Patna High Court
Suraj KumarversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The Court held that the cough syrup is exempt under the NDPS Act and granted bail to the petitioner.
Summary
Suraj Kumar, a driver, was arrested after 420 litres of ESCOF cough syrup containing 0.2% codeine was seized from his pick‑up van and he was charged under Sections 21(c), 22(c), 25 and 29 of the NDPS Act. The petitioner contended that he had no possession of the drug, that the seizure was conducted by police officers who were not independent witnesses and that the seizure violated Section 105 of the B.N.S.S. He relied on Notification S.O. 826(E) dated 14‑11‑1985 which exempts preparations with codeine up to 2.5% and 100 mg per dose, arguing that the syrup is a “manufactured drug” and not a contraband under the NDPS Act. The State argued, citing Hira Singh v. Union of India, that any non‑toxic material mixed with a contraband makes the whole quantity contraband and that the seized amount constituted a commercial quantity. The Court examined the statutory exemption, noted that under Section 2(d) the drug does not fall within the definition of a narcotic drug, and held that there was no jurisdiction to treat it as NDPS contraband. Consequently, the Court granted bail on a bond of Rs 10,000 with two sureties.
Issues considered
- Whether the cough syrup containing 0.2% codeine falls within the definition of a narcotic drug under the NDPS Act.
- Whether the seizure and charge under Sections 21(c), 22(c), 25 and 29 of the NDPS Act are valid.
- Whether the petitioner is entitled to bail pending trial.
Legislation cited
- B.N.S.S. — s. 105
- Narcotic Drugs and Psychotropic Substances Act — s. 21(c), 22(c), 25, 29, 2(d)
Subjects
- bail
- NDPS Act
- codeine
- contraband
- exemption
- seizure
- driver
- Drugs and Cosmetic Act
- commercial quantity
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.14392 of 2026
Arising Out of PS. Case No.-216 Year-2025 Thana- BHAPTIAHI District- Supaul
======================================================
Suraj Kumar, Son of Late Kailash Thakur, Resident of Village- Bakhari
Bazar, Ward No. 20, P.S.- Bakhari Bazar, District- Begusarai
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Sunil Kumar Singh, Advocate
For the Opposite Party/s : Mr. Ram Bilash Roy Raman, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
3 16-04-2026 Heard learned counsel for the petitioner and learned
APP for the State.
2. The petitioner has prayed for bail in connection
with Bhaptiyahi P.S. Case No. 216 of 2025 registered for the
offence punishable under Sections 21(c), 22(c), 25 and 29 of the
N.D.P.S. Act.
3. The case of the prosecution in short is that from a
Pick-up Van, altogether 420 liters of ESCOF 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. He is merely the driver of the vehicle. Nothing has been
recovered from his possession. Learned counsel for the
Patna High Court CR. MISC. No.14392 of 2026(3) dt.16-04-2026
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petitioner has submitted that from perusal of the seizure list, it
will transpire that the seizure witnesses are not independent
witness rather they are police personnel. Police has also not
followed the provision of Section 105 of B.N.S.S. while making
seizure. Petitioner is having no criminal antecedent and he is
languishing in judicial custody since 17.10.2025.
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, ESCOF Cough Syrup has been
recovered from a Pick-up Van and the concentration of the
codeine in this drug is approximately 0.2% which is less than
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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
form the possession of this 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
Sessions Judge, Supaul in connection with Bhaptiyahi P.S. Case
No. 216 of 2025.
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4/4
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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