotropic substance. The learned Senior counsel also made a detailed submission about the definition of psychotropic substance and distinguished the judgment relied by the learned counsel for the accused.6.This Court considered the rival submissions made by the learned counsel appearing for the accused and the learned Special Public Prosecutor and perused the materials available on record and the precedents relied upon by them.7.Now, the narrow question is, whether the chunk material containing the psychotropic substance namely psilocybin can be Page 9/27 https://www.mhc.tn.gov.in/judis CRL.A.(MD)No.1112 of 2023 & 129 of 2024treated as psychotropic substance as a punishable offence?7.1.Whether the entire weight of chunk material with honey is to be taken for determination of the quantity?7.2.Whether the case would come under the commercial quantity or intermediate quantity? 8. Chunk material contained “psilocybin” and the said psilocybin is psychotropic substance. The definition of “psychotropic substance” is as follows:Section 2(xxiii) defines “psychotropic substance” thus: "psychotropic substance" means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule”9. From the reading of the definition it is clear that either “any natural substance” or “any natural material” would come Page 10/27 https://www.mhc.tn.gov.in/judis CRL.A.(MD)No.1112 of 2023 & 129 of 2024under the definition of the Act. The recovered contraband is a “fungai” and it is a natural material. The same contained psilocybine. Psilocybine is a psychotropic substance. Therefore any natural material with Psilocybine would come under the purview of the Act. Therefore there is no necessity to include the fungai in the Act as a scheduled drug. 8(c) of the Act reads as follows: 8. Prohibition of certain operations.—No person shall—(a)cultivate any coca plant or gather any portion of coca plant; or(b)cultivate the opium poppy or any cannabis plant; or(c)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, Section 22 of the NDPS Act is as follows: 22. Punishment for contravention in relation to psychotropic substances.—Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports Page 11/27 https://www.mhc.tn.gov.in/judis CRL.A.(MD)No.1112 of 2023 & 129 of 2024inter-State, exports inter-State or uses any psychotropic substance shall be punishable,--(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees or with both;(b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.9.1. As per section 8(c) of NDPS Act no person shall possess any psychotropic substance. If any person intentionally contravenes the provisions of the Act and possesses any psychotropic substance they would be punished under section 22 Page 12/27 https://www.mhc.tn.gov.in/judis CRL.A.(MD)No.1112 of 2023 & 129 of 2024proportionate to the quantity. The legislature in its wisdom very clearly demarcated narcotic drugs and psychotropic substance. Any form of possession of the psychotropic substance is an offence. Purpose of the Act is to control and regulate the operation relating to narcotic drugs and psychotropic substance. In the statement of objects and reasons (iv) it is stated as:(iv) During recent years new drugs of addiction which have come to be known as psychotropic substances have appeared on the scene and posed serious problems to national governments. There is no comprehensive law to enable exercise of control over psychotropic substances in India in the manner as envisaged in the convention on psychotropic substances, 1971 to which India also has acceded. In view of what has been stated above, there is an urgent need for the enactment of a comprehensive legislation on narcotic drugs and psychotropic substances which, inter alia, should consolidate and amend the existing laws relating to narcotic drugs, strengthen the existing controls over drug abuse, considerably enhance the penalties particularly for trafficking offences, make provisions for exercising effective control over psychotropic substances and make provisions for the implementation of international conventions relating to narcotic drugs and Page 13/27 https://www.mhc.tn.gov.in/judis CRL.A.(MD)No.1112 of 2023 & 129 of 2024psychotropic substances to which India has become a party.9.2. The purpose of the NDPS Special Act is to combat the menace of drug abuse. Applying the purposive interpretation, and to avoid the unworkable interpretation to whittledown the object of the Act and to avoid the unintended ambiguity, this court considering the drug menace which not only ruin the life of the young persons and also affect the fabric of the society is inclined to apply theory of purposive interpretation and apply the functional approach to the meaning of the psychotropic substance and without any doubt holds that the recovered fungai which contains psilocybine, a notified psychotropic substance as Item No.10 of the schedule and hence the prosecution for the possession of the psilocybine in the form of fungai is an offence. In the recent years usage of new drugs of psychotropic substances posed serious problem to the Government. Therefore the Government brought the Act with comprehensive definition of psychotropic substances. The legislature clearly drafted the Page 14/27 https://www.mhc.tn.gov.in/judis CRL.A.