High Court · 2025

Crl.A.(MD).No.1107 of 2023 and Crl.A.(MD) Nos.49 & 202 of 2024COMMON PRAYER : Criminal Appeals have been filed under Section 374(2) of the Criminal Procedure Code, to call for the records relating to the impugned judgment dated 20.11.2023 passed in Special C.C.No.542 of 2023 on the file of the Principal Special Court for EC & NDPS Act Cases, Madurai, and acquit the appellants from all the charges by setting aside the said impugned judgment. (In all Appeals)For Appellants : Mr.R.Venkatesan, Legal Aid Counsel For Respondent : Mr.R.Meenakshi Sundaram Additional Public Prosecutor COMMON JUDGMENTThe appellants/Accused No.1, 3 & 2 in C.C.No.542 of 2023 on the file of Principal Special Court for EC & NDPS Act Cases, Madurai, have filed these appeals, challenging the conviction and sentence imposed against them on 20.11.2023, wherein, they were convicted for the offence under Section 8(c) r/w 20(b)(ii)(B), 29(1)22 (c) of the NDPS Act for the alleged illegal possession of 1.100 kgs of Ganja and 100 grams of psilocybine (magic mushroom).Page 2 of 20 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.1107 of 2023 and Crl.A.(MD) Nos.49 & 202 of 20242. Since the appellants in the three appeals were arrayed as accused in the same crime number, these appeals are taken up together for hearing and disposed by way of this common judgment. 3.The brief facts of the case is as follows:-3.1. When P.W.2 was working as Sub-Inspector of Police, Kodaikkanal Police Station, Dindigul District, on 29.11.2022, at 10.00 am, he received a secret information through telephone from his informant about the illegal possession of ganja by the appellants near Kalaiyarangam Bus Stop. He recorded the said information in the General Diary and reduced it in writting under Ex.P.9 and informed the same to his Immediate Superior namely, P.W.3. Thereafter, P.W.2 and other police officers went to the spot with necessary equipment. The informant identified the accused and left the scene of occurrence. On seeing the police party, the accused tried to escape from the scene of occurrence. But, P.W.2 and his team nabbed them and introduced themselves as police officers and they were informed about their Page 3 of 20 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.1107 of 2023 and Crl.A.(MD) Nos.49 & 202 of 2024right to be searched before the Judicial Magistrate or the Gazetted officer as required under Section 50 of the NDPS Act. The appellants consented to conduct search by the officer himself and hence, P.W.2 conducted a search and found the possession of 1.100 kgs of Ganja and 100 grams of psilocybine (magic mushroom) and took the weightment of entire contraband and took the sample of S1 to S2 and properly sealed the same. He also properly sealed the remaining contraband. Thereafter, he arrested the appellants. The appellants also gave confessions and the same were recorded by P.W.2. P.W.2 brought the accused to the police station along with the entire contraband and sample and registered a case in Crime No.2236 of 2020 for the offence under Sections 8(c) r/w 20(b)(ii)(B) and 29(1) of the NDPS Act and prepared a detailed report under Section 57 of NDPS Act. Following the same, P.W.2 handed over the custody of the accused to P.W.3 along with the contraband, sample and report under Section 57 of the Act. P.W.3 produced the accused before the learned Judicial Magistrate along with the recovered contraband and Page 4 of 20 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.1107 of 2023 and Crl.A.(MD) Nos.49 & 202 of 2024samples taken from the said contraband and requested to remand him. After completing all the formalities, the learned Judicial Magistrate remanded the appellant in judicial custody. Thereafter, P.W.3 conducted the investigation and filed the final report before the Principal Special Court for EC & NDPS Act Cases, Madurai, and the same was taken on file in C.C.No.542 of 2023.3.2. The learned trial Judge issued summons to the accused and on their appearance, served the copies under Section 207 Cr.P.C. and framed the necessary charges and questioned the accused. The accused pleaded not guilty and stood for trial.3.3. The prosecution, to prove the case examined P.W.1 to P.W.3 and exhibited 18 documents as Ex.P.1 to Ex.P18 and produced 4 material objects as M.O.1 to M.O.4. The learned trial Judge questioned the accused under Section 313 of Cr.P.C., proceedings by putting the incriminating evidence available from the evidence of Page 5 of 20 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.1107 of 2023 and Crl.A.