Patna High Court
Giban Potal @ Giban Dotal @ Giban PatelversusThe State of Bihar
- Decided
- Disposal
- BAIL REJECTED
- Bench
- R P MISHRA
Holding
The court held that the seizure exceeding commercial quantity triggers the bar under Section 37 of the NDPS Act, and therefore bail cannot be granted.
Summary
The petitioner, Giban Potal, was arrested as the driver of a vehicle from which police recovered 40 bottles (4 litres) of codeine‑phosphate and triprolidine hydrochloride cough syrup. He was charged under Sections 20 and 22 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act and sought bail, claiming innocence and lack of any contraband in his personal possession. The State opposed bail, arguing that the seized quantity exceeds the commercial threshold and thus invokes the statutory bar under Section 37 of the NDPS Act. The State relied on the Supreme Court decision in Hira Singh (2020) 20 SCC 272, which holds that neutral substances must be counted when determining commercial quantity. The Court examined the facts, noted the absence of compliance with Sections 42 and 50, and concluded that the bar under Section 37 applies, making bail untenable. Consequently, the petition for bail was rejected.
Issues considered
- Whether bail can be granted to an accused under Sections 20 and 22 of the NDPS Act when the seized narcotic quantity exceeds the commercial threshold.
- Whether the inclusion of neutral substances in the seized material affects the determination of commercial quantity under Section 37 of the NDPS Act.
- Whether the statutory bar under Section 37 precludes the grant of bail in such circumstances.
Legislation cited
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 20, 22, 37, 42, 50
Subjects
- bail
- NDPS Act
- commercial quantity
- Section 37
- codeine
- cough syrup
- drug seizure
- neutral substance
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.12229 of 2026
Arising Out of PS. Case No.-64 Year-2025 Thana- HARLAKHI District- Madhubani
======================================================
Giban Potal @ Giban Dotal @ Giban Patel Son of Ved Prakash Dotal @ Ved
Prakash Potal Resident of village - Tinpatan - 10, Sindhuli, Janakpur (Nepal).
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Rajkumar Mishra, Advocate
For the Opposite Party/s : Mr. Anil Kumar, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE RUDRA PRAKASH
MISHRA
ORAL ORDER
2 23-02-2026 Heard learned counsel for the petitioner and learned
APP for the State.
2. The petitioner seeks bail in connection with
Harlakhi P.S. Case No. 64 of 2025, instituted for the offences
punishable under Sections 20 and 22 of the NDPS Act.
3. Prosecution allegation, in short, is that there is
recovery of 40 bottles of Codeine Phosphate & Triprolidine
Hydrochloride cough syrup, Onerex (each of 100 ml) in this
case.
4. Learned counsel for the petitioner submits that the
petitioner is innocent and has falsely been implicated in the
present case. No incriminating material has been recovered from
the conscious possession of the petitioner. Learned counsel for
Patna High Court CR. MISC. No.12229 of 2026(2) dt.23-02-2026
2/3
the petitioner also submits that no recovery of cough syrup has
been made from the possession of the petitioner rather the
alleged recovery has been made from the vehicle and the
petitioner was driver of that vehicle in question. The petitioner
is in custody since 20.03.2025 and has got no criminal
antecedent. There is no compliance of Sections 42 and 50 of the
N.D.P.S. Act.
5. Learned A.P.P. for the State has vehemently
opposed the prayer for grant of bail to the petitioner. Learned
A.P.P. submits that the total recovery of contraband is 04 liters
and the same is above the commercial quantity, hence, there is
bar under Section 37 of the N.D.P.S. Act. Learned A.P.P. has
further relied upon a case of Hon’ble Supreme Court since
reported in (2020) 20 SCC 272 (Hira Singh and Another
versus Union of India and Another) in which the Hon’ble
Apex Court held that in case of seizure of mixture of narcotic
drugs or psychotropic substance with one or more neutral
substance(s), the quantity of neutral substance(s) is not to be
excluded and to be taken into consideration along with actual
content by way of offending drug while determining the “small
or commercial quantity” of narcotic drugs or psychotropic
substance.
Patna High Court CR. MISC. No.12229 of 2026(2) dt.23-02-2026
3/3
6. Considering the aforesaid facts and circumstances
of the case and recovery of contraband beyond commercial
quantity coupled with embargo under Section 37 of the N.D.P.S.
Act, this Court is not inclined to grant bail to the petitioner.
7. The prayer is rejected.
(Rudra Prakash Mishra, J)
Rajorshi/-
U T
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