Patna High Court
Md. Ashiq @ Aashik @ Md. AshiqueversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The Court held that the seized cough syrup does not constitute a narcotic drug under the NDPS Act and therefore granted regular bail to the petitioner.
Summary
The petitioner, Md. Ashiq, sought regular bail in a case under Sections 21, 22, 23 of the NDPS Act and Section 111(1) of the Bihar Narcotic Substances Act, alleging that the seized 103 litres of codeine‑containing cough syrup was not a contraband because the concentration was below the statutory limit and the seizure did not comply with Section 105 of the BNSS. The prosecution argued that the entire mixture constituted contraband and that a commercial quantity had been recovered, relying on the Supreme Court’s decision in Hira Singh v. Union of India. The petitioner contended that similar co‑accused had been granted bail and that the drug fell within the exemption notified under S.O. 826(E) dated 14‑11‑1985, which permits codeine concentrations up to 2.5 %. The Court examined the statutory definition of narcotic drug under Section 2(d) of the NDPS Act and the central government’s power to issue notifications, concluding that the seized material did not meet the definition of contraband. Accordingly, the Court ordered the petitioner’s release on bail upon furnishing a bond of Rs.10,000 with two sureties, and criticized the routine filing of such cases under the NDPS Act instead of the Drugs and Cosmetic Act.
Issues considered
- Whether the seized cough syrup containing codeine falls within the definition of a narcotic drug under the NDPS Act.
- Whether the quantity recovered constitutes a 'commercial quantity' of contraband.
- Whether the seizure complied with Section 105 of the Bihar Narcotic Substances Act.
- Whether the petitioner is entitled to regular bail despite the NDPS charges.
Legislation cited
- Bihar Narcotic Substances Act — s. 105, 111(1)
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 21, 22, 23, 2(d)
Subjects
- bail
- NDPS Act
- codeine
- contraband
- seizure procedure
- Section 105
- Schedule H
- Drugs and Cosmetic Act
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.22264 of 2026
Arising Out of PS. Case No.-212 Year-2025 Thana- R S P.S. District- Araria
======================================================
Md. Ashiq @ Aashik @ Md. Ashique, S/O Ghayas Uddin @ Md. Ghyas,
Resident of Sisauna Gaiyari, Ward no.- 5, P.O- Gaiyari, P.S and District-
Araria
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr.Ranjeet Choubey, Advocate
For the Opposite Party/s : Mr.Rabindra Kumar, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
2 17-04-2026 Heard learned counsel for the petitioner and learned
APP for the State.
2. The petitioner has prayed for regular bail in a case
registered for the offence punishable under Sections 21, 22 and
23 of the NDPS Act and under Section 111(1) of the BNS.
3. The case of the prosecution, in short, is that from
the possession of the petitioner along with two co-accused Shafi
Ahmad and Md. Saheb, altogether 103 liters cough syrup
containing codeine was recovered.
4. Learned counsel for the petitioner has submitted
that nothing has been recovered from the possession of this
petitioner. From perusal of the seizure list it will transpire that
the witnesses of the seizure list are police personnel and they
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have not complied Section 105 of the BNSS while making
seizure. It has further been submitted that though police has
stated that cough syrup containing codeine was recovered but
has not mentioned brand name. Without brand name it cannot be
ascertained as to what was the concentration of codeine in the
said cough syrup. Learned counsel for the petitioner has
submitted that the petitioner is having no criminal antecedent. It
has also been submitted that similarly situated co-accused
persons Md. Shafi Ahmad and Md. Shaheb have been granted
bail by this Court vide Cr. Misc. Nos. 4819 of 2026 and 14466
of 2026 respectively. The case of this petitioner stands on
similar footing. Moreover, he is in judicial custody since
30.11.2025.
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
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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. 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.
7. 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.
8. Considering the aforesaid facts and circumstances
of the case, this court is inclined to enlarge the petitioner on
bail. The above named petitioner is directed to be released on
bail in connection with R.S. P.S. Case No. 212 of 2025 on
furnishing bail bond of Rs.10,000/- (ten thousand) with two
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sureties of the like amount each to the satisfaction of learned
Special Judge, NDPS Act, Araria.
9. 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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