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THE first attempt in Scotland to prosecute high-street shops for selling magic mushrooms has failed, The Scotsman can reveal.
The Crown Office has decided not to proceed with cases against a tobacconist and a caf? owner, leading to claims that it gives a green light to sell the hallucinogenic plant, which contains a class-A drug.
Paul Stewart, who was fined ?500 after attempting to turn his premises in Leith into a Dutch-style cannabis caf?, said he now planned to open a shop selling magic mushrooms and other mind-altering, but legal, substances.
Anti-drugs campaigners expressed dismay at the decision and said a court should have been allowed to hear the case.
Magic mushrooms, which contain the class-A substance psilocybin, grow naturally in Britain and are legal only if they are not prepared in any way. The definition of "preparation" was crucial to the case - the campaign group Scotland Against Drugs had argued it could mean cutting them from the ground, putting them in a bag or keeping them in a fridge.
Mr Stewart, of the Purple Haze caf? in Leith, and Alan Myerthall, of the Pipe Shop in Leith Walk, were both charged by police after selling magic mushrooms to undercover officers.
However, a spokesman for the Crown Office said both cases had been marked "no proceedings" by procurators-fiscal.
Mr Stewart said he started selling magic mushrooms to highlight drug laws that banned him from selling cannabis but allowed the sale of the class-A fungi to children.
"I'd never do that, but that's the hypocrisy of the drug laws in this country," he said.
"This [the decision to drop the case] has given me the green light and I'm definitely going to open a shop in the town, selling everything legal - magic mushrooms, hallucinogenic cactus and liquid ecstasy, which is some kind of herbal concoction. It will be a smart drug shop.
"We have got to accept in this day and age people are going to take recreational drugs," he went on. "I'm not interested in hard drugs, but if people are going to take recreational drugs, why not try legal alternatives first?"
Mr Myerthall said he had known the prosecution would not go ahead from the start. "The police are not interested because we're not breaking the law. You cannot charge people with selling something that';s legal," he said.
Scotland Against Drugs insisted the decision to drop the case did not give a green light to others, because a legal precedent could be set only by a court ruling. Its director, Alistair Ramsay, said: "It's disappointing the legal definition of preparation of magic mushrooms as a class-A substance will not be determined by a court.
"It's likely that the confusion will continue, and this is to be regretted."
He said the police should still take action against anyone trying to open magic-mushroom shops and added: "Psilocybin is covered by the Misuse of Drugs Act in the same way as heroin and cocaine are class-A drugs.
"The law can still be executed with its full force at any time in the future. Somebody, somewhere, is going to bring down the full force of the law."
Lothian and Borders Police confirmed that both men had been charged but declined to comment on the decision to drop the case.