(MD)No.1112 of 2023 & 129 of 2024definition with words “Any natural material” “Any natural substances”. Fungai is a natural material. Varieties of fungai are available. The fungai containing the psilocybine would come under the definition of the Act. It is not necessary to prescribe the name of the natural material in the Act. What is required is see whether the natural material contains psychotropic substances or not. When the law makers have provided a broad definition, it is the duty of the court to have functional approach keeping in mind the legislative intention and to meet the ostensible purpose by avoiding a bare mechanical interpretation of the words which would render the legislature insane. The duty cast upon the court is to apply the workable interpretation without creating unintended ambiguity, absurdity. The Hon'ble Supreme Court in the latest decision after elaborate discussion about the psychotropic substance has held in the Crl.A.No.1319 of 2013 as follows: “156. It cannot be said that the dealing in of “Buprenorphine Hydrochloride” would not amount to an Page 15/27 https://www.mhc.tn.gov.in/judis CRL.A.(MD)No.1112 of 2023 & 129 of 2024offence under Section 8 of the NDPS Act owing to the fact that the said psychotropic substance only finds mention under the Schedule to the NDPS Act and is not listed under Schedule I of the NDPS Rules. There exists nothing to indicate that Rules 53 and 64 of the NDPS Rules respectively, are the governing rules in their respective Chapters, more so, when the language of the other rules in Chapters VI and VII respectively, are clear about their application to the substances mentioned under the Schedule to the Act as well. 157. All the psychotropic substances mentioned under the Schedule to the Act have potential grave and harmful consequences to the individual and the society at large, when abused. Some psychotropic substances mentioned under the Schedule to the NDPS Act are also mentioned under the D&C Act and the rules framed thereunder. This is only because those substances while capable of being abused for their inherent properties could also be used in the field of medicine. However, the mere mention of certain psychotropic substances under the D&C regime would not take them away from the purview of the NDPS Act, if they are also mentioned under the Schedule to the NDPS Act.” 9.3. Therefore the definition of psychotropic substances in Page 16/27 https://www.mhc.tn.gov.in/judis CRL.A.(MD)No.1112 of 2023 & 129 of 2024section 2(xxiii) of NDPS Act was never intended to exclude the natural material which contains psychotropic substances. 9.4. Similar issue also affirmatively considered by the Hon'ble Seven Judges Bench of Canada Supreme Court in the case of Her Majesty the Queen Vs. Barry Wayne Dunn reported in 1982 SCC OnLine Can SC 105. Therefore the argument of the counsel for the appellant that the fungai is not notified as a drug and therefore the said natural product does not come under the purview of the psychotropic substances is misconceived one. Therefore this court is unable to subscribe to the argument of the learned counsel for the appellant that fungai does not come under the purview of the Act. 9.5. The learned counsel relied the judgment of this Court in Crl.O.P.(MD) No.19589 of 2024. Hon’ble Judge of this court while dealing with a bail application has held as follows:“14.At the stage of deciding the bail application by Page 17/27 https://www.mhc.tn.gov.in/judis CRL.A.(MD)No.1112 of 2023 & 129 of 2024taking note of Section 37 of NDPS Act, the Court must only be satisfied on the overall circumstances and the point of law that has been raised and the Court must look at the material in a broad manner and prima facie satisfy itself that there is a reasonable chance of the accused to be held not guilty. It is not necessary for the Court to undertake a meticulous examination of the materials collected during the investigation. That is the reason why when the earlier order was passed in Crl.O.P(MD) No.19504 of 2024, this Court merely went by the language used in the Enactment and prima facie gave a finding that Magic Mushroom cannot be either called as a Narcotic drug or a psychotropic substance in its natural form. The reasons have also been assigned in the earlier order. 15.It must be made very clear that this is only a prima facie view and the finding should not be taken to be final. It is always left open for the prosecution to raise this issue before the trial Court and put forth their grounds.” 9.6. In the said bail order, there is no discussion about the section 2 (xxiii) of NDPS Act and also this court left open the Page 18/27 https://www.mhc.tn.gov.in/judis CRL.A.(MD)No.1112 of 2023 & 129 of 2024question.9.7. The present case is seizure of the natural material with the presence of the psilocybine, a listed psychotropic substances attracting the provision of the Act. The appellant had involved in trafficking and possession of the said “Mushroom” containing the psilocybine, a psychotropic substance. It is not the case of the Appellant that he was in possession of ordinary mushroom not containing psilocybine. Therefore the prosecution clearly proved the possession of the psilocybine contained mushroom along with the Hashish oil with necessary intention and knowledge and therefore the prosecution is legal and conviction and sentence of imprisonment under section 22(c) of NDPS Act is in accordance with law. 10.From the above definition it is clear that the chunk material with psychotropic substance comes under the purview of the Act. Therefore, this Court holds that the contention of the Page 19/27 https://www.mhc.tn.gov.in/judis CRL.A.