Patna High Court
Varun KumarversusThe State of Bihar
- Decided
- Disposal
- BAIL GRANTED
- Bench
- RAJESH KUMAR VERMA
Holding
The Court held that the seized cough syrup does not fall under the NDPS Act and consequently granted bail to the petitioner.
Summary
Varun Kumar was arrested on 20 January 2026 for alleged possession and sale of 250 bottles of codeine‑phosphate cough syrup, alleged to be a contravention of Section 21(b) of the NDPS Act. The petitioner argued that the syrup contained only 0.2% codeine, which is below the 2.5% threshold specified in Central Government Notification S.O. 826(E), and therefore the seizure does not fall within the NDPS regime but under the Drugs and Cosmetics Act. He also highlighted his clean antecedent. The State opposed bail. The Court examined the statutory definition and the concentration of the drug, concluded that the substance does not attract NDPS provisions, and, considering the petitioner’s clean record, ordered his release on bail with standard conditions. The bail bond was set at Rs.10,000 with two sureties and conditions for appearance, non‑tampering with evidence, and verification of antecedents.
Issues considered
- Whether the codeine‑phosphate cough syrup seized, containing 0.2% codeine, falls within the definition of a narcotic drug under Section 21(b) of the NDPS Act.
- Whether the petitioner is entitled to bail pending trial.
Legislation cited
Subjects
- bail
- NDPS Act
- codeine concentration
- drug possession
- clean antecedent
- notification S.O. 826(E)
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.17746 of 2026
Arising Out of PS. Case No.-28 Year-2026 Thana- BHELDI District- Saran
======================================================
Varun Kumar Son of Bhola Bhagat Resident of Village- Koreyan, P.S.-
Bheldi, District- Saran, Bihar
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Ms. Eashita Raj, Advocate
: Ms.Priyanka Singh, Advocate
For the Opposite Party/s : Mr.Anand Kishore Choudhary, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJESH KUMAR VERMA
ORAL ORDER
2 17-03-2026 Heard Ms. Eashita Raj, learned counsel for the
petitioner and Mr.Anand Kishore Choudhary, learned A.P.P. for
the State.
2. The petitioner seeks bail, who is in custody since
20.01.2026 in connection with Bheldi P.S. Case No. 28 of 2026,
F.I.R. dated 20.01.2026 registered for the offence punishable
under Section 21(b) of N.D.P.S.Act.
3. FIR of this, case has been registered on the basis of
typed application of informant S.K. Jha S.I. of Bheldi P.S. that
on 19.1.2026 at about 23.00 O'clock of night, the informant got
an information that the petitioner and other co-accused persons
have brought drug paraphernalia in huge quantity and have kept
the same in their house. On getting this information, the
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informant along with other police personnel raided the house of
the accused persons and recovered banned cough syrup (drug
paraphernalia) 250 pieces of 100 gram total 25 liters from house
of the petitioner and other accused petitioners. Seizure list was
prepared and petitioner and other co-accused persons
apprehended confessed that they brought the recovered banned
cough syrup in their house and sold them for Rs. 250/- each to
the villagers.
4. Learned counsel appearing for the petitioner
submits that the petitioner has clean antecedent. It appears from
the FIR that 250 bottles of 100 ml each of ESKUF Cough
Syrup, which is CODEINE PHOSPHATE & TRIPROLIDINE
HYDROCHLORIDE SYRUP has been recovered from the
house of the petitioner.
5. Learned counsel for the petitioner submits that the
Central Government has issued Notification No. S.O. 826(E)
dated 14.11.1985 which is given hereunder:-
“S.O. 826(E). - In Exercise of the
powers conferred by sub-clause (b) of
clause (xi) of section 2 of the Narcotic
Drugs and Psychotropic Substances Act,
1985 (61 of 1985), the Central
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Government hereby declares the
following narcotic substances and
preparations to be manufactured drugs,
namely :-
xxxx
35. Methyl morphine (commonly known
as ‘Codeine’) and Ethyle morphine and
their salts (including Dionine), all
dilutions and preparations except those
which are compounded with one or more
other ingredients and containing not
more than 100 miligrams of the drug per
dosage unit, and with a concentration of
not more than 2.5% in undivided
preparations and which have been
established in Therapeutic practice.
xxx”
6. In this case, Codeine phosphate cough syrup 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 so the present case does not fall under the
N.D.P.S. Act which falls under the Drugs and Cosmetic Act and
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the petitioner is in custody since 20.01.2026.
7. Learned A.P.P. for the State, on the other hand, has
vehemently opposed the prayer for bail of the petitioner.
8. Considering the aforesaid facts and petitioner has
clean antecedent, let the petitioner, above named, be released on
bail on furnishing bail bond of Rs.10,000/- (Ten Thousand) with
two sureties of the like amount each to the satisfaction of
learned Sessions Judge, Saran in connection with Bheldi P.S.
Case No. 28 of 2026, with the following conditions:-
(I) Petitioner shall co-operate in the trial and shall be
properly represented on each and every date fixed by the Court
and shall remain physically present as directed by the Court and
on his/her absence on two consecutive dates without sufficient
reason, his/her bail bond shall be cancelled by the Court below.
(II) If the petitioner tampers with the evidence or the
witnesses, in that case, the prosecution will be at liberty to move
for cancellation of bail.
(III) And, further condition that the court below shall
verify the criminal antecedent of the petitioner and in case at
any stage, it is found that the petitioner has concealed his
criminal antecedent, the court below shall take step for
cancellation of bail bond of the petitioner. However, the
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acceptance of bail bonds in terms of the above-mentioned order
shall not be delayed for purpose of or in the name of
verification.
(Rajesh Kumar Verma, J)
Nitesh/-
U T
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