Patna High Court
Gaurav Kumar Singh @ Gaurav Singh @ Sunny KumarversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The Court held that the petitioner is entitled to bail because the seized cough syrup does not constitute contraband under the NDPS Act.
Summary
Gaurav Kumar Singh was arrested after 6.7 litres of Wiscorex cough syrup containing codeine were seized from his house and he was charged under Section 21(c) of the NDPS Act. The petitioner sought regular bail, contending that the seizure was not made in accordance with Section 105 of the BNSS and that the codeine concentration (below 2.5%) exempted the syrup under Notification S.O. 826(E) of 1985, thus it should not be treated as contraband. The State argued, relying on the Supreme Court decision in Hira Singh v. Union of India, that any non‑toxic material mixed with a contraband renders the whole quantity contraband and that the seized amount amounted to a commercial quantity. The Court observed that under Section 2(d) of the NDPS Act the substance is not a narcotic drug and that the Central Government’s notification governs the classification, concluding there was no jurisdiction to treat it as contraband. Accordingly, the Court granted the petitioner bail on a bond of Rs.10,000 with two sureties, and noted that such cases might be more appropriately dealt with under the Drugs and Cosmetics Act.
Issues considered
- Whether the codeine‑containing cough syrup, with concentration below 2.5%, falls within the definition of contraband under the NDPS Act.
- Whether the seizure complied with Section 105 of the BNSS Act.
- Whether the quantity recovered constitutes a commercial quantity for bail considerations.
- Whether bail can be granted in a case instituted under Section 21(c) of the NDPS Act.
Legislation cited
- Bihar Narcotic Substances Act — s. 105
- Drugs and Cosmetics Act
- Narcotic Drugs and Psychotropic Substances Act — s. 21(c), 2(d)
Subjects
- bail
- NDPS Act
- codeine
- contraband
- Section 21(c)
- commercial quantity
- seizure
- Section 105
- notification
- Drugs and Cosmetics Act
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.17850 of 2026
Arising Out of PS. Case No.-25 Year-2026 Thana- SUPPI District- Sitamarhi
======================================================
Gaurav Kumar Singh @ Gaurav Singh @ Sunny Kumar Son of Keshav
Kumar Singh @ Keshav Singh Resident of village - Sasaula, Police Station -
Suppi, District - Sitamarhi
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Uday Kumar, Advocate
For the Opposite Party/s : Mr. Akshay Lal Pandit, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
2 24-03-2026 Heard learned counsel for the petitioner and learned
APP for the State.
2. The petitioner has prayed for regular bail in a case
registered for the offence punishable under Section 21(c) of the
NDPS Act.
3. The case of the prosecution, in short, is that from
the house of this petitioner Wiscorex cough syrup containing
codeine altogether 6.7 liter were recovered.
4. Learned counsel for the petitioner submits that
nothing has been recovered from the possession of this
petitioner. Learned counsel for the petitioner has further
submitted that the witnesses of the seizure list are police
personnel and police has not complied Section 105 of the BNSS
Patna High Court CR. MISC. No.17850 of 2026(2) dt.24-03-2026
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while making seizure. Learned counsel for the petitioner has
further submitted that the petitioner is in judicial custody since
24.01.2026.
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, Wiscorex Cough syrup containing
codeine phosphate has been recovered and the concentration of
the codeine in this drug is less than 2.5% as provided in the
above notification.
7. Learned APP appearing for the State has
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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.
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 Special Judge, Sitamarhi in connection with Suppi P.S. Case
No. 25 of 2026.
10. Before parting, it is very strange that the cases
where cough syrups containing codeine are recovered, the
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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)
durgesh/-
U T
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