Patna High Court
Sachin kumarversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The petitioner is entitled to bail as the cough syrup does not constitute contraband under the NDPS Act due to the low codeine concentration and lack of jurisdiction.
Summary
Sachin Kumar was arrested with 912 litres of Onerex Wings cough syrup containing 0.2% codeine phosphate and charged under Sections 21(c) and 29 of the NDPS Act. The petitioner pleaded innocence, argued that the seizure violated procedural requirements and that the low concentration of codeine falls within the exemption notified under S.O. 826(E) dated 14‑11‑1985, rendering the syrup a manufactured drug, not contraband. The State relied on the Supreme Court decision in Hira Singh v. Union of India, contending that any non‑toxic material mixed with a contraband makes the whole quantity contraband and therefore commercial. The Court examined Section 2(d) of the NDPS Act and the central government notification, concluding that the syrup does not meet the definition of a narcotic drug for which the NDPS Act has jurisdiction. Consequently, the Court granted bail to the petitioner on a bond of Rs.10,000 with two sureties.
Issues considered
- Whether cough syrup containing 0.2% codeine qualifies as contraband under the NDPS Act.
- Whether procedural lapses in the seizure (absence of independent witness, non‑compliance with Section 105 BNSS) affect the bail application.
- Whether the quantity recovered constitutes a commercial quantity warranting denial of bail.
- Whether the case should be prosecuted under the NDPS Act or the Drugs and Cosmetics Act.
Legislation cited
- Bihar Narcotic Substances (BNSS) Act — s. 105
- Drugs and Cosmetics Act
- Narcotic Drugs and Psychotropic Substances (NDPS) Act — s. 21(c), 29, 2(d)
Subjects
- bail
- NDPS Act
- codeine
- contraband
- seizure procedure
- commercial quantity
- notification S.O. 826(E)
- Drugs and Cosmetics Act
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.11065 of 2026
Arising Out of PS. Case No.-134 Year-2025 Thana- GANGABRIDGE District- Vaishali
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Sachin kumar Son of Lalbabu Rai @ Lal Babu Ray Resident of Village
-Bathnaha, Bathnaha Tole, P.S. - Bathnaha, Dist. - Sitamarhi, State - Bihar.
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Hemant Ray, Advocate
For the Opposite Party/s : Mr. Md. Fahimuddin, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
2 18-02-2026 Heard learned counsel for the petitioner and learned
APP for the State.
2. The petitioner has prayed for bail in connection
with Gangabridge P.S. Case No. 134 of 2025 registered for the
offence punishable under Sections 21(c) and 29 of the N.D.P.S.
Act.
3. The case of the prosecution is that the petitioner
along with one co-accused was arrested from a bolero pickup
and from there, altogether 912 liters of Onerex Wings cough
syrup containing codeine phosphate was recovered.
4. Learned counsel appearing on behalf of the
petitioner has submitted that petitioner is innocent and has
committed no offence. He has been falsely implicated in this
case. Learned counsel has further submitted that he has no
Patna High Court CR. MISC. No.11065 of 2026(2) dt.18-02-2026
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concern in any way with the alleged contraband. There is no
independent witness of the seizure list. Police has not complied
section 105 of BNSS while preparing seizure. A statement has
been made in para-3 of this petition that the petitioner has got no
criminal antecedent and he is languishing in judicial custody
since 19.08.2025. Learned counsel has also submitted that
similarly situated other co-accused person has already been
granted bail by this court vide Cr. Misc. No. 84065 of 2025.
5. Learned counsel for the petitioner has further
submitted that under Notification No. S.O. 826(E) dated
14.11.1985 under the Narcotic Drugs and Psychotropic
Substances Act and Rules, 1985 that preparations are exempted
as manufactured drugs provided the preparations contained the
narcotic drugs to the extent permitted in respect of codeine
under Entry No. 35. It is stated that codeine and ethyle
morphine and their salts including dionine all dilutions and
preparations are considered to be manufactured drugs except
those which are compounded with one or more other ingredients
and containing not more than 100 miligrams of the drugs per
doses unit and with a concentration of not more than 2.5 % in
undivided preparations and which have been established in
therapeutic practice.
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6. In this case, Onerex Wings Cough syrup containing
codeine phosphate has been recovered from the possession of
this petitioner and the concentration of the codeine in this drug
is approximately 0.2% which is less than 2.5% as provided in
the above notification.
7. Learned APP appearing for the State has vehemently
the application for bail and has submitted that in the case of Hira
Singh and Anr. V. Union of India and Anr., the Hon’ble
Supreme Court has held that entire non-toxic material which is
mixed with the contraband will be considered as the contraband
and as such, the quantity which has been recovered from the
possession of the petitioners is commercial quantity.
8. In this regard, it is worth mentioning that in view of
Section 2(d) of the N.D.P.S. Act, the drug itself is not narcotic
drug then there is no jurisdictional basis for the case and the
Court would not have a reason to go into the question of
quantities. The Central Government has power to issue
notification time to time.
9. Having heard learned counsel for the parties and
considering the facts and circumstances of the case, this Court is
inclined to enlarge the petitioner on bail. The above named
petitioners are directed to be enlarged on bail on furnishing bail
bond of Rs. 10,000/- (Rs. ten thousand only) each with two
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sureties of the like amount each to the satisfaction of the learned
Principal Sessions Judge, Vaishali in connection with
Gangabridge P.S. Case No. 134 of 2025.
10. Before parting, it is very strange that the cases
where cough syrups containing codeine are recovered, the
police is invariably filing cases under N.D.P.S. Act whereas in
view of the notification of Central Government (supra)
concentration of codeine being less than 2.5 %, the quantity
does not come under the ambit of contraband. Cough syrup
containing codeine is only a Schedule-H drug for which, the
shopkeeper has to maintain register and he must be a licensed
one. Such type of cases should be filed under Drugs and
Cosmetic Act. It is only the violation of Drugs and Cosmetic Act
whereas, police is invariably misusing the procedure.
(Ashok Kumar Pandey, J)
Shubham/-
U T
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