Patna High Court
Arjun YadavversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The Court held that the seized cough syrup does not constitute contraband under the NDPS Act and therefore granted bail to the petitioner.
Summary
Arjun Yadav applied for bail after being arrested in connection with a case under Sections 21(c) and 8(c) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act for allegedly possessing 140 bottles of Wiscuf cough syrup containing codeine. The petitioner contended that the syrup, with a codeine concentration of about 0.2%, is exempt under Notification S.O. 826(E) dated 14‑11‑1985, which permits preparations containing up to 2.5% codeine, and that the seizure list was not prepared in accordance with Section 105 of the Bihar Narcotic Substances (Control) Act. The State relied on the Supreme Court decision in Hira Singh v. Union of India, arguing that any non‑toxic material mixed with contraband makes the whole quantity contraband and that a commercial quantity was seized. The Court examined Section 2(d) of the NDPS Act and held that the low concentration does not bring the syrup within the definition of a narcotic drug, and therefore the statutory basis for the charge was lacking. Consequently, the Court ordered the petitioner’s bail on a bond of Rs 10,000 with two sureties.
Issues considered
- Whether cough syrup containing codeine at 0.2% concentration falls within the definition of a narcotic drug/contraband under the NDPS Act.
- Whether the seizure complied with the procedural requirements of Section 105 of the Bihar Narcotic Substances (Control) Act.
- Whether the petitioner is entitled to bail pending trial.
Legislation cited
- Bihar Narcotic Substances (Control) Act — s. 105
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 21(c), 2(d), 8(c)
Subjects
- bail
- NDPS Act
- codeine
- cough syrup
- contraband
- concentration exemption
- Section 2(d)
- Section 105
- notification
- commercial quantity
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.23066 of 2026
Arising Out of PS. Case No.-9 Year-2026 Thana- Baijnathpur District- Saharsa
======================================================
Arjun Yadav Son of Late Jhakas Yadav @ Jhakash Yadav Resident of Village-
Gamhariya, Ward No. 11, P.S.- Baijnathpur, District- Saharsa
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Mritunjay Kumar, Advocate
For the Opposite Party/s : Mr. Parmanand Kumar, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
2 08-04-2026 Heard learned counsel for the petitioner and learned
APP for the State.
2. The petitioner has prayed for bail in connection
with Baijnathpur P.S. Case No. 09 of 2026 registered for the
offence punishable under Sections 21(c) and 8(c) of the N.D.P.S.
Act.
3. The case of the prosecution is that from a bamboo
clamp, altogether 140 files each of 100 ml of wiscuf cough
syrup containing codeine was 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. Nothing has been recovered from the possession of the
petitioner. The petitioner has no concern in any way with the
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alleged contraband. There is no independent witness of the
seizure list. Police has not complied section 105 of BNSS while
preparing seizure list. Moreover, the petitioner is languishing in
judicial custody since 30.01.2026.
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, wiscuf Cough syrup containing codeine
phosphate has been recovered from the truck 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.
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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
of the like amount each to the satisfaction of the learned
Principal District and Sessions Judge, Saharsa in connection
with Baijnathpur P.S. Case No. 09 of 2026.
10. Before parting, it is very strange that the cases
where cough syrups containing codeine are recovered, the
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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)
Shubham/-
U T
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