(MD) Nos.49 & 202 of 2024prosecution witnesses and documents. The accused denied the same as false and the case was posted for examination of the witnesses on the side of the accused. On the side of the defence, no one was examined as witness and no document was marked. 3.4. The learned trial Judge after considering the oral and documentary evidence, convicted the appellants for the offence under Sections 8(c) r/w 20(b)(ii)(B) and 29(1) 22(c) of the NDPS Act, and sentenced them to undergo 10 years Rigorous Imprisonment each and to pay a fine of Rs.1,00,000/- (Rupees One Lake only) each in default, to undergo, 6 months Rigorous Imprisonment each for the offence under Sections 8(c) r/w 20(b)(ii)(C) and 25 of the NDPS Act.4. Challenging the said conviction and sentence imposed by the learned trial Judge, present appeals have been filed. Page 6 of 20 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.1107 of 2023 and Crl.A.(MD) Nos.49 & 202 of 20245. Submission made by the learned Legal Aid Counsel :-5.1. The percentage of the 'Psilocybine' in the recovered magic mushroom has not been found out to convict the appellant under Section 8(C) r/w 20 (b)(ii)(B) of the NDPS Act. 5.2. The learned trial Judge has not discussed whether it is a narcotic drug or psychotropic substance. In view of that, the conviction is not legally maintainable. To substantiate the same, he read the constituents of offence under Section 8(C) r/w 20 (b)(ii)(B) of the NDPS Act. The magic mushroom can not be treated as scheduled drug. 6. Submission made by the learned Additional Public Prosecutor :-6.1. When the psychotropic substance is available in the natural material namely, magic mushroom, it automatically comes under the purview of Act and the learned trial Judge correctly convicted the accused for the offence under Section 8(C) r/w 20 (b)(ii)(C) of the NDPS Act. Page 7 of 20 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.1107 of 2023 and Crl.A.(MD) Nos.49 & 202 of 20247. This Court considered the rival submissions and perused the materials available on record and also the precedents relied upon by them. 8. The question arising for consideration in these appeals is whether the “magic mushroom” is a narcotic drug or psychotropic substance?9. The respondent police filed final report against the appellants under Section 8(c) r/w 20(b)(ii)(b), 29(1), 22(c) of the NDPS Act alleging that, they were found in possession of the 1.100 grms Ganja and 0.100 grms of “magic mushroom”. The learned counsel appearing for appellants' only contention before this court is that, the recovered contraband of magic mushroom does not come under the schedule and it is neither a narcotic drug or psychotropic substance. If so, no prosecution would lie and therefore the conviction and sentence under section 22(c) of the NDPS Act is not Page 8 of 20 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.1107 of 2023 and Crl.A.(MD) Nos.49 & 202 of 2024valid. To consider the said submission it is relevant to discuss about the evidence and peruse the recovery mahazar. On 29.11.2022, at 10.00 a.m. PW2 received a secret information about the possession of the Ganja and 'Nghij fhshd'; and he reduced into writing and informed to his immediate superior and thereafter he went to the occurrence place and nabbed the appellants and recovered the contraband and registered the case in Cr.No. 311 of 2022 and submitted a report under section 57 to his immediate superior. His specific evidence is that “ehq;fs; nfhz;L nrd;wpUe;j Ks; juhrpy; fQ;rhit vil Nghl;L ghh;f;f 1.100 fp.fp fQ;rh ,Ue;jJ. Nghijf;fhshid vil Nghl;L ghh;f;f mjpy; 100 fpuhk; ,Ue;jJ.” From the above evidence, it is clear that the recovered contraband is “Nghijf;fhshd;;” and the same contains psychotropic substance namely, “psilocybine” which is mentioned in the schedule in serial number 145. Section 2(xxiii) defines “psychotropic substance” thus: "psychotropic substance" means any substance, natural or synthetic, or any natural material or any salt Page 9 of 20 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.1107 of 2023 and Crl.A.(MD) Nos.49 & 202 of 2024or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule”10. From the reading of the definition it is clear that “any natural substance” or “any natural material” would come under 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. 