Patna High Court
Rakesh RaiversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
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
- Bihar Narcotic Substances Act — s. 105
- Drugs and Cosmetics Act
- Narcotic Drugs and Psychotropic Substances Act — s. 21(c), 2(d)
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
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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 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
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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
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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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