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Patna High Court

Vikash KumarversusThe State of Bihar

Decided
Disposal
ALLOWED

Holding

The Court held that the seized cough syrup, containing codeine below the 2.5% threshold, is exempt under the central notification and does not constitute contraband under the NDPS Act, warranting bail to the petitioner.

Summary

The petitioner, Vikash Kumar, was arrested in connection with a seizure of 220.3 litres of Wiscorex cough syrup containing 0.2% codeine from a vehicle, and was charged under Sections 8, 21(c) and 22(b) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act. He contended that he was merely the driver, had no knowledge of the consignment, and that the seized product fell within the exemption notified under S.O. 826(E) dated 14.11.1985, which permits codeine concentrations up to 2.5% in manufactured drugs. The State argued, relying on the Supreme Court decision in Hira Singh & Anr. v. Union of India, that any non‑toxic material mixed with contraband renders the entire quantity contraband and thus commercial in nature. The Court examined the applicability of Section 2(d) of the NDPS Act and the relevance of the central notification, concluding that the seized syrup did not constitute contraband under the Act. Consequently, the Court ordered the petitioner to be released on bail upon furnishing a bail bond of Rs 10,000 with two sureties.

Issues considered

  • Whether the cough syrup containing 0.2% codeine falls within the exemption under Notification S.O. 826(E) and is therefore not contraband under the NDPS Act
  • Whether Section 2(d) of the NDPS Act excludes the seized product from the definition of a narcotic drug
  • Whether the Supreme Court precedent in Hira Singh & Anr. v. Union of India applies to render the entire seized quantity as contraband

Legislation cited

Subjects

  • bail
  • NDPS Act
  • codeine concentration
  • contraband
  • central notification
  • schedule H drug
  • misuse of law

Judgment

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                              CRIMINAL MISCELLANEOUS No.24763 of 2026
                      Arising Out of PS. Case No.-18 Year-2026 Thana- GHATHO District- Samastipur
                 ======================================================
                 Vikash Kumar Son of Sri Nagenera Prasad Resident of Village- Nadirganj,
                 P.S.- Bundelganj, District- Nawada

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

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

2   16-04-2026                     Heard learned counsel for the petitioner and learned

                   APP for the State.

                                2. The petitioner has prayed for bail in connection

                   with Ghatho P.S. Case No. 18 of 2026 registered for the offence

                   punishable under Sections 8/21(c) and 22(b) of N.D.P.S. Act.

                                3. The case of the prosecution is that from a car,

                   altogether 220.3 liters of wiscorex 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. He is the driver of the said vehicle. He was unaware of the

                   alleged consignment. Nothing has been recovered from the

                   possession of this petitioner. There is no independent witness of
Patna High Court CR. MISC. No.24763 of 2026(2) dt.16-04-2026
                                            2/4




          the seizure list. Police has not complied section 105 of BNSS

          while preparing seizure. Moreover, the petitioner is languishing

          in judicial custody since 04.02.2026.

                       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, wiscorex cough syrup containing

          codeine phosphate has been recovered from a car 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
Patna High Court CR. MISC. No.24763 of 2026(2) dt.16-04-2026
                                            3/4




          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, Samastipur in connection

          with Ghatho P.S. Case No. 18 of 2026.

                       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)
            Patna High Court CR. MISC. No.24763 of 2026(2) dt.16-04-2026
                                                        4/4




                      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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