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Patna High Court

VikramversusThe State of Bihar

Decided
Disposal
ALLOWED

Holding

The Court held that the seized preparation does not constitute contraband under the NDPS Act due to its low codeine concentration and procedural irregularities, and therefore the petitioner is entitled to bail.

Summary

The petitioner, Vikram, sought bail in a case where 7.5 litres of codeine phosphate and triprolidine HCl cough syrup were seized from a scooty and the offence was alleged under Section 21(C) of the NDPS Act. He contended that he neither owned nor drove the scooty, that the seizure was conducted by police officers who were not independent witnesses, and that the seizure violated Section 105 of the Bihar Narcotic Substances Act. He further argued that the cough syrup contained only 0.2% codeine, well below the 2.5% threshold prescribed in Central Government Notification No. S.O. 826(E), and therefore did not constitute contraband under the NDPS Act. The State relied on the Supreme Court decision in Hira Singh v. Union of India, asserting that the entire mixture is deemed contraband and that a commercial quantity had been recovered. The High Court, noting the low concentration, the procedural lapses, and the applicability of the notification, granted bail to the petitioner on a bond of Rs.10,000 with two sureties.

Issues considered

  • Whether the cough syrup seized, containing 0.2% codeine, falls within the definition of contraband under the NDPS Act.
  • Whether procedural deficiencies, including lack of independent seizure witnesses and non‑compliance with Section 105 of the B.N.S.S., affect the bail application.
  • Whether bail can be granted under Section 21(C) of the NDPS Act in the present circumstances.

Legislation cited

Subjects

  • bail
  • NDPS Act
  • codeine concentration
  • contraband
  • procedural lapse
  • seizure
  • schedule H
  • Drugs and Cosmetics Act

Judgment

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                              CRIMINAL MISCELLANEOUS No.24028 of 2026
                      Arising Out of PS. Case No.-6 Year-2026 Thana- SONBERSA District- Sitamarhi
                 ======================================================
                 Vikram S/o Budhiman R/o vill - Bagmati ward no. 2, P.S.- Bagmati, Dist.-
                 Sarlahi (Nepal)

                                                                                   ... ... Petitioner/s
                                                       Versus
                 The State of Bihar

                                                        ... ... Opposite Party/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s     :       Mr. Uday Kumar, Advocate
                 For the Opposite Party/s :       Mr. Lalan Kumar, APP
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
                                       ORAL ORDER

2   01-05-2026                  Heard learned counsel for the petitioner and learned

                   APP for the State.

                                2. The petitioner has prayed for bail in connection

                   with Sonbarsa P.S. Case No. 06 of 2026 registered for the

                   offence punishable under Section 21(C)of the N.D.P.S. Act.

                                3. The case of the prosecution in short is that from a

                   scooty, altogether 7.5 liters of codeine phosphate and

                   triprolidine HCL cough syrup 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 his possession. He is

                   neither the owner nor the driver of the said scooty. Learned

                   counsel for the petitioner has submitted that from perusal of the
Patna High Court CR. MISC. No.24028 of 2026(2) dt.01-05-2026
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          seizure list, it will transpire that the seizure 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 is having no criminal antecedent and

          he is languishing in judicial custody since 06.01. 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

          concentration of not more than 2.5 % in undivided preparations

          and which have been established in therapeutic practice.

                       6. In this case, Codeine Phosphate & Triprolidine

          HCL Cough Syrup has been recovered from a scooty 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.
Patna High Court CR. MISC. No.24028 of 2026(2) dt.01-05-2026
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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

          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 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 Special

          Judge, Sitamarhi in connection with Sonbarsa P.S. Case No. 06

          of 2026.

                       10. Before parting, it is very strange that the cases
            Patna High Court CR. MISC. No.24028 of 2026(2) dt.01-05-2026
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                      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)
durgesh/-

U      T


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