Patna High Court
Ghuran Sah @ Raja Ram SahversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The court held that the substances recovered do not constitute contraband under the NDPS Act and therefore granted bail to the petitioner.
Summary
The petitioner, Ghuran Sah, was arrested in connection with a case registered under Sections 20 and 22 of the NDPS Act after police recovered codeine‑containing cough syrup, nitrazepam tablets, Spasmo Proxyvon Plus and a bike from his possession. The petitioner contended that the cough syrup contained only 0.2% codeine, which is below the 2.5% threshold prescribed in Notification S.O. 826(E) 1985, and that the quantities of the other drugs were below the "small quantity" limit, thus exempting them as manufactured drugs. The State relied on the Supreme Court decision in Hira Singh v. Union of India, arguing that any non‑toxic material mixed with contraband makes the whole quantity a commercial contraband. The court examined Section 2(d) of the NDPS Act and the central government notification, concluding that the seized items did not fall within the definition of contraband and that the NDPS Act was inapplicable. Consequently, the court granted bail to the petitioner on a bond of Rs.10,000 with two sureties.
Issues considered
- Whether the seized codeine‑containing cough syrup and other drugs constitute contraband under Sections 20 and 22 of the NDPS Act given the low concentration and small quantity.
- Whether the NDPS Act is applicable to the petitioner in view of Notification S.O. 826(E) 1985 and Section 2(d) of the Act.
- Whether bail should be granted to the petitioner pending trial.
Legislation cited
- Narcotic Drugs and Psychotropic Substances (NDPS) Act — s. 20, 22, 2(d)
Subjects
- NDPS Act
- bail
- codeine
- manufactured drug exemption
- contraband
- small quantity
- Section 2(d)
- Notification S.O. 826(E) 1985
- drug law
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.13674 of 2026
Arising Out of PS. Case No.-160 Year-2025 Thana- HARLAKHI District- Madhubani
======================================================
Ghuran Sah @ Raja Ram Sah, S/O Thakur Lal Sah, R/O Village- Harine
(Harne), Ward no. 5, P.S- Harlakhi, Distt.- Madhubani.
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Ravi Prakash, Advocate
For the Opposite Party/s : Mr. Ganesh Prasad Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
2 12-03-2026 Heard learned counsel for the petitioner and learned
APP for the State.
2. The petitioner has prayed for bail in connection
with Harlakhi P.S. Case No. 160 of 2025 registered for the
offence punishable under Sections 20 and 22 of the N.D.P.S.
Act.
3. The case of the prosecution, in short, is that from
the possession of this petitioner, Wincerex Cough Syrup
containing codeine-49 Nos. each of 100 ml, Nitrazepam Tablets
Nitrosum10-100 Nos., Spasmo Proxyvon Plus-424 Nos. and a
bike were 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
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case. Nothing incriminating has been recovered from his
conscious possession. He has no concern with the alleged
recovery. He is having no criminal antecedent and he is
languishing in judicial custody since 15.06.2025.
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, Wincerex Cough Syrup has been
recovered from the possession of the 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. As far as tablets Nitrazepam Nitrosum and Spasmo
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Proxyvon Plus is concerned, the alleged recovery is below the
small quantity.
8. 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
form the possession of this petitioner is commercial quantity.
9. 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.
10. 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 District
and Additional Sessions Judge-V, Madhubani in connection with
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Harlakhi P.S. Case No. 160 of 2025.
11. 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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