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Patna High Court

Surfan Baitha @ Sarfan BaithaversusThe State of Bihar

Decided
Disposal
ALLOWED

Holding

The Court granted bail to the petitioners, finding that the seized product did not fall within the definition of a narcotic drug under the NDPS Act.

Summary

Surfan Baitha and Sohrab Baitha were arrested in connection with a case under Section 30(a) of the Bihar Prohibition and Excise Act after 470 bottles of Wiscorex cough syrup containing codeine were seized from an orchard belonging to them. The petitioners contended that the seizure was illegal, the codeine concentration (0.2%) was below the 2.5% threshold prescribed in Notification No. S.O. 826(E) under the NDPS Act, and therefore the product was not a narcotic drug. The State argued, relying on the Supreme Court decision in Hira Singh v. Union of India, that any non‑toxic material mixed with a contraband renders the whole quantity contraband and that the seized amount constituted a commercial quantity. The Court examined the applicability of Section 2(d) of the NDPS Act and noted the lack of jurisdiction to treat the syrup as a narcotic. Considering the facts, the Court ordered that the petitioners be released on bail upon furnishing a bail bond of Rs. 10,000 with two sureties each.

Issues considered

  • The validity of the charge under the Bihar Prohibition and Excise Act for possession of codeine‑containing cough syrup.
  • Whether the codeine concentration of 0.2% exempts the product from being classified as a narcotic drug under the NDPS Act.
  • Whether the seizure complied with procedural requirements of Section 105 of the Bihar Narcotic Substances Act.
  • The appropriateness of granting bail to the petitioners.

Legislation cited

Subjects

  • bail
  • codeine
  • NDPS Act
  • Bihar Prohibition and Excise Act
  • seizure
  • contraband
  • jurisdiction
  • concentration threshold

Judgment

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                              CRIMINAL MISCELLANEOUS No.21452 of 2026
                         Arising Out of PS. Case No.-8 Year-2026 Thana- Bathnaha District- Araria
                 ======================================================
           1.     Surfan Baitha @ Sarfan Baitha, S/O Late Bhutai Baitha, R/O Village-
                  Amauna, Ward No. 20, P.S- Jogbani, Distt.- Araria. At present- R/O Village-
                  Sonapur, Ward No. 11, P.S- Bathnaha, Distt.- Araria.
           2.    Sohrab Baitha @ Sohrab, S/O Surfan Baitha, R/O Village- Amauna, Ward
                 No. 20, P.S- Jogbani, Distt.- Araria. At present- R/O Village- Sonapur, Ward
                 No. 11, P.S- Bathnaha, Distt.- Araria.

                                                                                     ... ... Petitioner/s
                                                         Versus
                 The State of Bihar

                                                        ... ... Opposite Party/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s     :        Mr.Vijay Kishore Bharti, Advocate
                 For the Opposite Party/s :        Mr.Madan Kumar, APP
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
                                       ORAL ORDER

2   06-04-2026                  Heard learned counsel for the petitioners and learned

                   APP for the State.

                                2. The petitioners have prayed for bail in connection

                   with Bathnaha P.S. Case No. 08 of 2026 registered for the

                   offence punishable under Section 30(a) of Bihar Prohibition and

                   Excise Act.

                                3. The case of the prosecution, in short, is that

                   altogether 470 bottles of Wiscorex Cough Syrup (100 ml each)

                   containing codeine were recovered from an orchard which

                   belongs to the petitioners.

                                4. Learned counsel appearing on behalf of the

                   petitioners has submitted that petitioners are innocent and have
Patna High Court CR. MISC. No.21452 of 2026(2) dt.06-04-2026
                                            2/4




          committed no offence. They have been falsely implicated in this

          case. Nothing has been recovered from their possession. The

          recovery has been made from the orchard which is an open

          place. Learned counsel for the petitioners has submitted that

          from perusal of the seizure list, it will transpire that the seizure

          list 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 seizure. Petitioner no.1 is having

          criminal antecedent of one case in which he is on bail whereas

          petitioner no.2 is having no criminal antecedent. They are

          languishing in judicial custody since 16.01.2026.

                       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
Patna High Court CR. MISC. No.21452 of 2026(2) dt.06-04-2026
                                            3/4




          concentration of not more than 2.5 % in undivided preparations

          and which have been established in therapeutic practice.

                       6. In this case, Wiscorex Cough Syrup has been

          recovered from the orchard of the petitioners 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

          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 petitioners on bail. The above named
             Patna High Court CR. MISC. No.21452 of 2026(2) dt.06-04-2026
                                                         4/4




                       petitioners are directed to be enlarged on bail on furnishing bail

                       bond of Rs. 10,000/- (Rs. ten thousand only) each with two

                       sureties of the like amount each to the satisfaction of the learned

                       Exclusive Special Judge, Excise-I, Araria in connection with

                       Bathnaha P.S. Case No. 08 of 2026.


                                                       (Ashok Kumar Pandey, J)

lata/-
U        T


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