Patna High Court
MD. SHAHEB @ MD. SAHEB ALAMversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The court held that the seized cough syrup, being a schedule‑H preparation with codeine concentration below 2.5%, does not fall within the ambit of contraband under the NDPS Act, and therefore the petitioner is entitled to bail.
Summary
The petitioner, Md. Shaheb Alam, sought regular bail in a case where 103 litres of codeine‑containing cough syrup were seized from him and two co‑accused. The prosecution alleged possession of the syrup, invoking Sections 21, 22 and 23 of the NDPS Act and Section 111(1) of the Bihar Narcotic Substances Act. The petitioner contended that the seizure was procedurally flawed, the police did not specify the brand or concentration, and that the syrup fell within the exemption under Notification S.O. 826(E) (codeine concentration below 2.5%). The State argued, relying on the Supreme Court’s decision in Hira Singh v. Union of India, that the entire mixture constituted contraband and amounted to a commercial quantity. The court noted that under Section 2(d) of the NDPS Act the drug itself is not a narcotic, and that the Central Government’s notification governs the classification, rendering the case non‑jurisdictional under the NDPS Act. Consequently, the court granted bail on a bond of Rs.10,000 with two sureties, directing the petitioner’s release.
Issues considered
- The validity of the seizure and whether procedural requirements under Section 105 of the Bihar Narcotic Substances Act were complied with
- Whether the codeine‑containing cough syrup falls within the exemption under Notification S.O. 826(E) and thus is not contraband under the NDPS Act
- Whether the quantity seized constitutes a 'commercial quantity' as per Supreme Court precedent in Hira Singh v. Union of India
- The jurisdiction of the NDPS Act over the seized material given the provisions of Section 2(d) and the Central Government notification
Legislation cited
- Bihar Narcotic Substances Act — s. 105, 111(1)
- Narcotic Drugs and Psychotropic Substances Act — s. 21, 22, 23, 2(d)
Subjects
- bail
- NDPS Act
- codeine
- cough syrup
- contraband
- quantity
- notification
- schedule H
- Drugs and Cosmetic Act
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.14466 of 2026
Arising Out of PS. Case No.-212 Year-2025 Thana- R S P.S. District- Araria
======================================================
Md. Shaheb @ Md. Saheb Alam, S/o Md. Mustak Alam, R/o vill - Azad
Nagar, ward no. 19, P.S.- Araria, Distt.- Araria
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr.Md Naushaduzzoha, Advocate
For the Opposite Party/s : Mr.Aditya Narayan Singh.1, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
2 25-02-2026 Heard learned counsel for the petitioner and learned
APP for the State.
2. The petitioner has prayed for regular bail in a case
registered for the offence punishable under Sections 21, 22 and
23 of the NDPS Act and under Section 111(1) of the BNS.
3. The case of the prosecution, in short, is that from
the possession of the petitioner along with two co-accused
Shafif Ahmadd and Md. Ashiq, altogether 103 liters cough
syrup containing codeine was recovered.
4. Learned counsel for the petitioner has submitted
that nothing has been recovered from the possession of this
petitioner. From perusal of the seizure list it will transpire that
the witnesses of the seizure list are police personnel and they
have not complied Section 105 of the BNSS while making
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seizure. It has further been submitted that though police has
stated that cough syrup containing codeine was recovered but
has not mentioned brand name. Without brand name it cannot be
ascertained as to what was the concentration of codeine in the
said cough syrup. Learned counsel for the petitioner has
submitted that the petitioner is having one criminal antecedent
in which he is on bail. It has also been submitted that similar
situated co-accused Md. Shafi Ahmad has been granted bail by
this Court vide Cr. Misc. No. 4819 of 2026. The case of this
petitioner stands on similar footing. Moreover, he is in judicial
custody since 30.11.2025.
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
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concentration of not more than 2.5 % in undivided preparations
and which have been established in therapeutic practice.
6. 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.
7. 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.
8. Considering the aforesaid facts and circumstances
of the case, this court is inclined to enlarge the petitioner on
bail. The above named petitioner is directed to be released on
bail in connection with Araria R.S. P.S. Case No. 212 of 2025
on furnishing bail bond of Rs.10,000/- (ten thousand) with two
sureties of the like amount each to the satisfaction of learned
Sessions Judge-cum- the Special Judge, NDPS Act, Araria.
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9. 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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