Patna High Court
Sonu KumarversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The court held that the cough syrups, containing codeine below the 2.5% threshold, are exempt as manufactured drugs and not contraband, warranting the grant of bail.
Summary
The petitioner, Sonu Kumar, was arrested as a passenger in a tempo from which 791 litres of Wiscorex and Chefax‑TC cough syrups containing 0.2% codeine were seized, leading to charges under Section 30(a) of the Bihar Prohibition and Excise Act. He contended that he neither owned nor drove the vehicle, that the seizure was not made from his possession, and that the cough syrups fall within the exemption under Notification S.O. 826(E) dated 14‑11‑1985, which classifies such low‑concentration codeine preparations as manufactured drugs, not contraband. 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 renders the whole quantity contraband and that a commercial quantity was involved. The Court examined the applicability of Section 2(d) of the NDPS Act and the lack of jurisdiction over the seized material, noting the central government’s power to issue notifications. Concluding that the cough syrups did not constitute contraband, the Court granted bail to the petitioner upon furnishing a bond of Rs.10,000 with two sureties.
Issues considered
- Whether cough syrups containing codeine at a concentration of 0.2% fall within the definition of contraband under the NDPS Act and the Bihar Prohibition and Excise Act.
- Whether the seizure complied with Section 105 of the BNSS Act.
- Whether the petitioner is entitled to bail despite the alleged commercial quantity of the seized material.
- Whether Notification S.O. 826(E) 1985 exempts the seized preparations from prosecution.
Legislation cited
- BNSS Act — s. 105
- Narcotic Drugs and Psychotropic Substances Act — s. 2(d)
Subjects
- bail
- codeine
- cough syrup
- NDPS Act
- contraband
- concentration exemption
- Bihar Prohibition and Excise Act
- commercial quantity
- seizure procedure
- Section 105
- Notification S.O. 826(E)
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.20761 of 2026
Arising Out of PS. Case No.-40 Year-2026 Thana- ALAMGANJ District- Patna
======================================================
Sonu Kumar Son of Shailesh Rai @ Shailesh Ram @ Kaushlendra Kumar
R/o Gudki Mandi, Afrabad Nahar Alamganj, P.S. - Alamganj, Dist. - Patna.
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Sunil Kumar Singh, Advocate
For the Opposite Party/s : Mr. Ramesh Chandra, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
2 02-04-2026 Heard learned counsel for the petitioner and the
learned APP for the State.
2. The petitioner has prayed for bail in connection
with Alamganj P.S. Case No. 40 of 2026 registered for the
offence punishable under Section 30(a) of the Bihar Prohibition
and Excise Act.
3. The case of the prosecution, in short, is that from a
tempo, altogether 791 liters of Wiscorex and Chefax-TC cough
syrup containing codeine 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. He also submits that the petitioner is neither owner nor
driver of the Auto rather he was merely a passenger in that auto.
Patna High Court CR. MISC. No.20761 of 2026(2) dt.02-04-2026
2/4
He further submits that nothing has been recovered from the
possession of the petitioner. The petitioner is merely a cousin
brother of the driver. The witnesses of the seizure list are police
personnel and the police has not complied with Section 105 of
the BNSS while making the seizure. Moreover, a statement has
been made in para 3 of the petition that petitioner has no
criminal antecedent and he is languishing in judicial custody
since 14.01.2026.
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.
Patna High Court CR. MISC. No.20761 of 2026(2) dt.02-04-2026
3/4
6. In this case, Wiscorex and Chefax-TC cough syrup
containing codeine were recovered from a Tempo 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.
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
Patna High Court CR. MISC. No.20761 of 2026(2) dt.02-04-2026
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of the like amount each to the satisfaction of the learned Special
Judge, Exclusive Special Court of Excise, Patna City, Patna in
connection with Alamganj P.S. Case No. 40 of 2026.
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)
Sudhanshu/-
U T
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