Patna High Court
Razi AhmadversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
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
- Bihar Narcotic Substances (BNS) Act — s. 105, 111(1)
- Drugs and Cosmetic Act
- Narcotic Drugs and Psychotropic Substances (NDPS) Act — s. 21, 22, 23, 2(d)
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
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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
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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
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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
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