Patna High Court
Meghnath Prasad KushwahaversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The Court held that the low concentration of codeine (0.2%) and the small quantity of nitrazepam do not constitute contraband under the NDPS Act, and therefore granted bail to the petitioner.
Summary
Meghnath Prasad Kushwaha applied for bail after being arrested in connection with a case under Section 21(c) of the NDPS Act, where 33 litres of Onerex cough syrup (codeine 0.2%) and 1,200 tablets of Nitzascen‑10 (nitrazepam) were seized from his homestead. The petitioner argued that the seizure was improper, the codeine concentration was below the 2.5% threshold prescribed in the Central Government notification, and therefore the material did not constitute contraband under the NDPS Act. The State contended that the seized quantity amounted to a commercial quantity and cited the Supreme Court decision in Hira Singh v. Union of India, holding that non‑toxic material mixed with contraband is treated as contraband. The Court examined the statutory provisions, noted that Section 2(d) of the NDPS Act excludes the drug itself from being a narcotic and that the Central Government notification governs the concentration limit, and concluded that there was no jurisdictional basis to treat the seized items as NDPS contraband. Consequently, the Court granted bail to the petitioner on the condition of a bond and sureties.
Issues considered
- Whether the seized cough syrup and tablets, containing codeine at 0.2% and nitrazepam in a small quantity, fall within the definition of contraband under the NDPS Act.
- Whether the seizure complied with Section 105 of the B.N.S.S. and the applicable Central Government notification.
- Whether the petitioner is entitled to bail despite the alleged commercial quantity of the seized substances.
Legislation cited
- B.N.S.S. — s. 105
- Narcotic Drugs and Psychotropic Substances Act — s. 21(c), 2(d)
Subjects
- bail
- NDPS Act
- codeine concentration
- contraband
- seizure procedure
- Section 105
- commercial quantity
- jurisdiction
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.16006 of 2026
Arising Out of PS. Case No.-6 Year-2026 Thana- INARWA District- West Champaran
======================================================
Meghnath Prasad Kushwaha, Son of Late Harangi Prasad Kushwaha, R/o
Khamhiya, Ward No. 11, P.S. - Inarwa, District - West Champaran.
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr.Bimlesh Kumar Pandey, Advocate
For the Opposite Party/s : Mr.Anish Chandra, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
3 20-04-2026 Heard learned counsel for the petitioner and learned
APP for the State.
2. The petitioner has prayed for bail in connection
with Inarwa P.S. Case No. 06 of 2026 registered for the offence
punishable under Section 21(c) of the N.D.P.S. Act.
3. The case of the prosecution, in short, is that from
the homestead land of this petitioner, altogether 33 liters of
Onerex Cough Syrup containing codeine and 1200 tablets of
Nitzascen-10 containing Nitrezepam 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
case. Nothing has been recovered from his possession. The
Recovery has been made from an open place. Learned counsel
Patna High Court CR. MISC. No.16006 of 2026(3) dt.20-04-2026
2/4
for the 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 languishing in judicial custody
since 13.01.2026.
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, Onerex Cough Syrup and Nitzascen-10
tablets have been recovered from the homestead land of the
petitioner and the concentration of the codeine in Onerex Cough
Patna High Court CR. MISC. No.16006 of 2026(3) dt.20-04-2026
3/4
Syrup is approximately 0.2% which is less than 2.5% as
provided in the above notification. Regarding the tablets, it has
been submitted that the total weight of Nitrezepam is 12 gram
which is though more than small quantity but is much less than
commercial quantity.
7. Learned APP appearing for the State has
vehemently the application for bail and has submitted that
petitioner is having criminal antecedent of one case. It has
further been 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
Patna High Court CR. MISC. No.16006 of 2026(3) dt.20-04-2026
4/4
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
Exclusive Special Judge, NDPS, Bettiah, West Champaran in
connection with Inarwa P.S. Case No. 06 of 2026.
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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