Created by Fuzzy Cloud

Patna High Court

Razi AhmadversusThe State of Bihar

Decided
Disposal
ALLOWED

Holding

The court held that cough syrup with 0.2% codeine does not constitute contraband under the NDPS Act and therefore the petitioner is entitled to bail.

Summary

The petitioner was arrested in connection with a case under Sections 21, 22 and 23 of the NDPS Act and Section 111(1) of the BNS Act after police recovered 14 litres of codeine‑containing cough syrup from his house. The petitioner claimed innocence, argued that the seizure was procedurally flawed and that the syrup, containing only 0.2% codeine, fell within the exemption notified under S.O. 826(E) dated 14‑11‑1985. The State contended, relying on the Supreme Court decision in Hira Singh v. Union of India, that any mixture with a contraband is itself contraband and that the quantity was commercial. The court examined the notification, Section 2(d) of the NDPS Act and the lack of compliance with Section 105 of the BNS Act, concluding that the syrup did not constitute a narcotic drug within the ambit of the NDPS Act. Consequently, the court granted bail to the petitioner on a bond of Rs.10,000 with two sureties, noting that such cases should be dealt with under the Drugs and Cosmetic Act rather than the NDPS Act.

Issues considered

  • Whether cough syrup containing 0.2% codeine falls within the definition of a contraband under the NDPS Act.
  • Whether the procedural requirements under Section 105 of the BNS Act were complied with during seizure.
  • Whether the petitioner is entitled to bail despite the alleged offence under Sections 21, 22, 23 of the NDPS Act and Section 111(1) of the BNS Act.

Legislation cited

Subjects

  • bail
  • NDPS Act
  • codeine
  • contraband
  • notification exemption
  • section 105
  • procedural lapse
  • drugs and cosmetic act

Judgment

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                              CRIMINAL MISCELLANEOUS No.12368 of 2026
                         Arising Out of PS. Case No.-212 Year-2025 Thana- R S P.S. District- Araria
                 ======================================================
                 Razi Ahmad S/O Anwarul Haque R/O Village- Ghat Tol Belwa, Ward No. 08,
                 P.S- Araria, Dist.- Araria.

                                                                                       ... ... Petitioner/s
                                                          Versus
                 The State of Bihar

                                                        ... ... Opposite Party/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s     :         Mr. Gopal Kumar Jha, Advocate
                 For the Opposite Party/s :         Mrs. Nirmala Kumari, 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 R.S. P.S. Case No. 212 of 2025 registered for the offence

                   punishable under Sections 21, 22 and 23 of NDPS Act and

                   Section 111(1) of BNS.

                                3. The case of the prosecution is that from the house

                   of this petitioner, altogether 14 liters of cough syrup containing

                   codeine 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

                   concern in any way with the alleged contraband. There is no
Patna High Court CR. MISC. No.12368 of 2026(2) dt.18-02-2026
                                            2/4




          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 30.11.2025. Learned counsel has also submitted that

          similarly situated other co-accused person has already been

          granted bail by this court vide Cr. Misc. No. 4819 of 2026.

                       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.

                       6. In this case, cough syrup containing codeine
Patna High Court CR. MISC. No.12368 of 2026(2) dt.18-02-2026
                                            3/4




          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

          sureties of the like amount each to the satisfaction of the learned
             Patna High Court CR. MISC. No.12368 of 2026(2) dt.18-02-2026
                                                         4/4




                       Sessions Judge cum the Special Judge, NDPS Act, Araria in

                       connection with R.S. P.S. Case No. 212 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)
lata/-

U        T


Continue reading with your account

Sign in to read the full judgment. It’s free.

Sign in to read

Checking your session…

Lawyer court records for this case

Associated through the court’s case reference.

For a signed copy suitable for filing, refer to the court's website.