Patna High Court
Karan Kumar @ KaranversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The court held that the cough syrup, containing codeine below the statutory 2.5% limit, does not constitute contraband under the NDPS Act and the petitioner is entitled to bail.
Summary
Karan Kumar was arrested in connection with the seizure of 360 bottles of Onerex cough syrup containing 0.2% codeine from a motorcycle and charged under Section 317(5) of the Bihar Narcotic Substances (BNSS) Act, 2023 and Sections 21(c), 23(c) and 29 of the NDPS Act. The petitioner contended that the seizure was illegal because the police did not comply with Section 105 of the BNSS, that the syrup’s codeine concentration was below the 2.5% threshold set by Central Government Notification S.O. 826(E) 1985, and therefore it should be treated as a manufactured drug exempt from NDPS liability. The State relied on the Supreme Court’s decision in Hira Singh v. Union of India, arguing that the entire mixture constitutes contraband and that the quantity recovered is commercial. The Court examined the statutory definitions, the applicable notification, and the relevance of Section 2(d) of the NDPS Act, concluding that the syrup does not fall within the ambit of contraband. Consequently, the Court granted bail to the petitioner on a bond of Rs. 10,000 with two sureties.
Issues considered
- Whether the seized cough syrup containing 0.2% codeine qualifies as contraband under the NDPS Act.
- Whether the police complied with Section 105 of the BNSS Act in effecting the seizure.
- Whether the petitioner can be held liable under Sections 317(5) BNSS and 21(c), 23(c), 29 NDPS.
- Whether bail should be granted pending trial.
Legislation cited
- Narcotic Drugs and Psychotropic Substances (NDPS) Act — s. 21(c), 23(c), 29, 2(d)
Subjects
- bail
- NDPS Act
- codeine
- contraband
- seizure
- Section 105
- manufactured drug
- central government notification
- BNSS Act
- Schedule H
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.22957 of 2026
Arising Out of PS. Case No.-719 Year-2025 Thana- CHHATAUNI District- East Champaran
======================================================
Karan Kumar @ Karan Son of Kuntilal Sah @ Untilal Sahu Resident of
village - Koriya Tola, Triloki Nath Mandir, P.S.- Raxaul, District - East
Champaran.
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Gaurav Prakash, Adv.
For the Opposite Party/s : Mr. Umeshanand Pandit, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
2 09-04-2026 Heard learned counsel for the petitioner and learned
APP for the State.
2. The petitioner has prayed for bail in connection
with Chhatauni P.S. Case No. 719 of 2025 registered for the
offence punishable under Sections 317(5) of the B.N.S., 2023
and Sections 21(c), 23(c) and 29 of the N.D.P.S. Act.
3. The case of the prosecution, in short, is that from a
bike, altogether 360 bottles of Onerex Cough Syrup containing
codeine of 100 ml each 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 one Arjun Kumar was apprehended
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and he has disclosed the name of this petitioner. Nothing has
been recovered from the possession of the petitioner. 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 28.01.2026.
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.
6. In this case, Onerex Cough syrup containing
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codeine phosphate has been recovered from the motorcycle 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
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of the like amount each to the satisfaction of the learned Chief
Judicial Magistrate, East Champaran, Motihari in connection
with Chhatauni P.S. Case No. 719 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)
Sudhanshu/-
U T
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