Patna High Court
Md. Salamat Darzi @ Md. SalamatversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The court held that cough syrup with codeine concentration below 2.5% does not constitute contraband under the NDPS Act, and therefore the petitioner is entitled to bail.
Summary
The petitioner, Md. Salamat Darzi, was arrested during a police patrol and 30 bottles of cough syrup containing 0.2% codeine, along with other tablets, were seized from his possession. He sought bail for offences under Sections 20 and 22 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, arguing that the codeine concentration was below the 2.5% threshold prescribed in a 1985 government notification, making the syrup a non‑contraband, licensed Schedule‑H drug. The State contended that, per the Supreme Court’s decision in Hira Singh v. Union of India, any non‑toxic material mixed with contraband renders the whole quantity contraband and that the seized amount constituted a commercial quantity. The court examined the statutory definition under Section 2(d) of the NDPS Act and the central government’s power to issue notifications, concluding that the low‑concentration cough syrup does not fall within the ambit of contraband. Consequently, the court granted bail to the petitioner upon furnishing a bond and sureties.
Issues considered
- Whether cough syrup containing codeine at 0.2% concentration is deemed contraband under the NDPS Act.
- Whether the quantity seized amounts to a 'commercial quantity' for the purposes of Sections 20 and 22 of the NDPS Act.
- Whether procedural lapses in seizure (non‑compliance with Section 105 of BNSS) affect the bail application.
- Whether the case should be prosecuted under the NDPS Act or the Drugs and Cosmetic Act.
Legislation cited
- Narcotic Drugs and Psychotropic Substances Act — s. 20, 22, 2(d)
Subjects
- bail
- NDPS Act
- codeine
- contraband
- seizure procedure
- commercial quantity
- Drugs and Cosmetic Act
- notification
- concentration limit
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.19278 of 2026
Arising Out of PS. Case No.-16 Year-2025 Thana- HARLAKHI District- Madhubani
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Md. Salamat Darzi @ Md. Salamat Son of Muslim Darzi Resident of Village -
Darzi Tola ward no 8, Janakpur, P.S. - Janakpur, District - DHANUSHA,
NEPAL.
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Subhash Kumar Jha, Advocate
For the Opposite Party/s : Mr. Choubey Jawahar, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
2 10-04-2026 Heard learned counsel for the petitioner and learned
APP for the State.
2. The petitioner has prayed for bail in connection
with Harlakhi P.S. Case No. 16 of 2025 registered for the
offence punishable under Sections 20 and 22 of the N.D.P.S. Act
which was earlier rejected by this court vide order dated
20.08.2025 passed in Cr. Misc. No. 41371 of 2025.
3. The case of the prosecution is that on 21.01.2025
police personnel along with SSB had gone for patrolling and
vehicle checking and while checking, the accused petitioner was
apprehended and from his possession, altogether 30 bottles each
of 100 ml of cough syrup containing codeine was recovered and
also 59 Nitrazepam tablets IP each of 10 mg and 48 Spasmo-
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Proxyvon plus capsules were 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. The petitioner has no concern in any way with the alleged
contraband. There is no independent witness of the seizure list.
Police has not complied section 105 of BNSS while preparing
seizure. Nothing has been recovered from his possession. A
statement has been made in para-3 of this petition that the
petitioner has got no criminal antecedent and he is languishing
in judicial custody since 22.01.2025. Learned counsel has
further submitted that this Court has granted bail to many
accused persons in these types of cases in Cr. Misc. Nos. 77145
of 2025 and 86466 of 2025.
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
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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, Cough syrup containing codeine
phosphate 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.
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 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.
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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
Additional Sessions Judge 4th , Madhubani in connection with
Harlakhi P.S. Case No. 16 of 2025.
10. Before parting, it is very strange that the cases
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)
Shubham/-
U T
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