Patna High Court
Mushfique Alam @ Musfiq Alam @ Mustafique AlamversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The Court held that the seized cough syrups do not fall within the definition of contraband under the NDPS Act and therefore the petitioner is entitled to bail.
Summary
Mushfique Alam was arrested for possession of cough syrups containing codeine and charged under Section 21(c) of the NDPS Act. The prosecution seized 17 litres of syrup, alleging contraband, while the defence argued that the codeine concentration (0.2%) fell below the 2.5% threshold exempted by Notification S.O. 826(E) of 1985, and that the seizure violated Section 105 of the BNSS. 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 renders the whole quantity contraband. The Court examined the statutory exemption and the definition of contraband under Section 2(d) of the NDPS Act, concluding that the seized syrups did not constitute prohibited narcotic drugs. Consequently, the Court granted bail to the petitioner on a bond of Rs.10,000 with two sureties.
Issues considered
- Whether cough syrups containing codeine at 0.2% concentration constitute contraband under the NDPS Act.
- Whether Section 21(c) of the NDPS Act is applicable given the exemption under Notification S.O. 826(E) dated 14‑11‑1985.
- Whether bail should be granted to the petitioner pending trial.
Legislation cited
- Narcotic Drugs and Psychotropic Substances Act — s. 21(c), 2(d)
Subjects
- bail
- NDPS Act
- codeine
- contraband exemption
- seizure procedure
- Section 105 BNSS
- Schedule H
- Drugs and Cosmetic Act
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.12815 of 2026
Arising Out of PS. Case No.-21 Year-2026 Thana- Excise P.S. District- Purnia
======================================================
Mushfique Alam @ Musfiq Alam @ Mustafique Alam S/O Ataur Rahman
Resident of vill.- Mahesh Batna, P.S- Baisi, Dist- Purnea.
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr.Kumar Rajdeep
For the Opposite Party/s : Mr.Sunil Kumar Pandey
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
3 17-03-2026 Heard learned counsel for the petitioner and learned
APP for the State.
2. The petitioner has prayed for bail in connection
with Excise Sadar P.S. Case No. 21 of 2026 registered for the
offence punishable under Sections 21(c) of the N.D.P.S. Act.
3. The case of the prosecution is that BERRYSAFE
(43 pieces) each of 100 ml, BLUCOD-T ( 90 pieces) each of
100 ml and CODBIX ( 37 pieces) each of 100 ml containing
codeine were recovered from cartoon. The total quantity of
cough syrup containing codeine is 17 liters.
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. He has no concern in any way with the alleged contraband.
Patna High Court CR. MISC. No.12815 of 2026(3) dt.17-03-2026
2/4
The seizure list witnesses are police personnel and police has
not followed Section 105 of BNSS while preparing seizure.
Moreover, he is languishing in judicial custody since 08.01.2026
having no criminal antecedent.
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. Learned counsel has further submitted that in this
case, cough Syrups containing codeine have been recovered and
the concentration of the codeine in these drug is approximately
0.2% which is less than 2.5% as provided in the above
notification.
Patna High Court CR. MISC. No.12815 of 2026(3) dt.17-03-2026
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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 petitioner 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
petitioner is directed to be enlarged on bail on furnishing bail
bond of Rs. 10,000/- (Rs. ten thousand only) with two sureties
of the like amount each to the satisfaction of the learned Special
Judge (NDPS Act), Purnea in connection with Excise Sadar P.S.
Case No. 21 of 2026.
10. Before parting, it is very strange that the cases
Patna High Court CR. MISC. No.12815 of 2026(3) dt.17-03-2026
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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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