Patna High Court
VikramversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
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
2/4
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
3/4
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
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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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