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Patna High Court

Pawan SahversusThe State of Bihar

Decided
Disposal
ALLOWED

Holding

The Court held that the seized cough syrup does not constitute contraband under the NDPS Act and therefore the petitioner is entitled to bail.

Summary

The petitioner, Pawan Sah, sought bail in a case where 7.5 litres of codeine phosphate and triprolidine HCl cough syrup were seized from a scooty and the offence alleged under Section 21(C) of the NDPS Act. The petitioner contended he was neither the owner nor driver, that the seizure was improper, and that the drug’s codeine concentration (0.2%) fell below the 2.5% threshold prescribed in Notification S.O. 826(E) 1985, thus not constituting contraband. The State argued that the entire mixture was contraband and amounted to a commercial quantity, relying on 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 procedural requirements of Section 105 of the B.N.S.S. Act, concluding that the seized preparation did not meet the definition of a narcotic drug under the Act. Consequently, the Court granted bail to the petitioner 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 contraband under the NDPS Act.
  • Whether the seizure complied with the procedural requirements of Section 105 of the B.N.S.S. Act.
  • Whether bail should be granted despite the State’s claim of commercial quantity.
  • Whether Section 2(d) of the NDPS Act excludes the seized preparation from being treated as a narcotic drug.

Legislation cited

Subjects

  • bail
  • NDPS Act
  • codeine concentration
  • contraband
  • commercial quantity
  • seizure procedure
  • Section 2(d)
  • notification S.O. 826(E)
  • drug law

Judgment

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                              CRIMINAL MISCELLANEOUS No.16971 of 2026
                      Arising Out of PS. Case No.-6 Year-2026 Thana- SONBERSA District- Sitamarhi
                 ======================================================
                 Pawan Sah, S/o Nand Lal Sah, R/o vill - Bagmati, ward no. 5, P.S.- Bagmati,
                 P.O. - Bagmati, Distt- Sarlahi, Nepal

                                                                                   ... ... Petitioner/s
                                                       Versus
                 The State of Bihar

                                                        ... ... Opposite Party/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s     :       Mr. Priyanshu Kumar Singh, Advocate
                 For the Opposite Party/s :       Mr. Mohammad Sufyan, APP
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
                                       ORAL ORDER

2   16-03-2026                  Heard learned counsel for the petitioner and learned

                   APP for the State.

                                2. The petitioner has prayed for bail in connection

                   with Sonbarsa 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 a

                   scooty, altogether 7.5 liters of codeine phosphate and

                   triprolidine HCL cough syrup 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. Nothing has been recovered from his possession. He is

                   neither the owner nor the driver of the said scooty. Learned

                   counsel for the petitioner has submitted that from perusal of the
Patna High Court CR. MISC. No.16971 of 2026(2) dt.16-03-2026
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          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 06.01. 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, Codeine Phosphate & Triprolidine

          HCL Cough Syrup has been recovered from a scooty 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.
Patna High Court CR. MISC. No.16971 of 2026(2) dt.16-03-2026
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                       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 Court

          of Sessions Judge-cum-Special Judge (N.D.P.S. Act), Sitamarhi

          in connection with Sonbarsa P.S. Case No. 06 of 2026.

                       10. Before parting, it is very strange that the cases
             Patna High Court CR. MISC. No.16971 of 2026(2) dt.16-03-2026
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                       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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