Patna High Court
Vikash KumarversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
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
- Bihar Narcotic Substances Act — s. 105
- Narcotic Drugs and Psychotropic Substances Act — s. 2, 21, 22, 8
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
Checking your session…