10.1. 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, Page 10 of 20 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.1107 of 2023 and Crl.A.(MD) Nos.49 & 202 of 2024import into India, export from India or tranship any narcotic drug or psychotropic substance, 10.2. 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 inter-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:Page 11 of 20 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.1107 of 2023 and Crl.A.(MD) Nos.49 & 202 of 2024Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.10.3. 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 proportionate 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 Page 12 of 20 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.1107 of 2023 and Crl.A.(MD) Nos.49 & 202 of 2024convention 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 psychotropic substances to which India has become a party.10.4. 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 Page 13 of 20 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.1107 of 2023 and Crl.A.(MD) Nos.49 & 202 of 2024meaning of the psychotropic substance and without any doubt holds that the recovered fungai which contains psilocybine is psychotropic substance 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 poses serious problem to the Government. Therefore the Government brought the Act with comprehensive definition of psychotropic substances. The legislature clearly drafted the definition 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 Page 14 of 20 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.1107 of 2023 and Crl.A.(MD) Nos.49 & 202 of 2024the 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 offence 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 Page 15 of 20 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.1107 of 2023 and Crl.A.(MD) Nos.49 & 202 of 2024Schedule 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.” 10.5. Therefore the definition of psychotropic substances in section 2(xxiii) of NDPS Act was never intended to exclude the natural material which contains psychotropic substances. 10.6. 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 Page 16 of 20 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.1107 of 2023 and Crl.A.(MD) Nos.49 & 202 of 2024psychotropic 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. 10.7. The learned counsel relied the judgment of this Court in Crl.O.P.(MD) No.19589 of 2024. The 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 taking 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 Page 17 of 20 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.1107 of 2023 and Crl.A.(MD) Nos.49 & 202 of 2024in 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.” 10.8. In the said bail order, there is no discussion about the section 2 (xxiii) of NDPS Act and also this court left open the question. 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 appellants had possession of the said “Mushroom” containing the psilocybine, a psychotropic substance with sufficient intention along with the Ganja. It is not the case of the Appellants that they were in possession of the ordinary mushroom not containing psilocybine. Therefore the prosecution clearly proved the possession of psilocybine contained mushroom along with the Ganja with necessary intention and knowledge and Page 18 of 20 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.1107 of 2023 and Crl.A.(MD) Nos.49 & 202 of 2024therefore the prosecution is legal and conviction and sentence of imprisonment under section 22(c) of NDPS Act is in accordance with law. 11. Accordingly, the appeals are dismissed by confirming the conviction and sentence imposed in the impugned judgment dated 20.11.2023 passed in Special C.C.No.542 of 2023 on the file of the Principal Special Court for EC & NDPS Act Cases, Madurai. 15.05.2025.NCC:Yes/NoIndex:Yes/NoInternet:Yes/NodssPage 19 of 20 https://www.mhc.tn.gov.in/judis Crl.A.(MD).No.1107 of 2023 and Crl.A.(MD) Nos.49 & 202 of 2024K.K.RAMAKRISHNAN, J.dssTo:1. The Principal Special Court for EC & NDPS Act Cases, Madurai. 2.The Inspector of Police, Kodaikkan Police Station, Dindigul District.3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. 4.The Section Officer, Criminal Section(Records), Madurai Bench of Madras High Court, Madurai.Crl.A.(MD).No.1107 of 2023 and Crl.A.(MD) Nos.49 & 202 of 202415.05.2025Page 20 of 20