Patna High Court
Pawan SahversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
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
- B.N.S.S. Act — s. 105
- Narcotic Drugs and Psychotropic Substances Act — s. 21(C), 2(d)
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
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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.
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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
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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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