Patna High Court
Minhaj @ MiniversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The seized cough syrup does not qualify as a narcotic drug under the NDPS Act, so the court lacks jurisdiction to treat it as contraband and consequently grants bail to the petitioner.
Summary
The petitioner, Minhaj @ Mini, was arrested in connection with a case under Sections 8(c) and 21(b) of the NDPS Act after police seized 95 bottles of codeine‑containing cough syrup from his residence. He contended that the syrup, having a codeine concentration of about 0.2%, fell below the 2.5% threshold specified in Central Government Notification S.O. 826(E), and therefore did not constitute a narcotic drug under the Act. He also argued that the seizure violated Section 105 of the B.N.S.S. and that the police witnesses were not independent. The State relied on the Supreme Court’s decision in Hira Singh v. Union of India, asserting that any non‑toxic material mixed with contraband makes the whole quantity a commercial quantity of narcotic. The Court held that, in view of Section 2(d) of the NDPS Act, the seized preparation was not a narcotic drug and thus the court lacked jurisdiction to treat it as such, leading to the grant of bail on condition of a bond and sureties.
Issues considered
- Whether the codeine‑containing cough syrup, with a concentration of 0.2%, falls within the definition of a narcotic drug under the NDPS Act.
- Whether the quantity seized constitutes a ‘commercial quantity’ for the purposes of bail.
- Whether the seizure complied with the procedural requirements of Section 105 of the B.N.S.S.
- Whether bail should be granted to the petitioner pending trial.
Legislation cited
- B.N.S.S. — s. 105
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 21(b), 2(d), 8(c)
Subjects
- NDPS Act
- bail
- codeine
- narcotic drug definition
- commercial quantity
- seizure procedure
- Section 105
- concentration threshold
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.23652 of 2026
Arising Out of PS. Case No.-449 Year-2025 Thana- AMAUR District- Purnia
======================================================
Minhaj @ Mini Son of Late Amiruddin @ Azimuddin R/O Village- Bara Eid
Gah, P.S.- Amour, District- Purnea
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. N.K. Agrawal, Sr. Adv.
Mr. Bidhu Ranjan, Adv.
For the Opposite Party/s : Mr.Anand Kishore Choudhary, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
2 24-04-2026 Heard learned counsel for the petitioner and learned
APP for the State.
2. The petitioner has prayed for bail in connection
with Amour P.S. Case No. 449 of 2025 registered for the offence
punishable under Sections 8(c) and 21(b) of the N.D.P.S. Act.
3. The case of the prosecution is that from the house
of this petitioner, altogether 95 bottles of codeine cough syrup
containing codeine each of 100 ml 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. Learned counsel for the petitioner has submitted that from
perusal of the seizure list, it will transpire that the seizure
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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. He further submits that
similar situated co-accused namely Bibi Tabassum who is the
wife of this petitioner has been granted bail by this court vide
Cr. Misc. No. 88700 of 2025. The case of this petitioner stands
on similar footing. A statement has been made in para-3 of this
petition that the petitioner has got one criminal antecedent.
Moreover, he is languishing in judicial custody since
09.02.2026.
5. Learned counsel for the petitioner has submitted
that the Central Government has issued Notification No. S.O.
826(E) dated 14.11.1985 which is given hereunder:-
“S.O. 826(E). - In exercise of the
powers conferred by sub-clause (b) of
clause (xi) of section 2 of the Narcotic
Drugs and Psychotropic Substances
Act, 1985 (61 of 1985), the Central
Government hereby declares the
following narcotic substances and
preparations to be manufactured
drugs, namely:-
xxx
35. Methyl morphine (commonly known
as 'Codeine') and Ethyle morphine and
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their salts (including Dionine), all
dilutions and preparations except those
which are compounded with one or more
other ingredients and containing not
more than 100 milligrams of the drug
per dosage unit, and with a
concentration of not more than 2.5% in
undivided preparations and which have
been established in Therapeutic
practice.
xxx”
6. In this case, cough Syrup containing codeine
phosphate and triprolidine hydrochloride has been recovered
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
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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 Special Judge (NDPS Act), Purnea in connection with
Amour P.S. Case No. 449 of 2025.
(Ashok Kumar Pandey, J)
Sudhanshu/-
U T
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