Patna High Court
Surfan Baitha @ Sarfan BaithaversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
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
- Bihar Narcotic Substances Act — s. 105
- Narcotic Drugs and Psychotropic Substances Act — s. 2(d)
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
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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
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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
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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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