Patna High Court
Raushan Kumar JhaversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The Court granted bail to the petitioner, holding that the seized cough syrup does not constitute contraband under the NDPS Act and that the petitioner is not in possession of a commercial quantity.
Summary
The petitioner, Raushan Kumar Jha, applied for bail in a case registered under Sections 21(c) and 22 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, alleging that codeine‑containing cough syrup (Onerex) seized from his brother's tea shop was not contraband because its concentration (0.2%) was below the 2.5% limit prescribed in Notification S.O. 826(E) of 1985. The petitioner argued that he had no personal possession of the seized material and that the quantity recovered was not a commercial quantity, while the State contended that the entire seized material, irrespective of concentration, constituted contraband, citing the Supreme Court’s decision in Hira Singh v. Union of India. The Court examined the applicability of Section 2(d) of the NDPS Act and the central government’s notification, concluding that the seized syrup fell outside the definition of contraband and that the petitioner’s custody was unwarranted. Consequently, the Court ordered the petitioner to be released on bail upon furnishing a bond of Rs.10,000 with two sureties. The judgment also observed that cases involving low‑concentration codeine cough syrups should be prosecuted under the Drugs and Cosmetic Act rather than the NDPS Act.
Issues considered
- Whether the codeine‑containing cough syrup seized, having a concentration of 0.2%, falls within the definition of contraband under the NDPS Act.
- Whether the petitioner’s alleged possession of the seized material is established for the purpose of bail.
- Whether the quantity recovered constitutes a 'commercial quantity' under the NDPS Act.
- Whether bail should be granted to the petitioner under Sections 21(c) and 22 of the NDPS Act.
Legislation cited
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 21(c), 22, 2(d)
Subjects
- bail
- NDPS Act
- codeine
- contraband
- commercial quantity
- exemption notification
- Drugs and Cosmetic Act
- seizure
- judicial custody
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.15718 of 2026
Arising Out of PS. Case No.-94 Year-2025 Thana- Kotwali District- Darbhanga
======================================================
Raushan Kumar Jha S/o Sri Moti Kant Jha R/o Mohalla - Professor Colony
Mirzapur Dighi, P.S - Kotwali, District - Darbhanga
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Ajay Thakur, Advocate
Mr. Purushottam Kumar, Advocate
Mr. Shivam Kumar, Advocate
For the Opposite Party/s : Mr. Khurshid Anwar, 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 Kotwali P.S. Case No. 94 of 2025 registered for the offence
punishable under Sections 21(c) and 22 of the N.D.P.S. Act.
3. The case of the prosecution is that from a tea shop
run by the brother of the petitioner, cough syrup containing
codeine namely, Onerex altogether 13.3 liter was recovered and
certain intoxicating medicines were also 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. Learned counsel has submitted that nothing has been
recovered from the possession of this petitioner rather the
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recovery has been made from the tea shop of the brother of the
petitioner. He has been framed in this case as he is the brother of
one Ranjan. There is no independent witness of the seizure list
rather they are police personnel and police has not complied
section 105 of BNSS while preparing the seizure list. Moreover,
the petitioner is languishing in judicial custody since
08.10.2025.
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
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, Onerex Cough syrup containing
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codeine has been recovered 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. So far as the recovery of intoxicating tablets are
concerned, nothing has been recovered from the possession of
this petitioner and the recovered intoxicating tablets are though
more than small quantity but is much less than commercial
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
from the possession of the 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
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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-cum-Special Judge (NDPS Act), Darbhanga in
connection with Kotwali P.S. Case No. 94 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)
Shubham/-
U T
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