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Patna High Court

Rakesh RaiversusThe State of Bihar

Decided
Disposal
ALLOWED

Holding

The Court held that the seized cough syrup does not constitute contraband under the NDPS Act because its codeine concentration is below the statutory limit, and therefore granted bail to the petitioner.

Summary

The petitioner, Rakesh Rai, sought regular bail in an NDPS case (Sec. 21(c)) after 760 litres of Eskuf cough syrup containing 0.2% codeine was seized from a pick‑up van. He contended that he was neither the driver nor the owner, that the seizure was conducted by police officers who were not independent witnesses and violated Section 105 of the Bihar Narcotic Substances Act, and that the syrup, being a manufactured drug with codeine concentration below the 2.5% limit prescribed in Notification S.O. 826(E) 1985, does not fall within the definition of contraband. The State argued that the petitioner had a prior criminal case and relied on the Supreme Court’s decision in Hira Singh v. Union of India, which treats non‑toxic material mixed with contraband as contraband, asserting that the quantity seized was commercial. The Court examined the statutory definition under Sec. 2(d) of the NDPS Act and the central notification, concluding that the seized syrup is exempted and therefore not within the ambit of the NDPS offence. Consequently, the Court granted the petitioner bail on a bond of Rs.10,000 with two sureties.

Issues considered

  • Whether the cough syrup containing 0.2% codeine qualifies as contraband under Sec. 21(c) of the NDPS Act.
  • Whether the seizure complied with the procedural requirements of Section 105 of the Bihar Narcotic Substances Act.
  • Whether the petitioner can be held liable despite not being the driver or owner of the vehicle.
  • Whether the Supreme Court’s ruling in Hira Singh v. Union of India applies to this factual scenario.
  • Whether bail should be granted in view of the petitioner’s alleged antecedents and the nature of the seized material.

Legislation cited

Subjects

  • bail
  • NDPS Act
  • codeine
  • contraband
  • seizure
  • Section 105
  • manufactured drug
  • commercial quantity
  • criminal antecedent

Judgment

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                              CRIMINAL MISCELLANEOUS No.24996 of 2026
                    Arising Out of PS. Case No.-250 Year-2025 Thana- GAIGHAT District- Muzaffarpur
                 ======================================================
                 Rakesh Rai, S/o Jainandan Rai, R/o Villaage- Sakri Balua, P.S.- Turki, Distt.-
                 Muzaffarpur

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

                                                        ... ... Opposite Party/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s     :       Mr. Ranjeet Kumar Singh, Advocate
                 For the Opposite Party/s :       Mr. Ganesh Prasad Singh, 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 regular bail in a case

                   registered for the offence punishable under Section 21(c) of the

                   NDPS Act.

                                3. The case of the prosecution, in short, is that

                   altogether 760 liters of Eskuf Cough Syrup containing codeine

                   was recovered from a Pick-up van.

                                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 neither the driver nor the owner of the said vehicle.

                   Nothing has been recovered from his possession. Learned

                   counsel for the petitioner has submitted that from perusal of the
Patna High Court CR. MISC. No.24996 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 the seizure. It has further been submitted that similarly

          situated co-accused Bhola Rai has been granted bail by this

          Court vide Cr. Misc. No. 11557 of 2026. Moreover, he is

          languishing in judicial custody since 10.10.2025.

                       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, Eskuf cough Syrup has been recovered

          been recovered from a Pick-up Van and the concentration of the
Patna High Court CR. MISC. No.24996 of 2026(2) dt.01-05-2026
                                            3/4




          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 petitioner is having

          criminal antecedent of one case. It has further been 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 petitioners 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. Considering the aforesaid facts and circumstances

          of the case, this court is inclined to enlarge the petitioner on

          bail. The above named petitioner is directed to be released on

          bail in connection with NDPS Case No. 174 of 2025 arising out

          of Gaighat P.S. Case No. 250 of 2025 on furnishing bail bond of

          Rs.10,000/- (ten thousand) with two sureties of the like amount

          each to the satisfaction of learned Special Judge, NDPS Court
             Patna High Court CR. MISC. No.24996 of 2026(2) dt.01-05-2026
                                                         4/4




                       No.-II, Muzaffarpur.

                                    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)

                       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)

lata/-
U        T


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