(MD)No.1112 of 2023 & 129 of 2024learned counsel appearing for the accused on the basis of the bail order that mushroom does not come under the Act is misconceived one and hence, this Court holds that the recovered chunk material with psychotropic substance is within the purview of the Act. 11.But this court is unable to concur with the argument of the learned Senior counsel that when honey was mixed with chunk material with the psychotropic substance, total weight of honey with psychotropic substance should be taken. This Court on fact finds that when there is a specific finding by the learned trial judge that the sample S3, contained 25 grams of representative sample and same contained psilocybin and also honey. The scientific report also did not specify the percentage of the presence of honey. In the absence of specific finding regarding percentage of honey it can not be treated as a mixture. Mixture is entirely different and has a different meaning and also the Hira Singh case is also not applicable as observed above. Therefore, the Page 20/27 https://www.mhc.tn.gov.in/judis CRL.A.(MD)No.1112 of 2023 & 129 of 2024learned trial judge correctly has come to the conclusion that the appellant is liable to be punished for the intermediate quantity and hence this court finds no merit in the contention of the learned Senior Counsel to convict the appellant for possession of commercial quantity. Apart from that, this court, in view of the above specific discussion, has not accepted the contention of the learned counsel for the accused that the seized chunk material does not come under the purview of the Act, even though it contained the psilocybin a pyschotrapic substance.12.Proof of recovery from A1 to A3:According to P.W.3/ courier agent, he received the consignment with bag Bill No.R.43805701 with the following particulars:DTDC courier OfficerConsignor Name: Ameer suhail, 9400154808Consignee Name: Murugesan Melnelaipattii, Aribalam Road, North Street, Pudukottai, Page 21/27 https://www.mhc.tn.gov.in/judis CRL.A.(MD)No.1112 of 2023 & 129 of 2024 Tamil Nadu 622 202 Phone:881602433712.1.The said address was not serviceable address for delivery. Therefore, they contacted the phone number mentioned in the consignment receipt. Thereafter, A1 and A2 came around 09.00 pm and collected the same. Immediately, P.W.1 seized the contraband. A1 and A2 disclosed the involvement of A3. Further, contraband also was recovered from the house of A3. A3 had made a number of phone calls to A1 and A2 at the relevant point of time, from his mobile number. Apart from that, he obtained the mobile number in fictitious name. 12.2.P.W.1 recovered the contraband in the presence of P.W.4. P.W.1 and P.W.4 cogently deposed that A1 and A2 received the courier from the agent namely, P.W.3. P.W.4/Village Administrative Officer cogently deposed about the recovery of parcel which contained 221 grams of chunk material contining psilocybin and 620 grams of plastic pouch containing hashish oil. Page 22/27 https://www.mhc.tn.gov.in/judis CRL.A.(MD)No.1112 of 2023 & 129 of 2024A1, A2 disclosed about the residence of A3. Thereafter, search was conducted in the house of A3 at Coimbatore in the presence of P.W.6. P.W.6 clearly deposed about the search and seizure of 21.48 grams of Hashish oil and 220 grams of psilocybin. The evidence of P.W.4 and P.W.6 are cogent and they were subjected to detailed cross examination but nothing was elicited to discard their evidence. Therefore, the recovery has been proved. All the above said circumstances clearly proved that A1 to A3 conspired together and involved in the trafficking of the above contraband. Therefore, the prosecution also clearly proved the case under Section 29 of the NDPS Act.13.In result, 13.1.The Criminal Appeal in Crl.A.(MD).No.1112 of 2023 filed by the department to enhance the sentence of imprisonment passed by the learned Additional District and Sessions Judge/Presiding Officer, Special Court for EC and NDPS Act cases, Pudukkottai in C.C.No.75 of 2022, vide, judgment dated Page 23/27 https://www.mhc.tn.gov.in/judis CRL.A.(MD)No.1112 of 2023 & 129 of 202426.09.2023 is hereby dismissed.13.2.The Criminal Appeal in Crl.A.(MD).No.129 of 2024 filed by the appellant/accused is partly allowed in the following terms:(i)The conviction under Sections 8(c) r/w 29 r/w 8(c) r/w 22(b) of the NDPS Act, 1985 in C.C.No.75 of 2022, vide, impugned judgment, dated 26.09.2023, by the learned Additional District and Sessions Judge/Presiding Officer, Special Court for EC and NDPS Act cases, Pudukkottai is hereby confirmed.(ii)The sentence of 5 years Rigorous Imprisonment for the offence under Sections 8(c) r/w 29 r/w 8(c) r/w 22(b) of the NDPS Act, 1985, against the accused is hereby reduced to 4 ½ years without any modification on fine amount and the default sentence.Consequently, connected miscellaneous petition is closed.15.05.2025Page 24/27 https://www.mhc.tn.gov.in/judis CRL.A.(MD)No.1112 of 2023 & 129 of 2024Index :Yes / NoInternet:Yes / NoNCC:Yes / NosbnNote: Issue order copy on 19.05.2025Page 25/27 https://www.mhc.tn.gov.in/judis CRL.A.(MD)No.1112 of 2023 & 129 of 2024To1. The Additional District and Sessions Judge/Presiding Officer, Special Court for EC and NDPS Act Cases, Pudukkottai2.Union of India Jr. Intelligence Officer, Narcotics Control Bureau, Chennai Zonal Unit, Chennai. (In NCB F.No.48/1/06/2021-NCB/MDU) 3.The Superintendent of Prison, Central Prison, Trichirappalli.4. The Inspector of Police, NCB, Madurai, F.No. 48/1/06/2021-NCB, Madurai.5.The Special Public Prosecutor, Madurai Bench of Madras High Court, Madurai. 6.The Section Officer, Record Section (Criminal) Madurai Bench of Madras High Court, Madurai. Page 26/27 https://www.mhc.tn.gov.in/judis CRL.A.(MD)No.1112 of 2023 & 129 of 2024K.K.RAMAKRISHNAN, J. sbnCRL.A.(MD)Nos.1112 of 2023 & 129 of 202415.05.2025Page 27/27