Patna High Court
Ali Murtaza @ Md. Ali MurtazaversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The Court granted bail to the petitioner, finding that the statutory exemption and procedural deficiencies outweighed the prosecution’s claim of commercial quantity.
Summary
Ali Murtaza was arrested in connection with a case alleging possession of 59 litres of codeine‑containing cough syrup, charged under Sections 21, 22 and 23 of the NDPS Act and Section 111(1) of the Bihar Narcotic Substances Act. The prosecution relied on a co‑accused’s confessional statement, while the defence argued that the petitioner had no involvement, the seizure was procedurally defective (no compliance with Section 105 of the BNSS and no brand or concentration details), and the syrup fell within the exemption notified under S.O. 826(E) dated 14‑11‑1985. The State contended that, per the Supreme Court’s decision in Hira Singh v. Union of India, the entire mixture constituted contraband and amounted to a commercial quantity. The Court examined the statutory exemption, the procedural lapses, and the precedent, and ultimately decided to grant bail on a bond of Rs 10,000 with two sureties.
Issues considered
- Whether the petitioner is entitled to bail under the NDPS Act for alleged possession of codeine‑containing cough syrup.
- Whether the seized cough syrup is exempted under Notification S.O. 826(E) 1985.
- Whether the quantity seized constitutes a ‘commercial quantity’ as per NDPS jurisprudence.
- Whether the police complied with procedural requirements, notably Section 105 of the Bihar Narcotic Substances Act, during the seizure.
Legislation cited
- Bihar Narcotic Substances Act — s. 105, 111(1)
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 21, 22, 23, 2(d)
Subjects
- bail
- NDPS Act
- codeine
- cough syrup
- commercial quantity
- exemption notification
- procedural lapse
- seizure
- narcotic drugs
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.15514 of 2026
Arising Out of PS. Case No.-212 Year-2025 Thana- R S P.S. District- Araria
======================================================
Ali Murtaza @ Md. Ali Murtaza Son of Azim @ Md. Azim Uddin Resident of
Ward No 10, Mohani PS -Baunsi District -Araria
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Ranjeet Choubey, Advocate
For the Opposite Party/s : Mr. Ram Sevak Choudhary, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
2 26-02-2026 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, in short, is that on the
confessional statement of the co-accused altogether 59 liters of
cough syrup containing codeine was recovered from the
possession of this petitioner.
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
Patna High Court CR. MISC. No.15514 of 2026(2) dt.26-02-2026
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concern in any way with the alleged contraband. There is no
independent witness of the seizure list. Police has not complied
section 105 of BNSS while preparing seizure. It has further been
submitted that though police have stated that cough syrup
containing codeine was recovered but has not mentioned brand
name. Without brand name it cannot be asserted as to what was
the concentration of codeine in the said cough syrup. Learned
counsel for the petitioner has submitted that the petitioner 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
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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 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.
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. 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
Patna High Court CR. MISC. No.15514 of 2026(2) dt.26-02-2026
4/4
Judge, NDPS Act, Araria in connection with R.S. P.S. Case No.
212 of 2025.
(Ashok Kumar Pandey, J)
abhishek/-
U T
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