Patna High Court
Bhola Rai @ Bhola RayversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The Court held that the seized cough‑syrup, containing codeine below the statutory threshold, does not fall within the definition of a narcotic drug under the NDPS Act and therefore the petitioner is entitled to bail.
Summary
The petitioner, Bhola Rai, was arrested as the driver of a van from which 760 litres of codeine‑containing Eskuf cough syrup was seized, and he was charged under Section 21(c) of the NDPS Act. He contended that he had no involvement in the alleged contraband, had no prior criminal record, and that the syrup’s codeine concentration (0.2%) fell below the 2.5% threshold prescribed in Central Government Notification S.O. 826(E) of 1985, rendering it a ‘manufactured drug’ rather than a narcotic. The State relied on the Supreme Court’s decision in Hira Singh v. Union of India, arguing that the entire mixture, even if non‑toxic, constitutes contraband and that the quantity seized was commercial. The Court examined Section 2(d) of the NDPS Act, noting that the substance was not a narcotic drug and that the Central Government’s notification governs its classification. Consequently, the Court granted regular bail to the petitioner on a bond of Rs 10,000 with two sureties, directing his release pending further proceedings.
Issues considered
- What is the applicability of Section 21(c) of the NDPS Act to a cough‑syrup containing codeine at a concentration of 0.2%?
- Does the Central Government Notification S.O. 826(E) (1985) exempt such a preparation from being treated as contraband under the NDPS Act?
- Is the quantity seized to be considered ‘commercial quantity’ despite the low concentration of codeine?
- Can bail be granted when the seized material may be classified as a manufactured drug rather than a narcotic?
Legislation cited
Subjects
- NDPS Act
- bail
- codeine
- manufactured drug
- contraband
- Section 21(c)
- Section 2(d)
- central government notification
- cough syrup
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.11557 of 2026
Arising Out of PS. Case No.-250 Year-2025 Thana- GAIGHAT District- Muzaffarpur
======================================================
Bhola Rai @ Bhola Ray Son of Bhikhu Rai Resident of Village- Kataru Chak
Mahamad, P.O.- Garaul, P.S.- Belsar, District- Vaishali
... ... Petitioner/s
Versus
The State of Bihar Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr.Gajendra Kumar Singh, Advocate
For the Opposite Party/s : Mr.Umesh Lal Verma, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
2 10-03-2026 Heard learned counsel for the petitioner and learned
APP for the State.
2. The petitioner has prayed for regular bail in a case
registered for the offence punishable under sections 21 (c ) of
the NDPS Act.
3. The case of the prosecution is that altogether 760
liter of codeine Eskuf Cough Syrup was recovered from the van
and the petitioner is said to be the driver of that Van.
4. Learned counsel appearing on behalf of the
petitioners has submitted that petitioners are innocent and have
committed no offence. He has been falsely implicated in this
case. He has no concern in any way with the alleged contraband.
Moreover, he is languishing in judicial custody since 10.10.2025
having no criminal antecedent.
Patna High Court CR. MISC. No.11557 of 2026(2) dt.10-03-2026
2/4
5. Learned counsel for the petitioner has 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.
6. In this case, Eskuf cough Syrup has been recovered
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
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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.
11. Considering the aforesaid facts and circumstances
of the case, this court is inclined to enlarge the petitioner on
bail. The above named petitioner is directed to be released on
bail in connection with NDPS Case No. 174 of 2025 arising out
of Gaighat P.S. Case No. 250 of 2025 on furnishing bail bond of
Rs.10,000/- (ten thousand) with two sureties of the like amount
each to the satisfaction of learned Exclusive Special Judge -II
(NDPS), Muzaffarpur.
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
Patna High Court CR. MISC. No.11557 of 2026(2) dt.10-03-2026
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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)
Jagdish/-
U
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