Patna High Court
Sanjeev KumarversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The Court held that the seizure does not attract NDPS jurisdiction because the codeine concentration is below the 2.5% exemption limit, and therefore granted bail to the petitioner.
Summary
Sanjeev Kumar, driver‑cum‑owner of a Scorpio vehicle, was arrested after police seized 1,200 bottles of RTX‑SCEN cough syrup containing 0.2% codeine and charged under the Bihar Prohibition and Excise Act and later the NDPS Act. The petitioner contended that the seizure was illegal, the concentration of codeine fell below the 2.5% threshold set by the 1985 Central Government notification exempting such preparations, and that the police had not complied with Section 105 of the Bihar Narcotic Substances Act. The State argued, relying on the Supreme Court’s decision in Hira Singh v. Union of India, that any non‑toxic material mixed with contraband makes the whole quantity contraband and thus the case warranted NDPS jurisdiction. The Court examined the statutory provisions, the exemption notification and the precedent, concluding that the seized syrup did not attract NDPS jurisdiction. Consequently, the Court granted bail to the petitioner on a bond of Rs.10,000 with two sureties, and suggested that such cases be dealt with under the Drugs and Cosmetic Act rather than the NDPS Act.
Issues considered
- Whether the seizure of cough syrup containing 0.2% codeine falls within the ambit of the NDPS Act.
- Whether the petitioner is entitled to bail given the alleged procedural irregularities and low concentration of codeine.
- Whether the appropriate statutory regime for prosecution is the NDPS Act or the Drugs and Cosmetic Act.
Legislation cited
- Bihar Narcotic Substances Act — s. 105
- Narcotic Drugs and Psychotropic Substances Act — s. 21(b), 29, 2(d), 8(c)
Subjects
- bail
- NDPS Act
- codeine
- cough syrup
- contraband
- seizure
- jurisdiction
- notification exemption
- Drugs and Cosmetic Act
- procedural lapse
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.20517 of 2026
Arising Out of PS. Case No.-218 Year-2025 Thana- MANSI District- Khagaria
======================================================
Sanjeev Kumar, S/o Ras Bihari Singh, Resident of village - Choti Balaha, P.S
- Mansi, District - Khagaria
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr.Brajesh Verma, Advocate
For the Opposite Party/s : Mr.Bishweshwar Ram, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
2 31-03-2026 Heard learned counsel for the petitioner and learned
APP for the State.
2. The petitioner has prayed for bail in connection
with Mansi P.S. Case No. 218 of 2025 registered for the offence
punishable under Section 30(f) of the Bihar Prohibition and
Excise Act and further during investigation it was converted into
Sections 8(c), 21(b) and 29 of the N.D.P.S. Act.
3. The case of the prosecution, in short, is that
altogether 1200 files of 100 ml of RTX-SCEN Cough Syrup
containing codeine were recovered from the Scorpio Vehicle.
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. He is driver-cum-owner of the Scorpio from which the
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recovery was made. Nothing has been recovered from his
possession. Learned counsel for the petitioner has submitted that
from perusal of the 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 the seizure. Petitioner is
languishing in judicial custody since 07.09.2025.
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, RTX-SCEN Cough Syrup has been
recovered from the Scorpio Vehicle and the concentration of the
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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
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
Exclusive Special Excise Judge-I, Khagaria in connection with
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4/4
Mansi P.S. Case No. 218 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)
lata/-
U T
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