Patna High Court
Manish KumarversusThe State of Bihar
- Decided
- Disposal
- BAIL GRANTED
- Bench
- RAJESH KUMAR VERMA
Holding
The court held that the seized codeine syrup does not constitute a narcotic drug under the NDPS Act and consequently granted bail to the petitioner.
Summary
Manish Kumar was arrested on 20 January 2026 after police recovered 25 litres of codeine‑phosphate cough syrup from his residence. He applied for bail, contending that the syrup, containing only 0.2% codeine, falls outside the definition of a narcotic drug under Section 21(b) of the NDPS Act as per Central Government Notification S.O. 826(E), and should instead be governed by the Drugs and Cosmetic Act. The State opposed bail, citing a prior criminal antecedent and arguing the offence remains punishable under the NDPS Act. The court examined the statutory concentration threshold and noted that a co‑accused in a similar case had been granted bail. Concluding that the seized preparation does not attract the NDPS regime, the court granted bail with a bond of Rs.10,000 and specified conditions for appearance, non‑tampering with evidence, and verification of antecedents.
Issues considered
- Whether the codeine‑phosphate cough syrup seized, with a concentration of 0.2%, falls within the definition of a narcotic drug under Section 21(b) of the NDPS Act.
- Whether the petitioner is entitled to bail despite a prior criminal antecedent.
- Whether the bail granted to a similarly situated co‑accused is determinative for the petitioner’s bail application.
Legislation cited
Subjects
- bail
- NDPS Act
- codeine concentration
- narcotic drug definition
- prior criminal antecedent
- Drugs and Cosmetic Act
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.19254 of 2026
Arising Out of PS. Case No.-28 Year-2026 Thana- BHELDI District- Saran
======================================================
Manish Kumar S/o Bhola Bhagat Resident of Village- Koreyan, P.S.- Bheldi,
District- Saran
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Ms. Eashita Raj, Advocate
For the Opposite Party/s : Mr. Navin Kumar Pandey, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJESH KUMAR VERMA
ORAL ORDER
3 07-05-2026 Heard Ms. Eashita Raj, learned counsel for the
petitioner and Mr. Navin Kumar Pandey, learned Additional
Public Prosecutor for the State.
2. Petitioner seeks bail who is in custody since
20.01.2026 in Bheldi P.S. Case No. 28 of 2026, F.I.R. dated
20.01.2026 for the offences punishable under Sections 21 (b)of
the Narcotic Drugs & Psychotropic Substance Act, 1985.
3. Recovery is of 25 liters of Codeine Syrup.
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
Patna High Court CR. MISC. No.19254 of 2026(3) dt.07-05-2026
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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 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
Patna High Court CR. MISC. No.19254 of 2026(3) dt.07-05-2026
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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.
Learned counsel for the petitoner next submits that similarly
situated co-accused person, namely, Varun Kumar has been
granted privilege of bail by this Court vide order 17.03.2026 in
Cr. Misc. No. 17746 of 2026 and 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 and
submits that petitioner carries one criminal antecedent other
than the present one but fairly submits on the basis of
paragraph-3 of the bail application that the petitioner is on bail
in the said matter.
8. Considering the aforesaid facts and circumstances,
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
Patna High Court CR. MISC. No.19254 of 2026(3) dt.07-05-2026
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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 absence on two consecutive dates without sufficient
reason, his 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
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)
Suruchi/-
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