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Patna High Court

Sanjeev KumarversusThe State of Bihar

Decided
Disposal
ALLOWED

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

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
Patna High Court CR. MISC. No.20517 of 2026(2) dt.31-03-2026
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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
Patna High Court CR. MISC. No.20517 of 2026(2) dt.31-03-2026
                                            3/4




          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
             Patna High Court CR. MISC. No.20517 of 2026(2) dt.31-03-2026
                                                         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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