Patna High Court
Md. ArifversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The court held that the seized cough syrup does not fall within the NDPS Act’s definition of a narcotic drug and therefore granted bail to the petitioner.
Summary
Md. Arif, a driver, was arrested in connection with an NDPS case after police seized 160 litres of Wiscorex cough syrup containing codeine. The petitioner argued that the syrup, with codeine concentration below 2.5%, is exempted as a manufactured drug under a 1985 government notification and that no seizure was made from his possession. The State contended that, per the Supreme Court’s decision in Hira Singh v. Union of India, any non‑toxic material mixed with contraband makes the entire quantity contraband and therefore commercial. The court examined Section 2(d) of the NDPS Act, noting that the drug itself is not a narcotic drug and that the Central Government’s notification governs its status. Concluding that the seized material does not fall within the NDPS Act’s ambit, the court granted bail to the petitioner on a bond of Rs. 10,000 with two sureties.
Issues considered
- Whether the cough syrup containing codeine (concentration <2.5%) constitutes a contraband under the NDPS Act.
- Whether the petitioner is entitled to bail pending trial.
Legislation cited
- BNSS Act — s. 105
- Narcotic Drugs and Psychotropic Substances Act — s. 21(c), 25, 29, 2(d)
Subjects
- bail
- NDPS Act
- codeine
- cough syrup
- manufactured drug exemption
- Section 105
- contraband
- jurisdiction
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.26044 of 2026
Arising Out of PS. Case No.-265 Year-2025 Thana- KISHANPUR District- Supaul
======================================================
Md. Arif S/O Md. Sultan R/O Vill.- Sonapur Ward No- 11, P.S- Bathnaha,
Dist- Araria.
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Arvind Kumar, Advocate
For the Opposite Party/s : Mr. Nawal Kishore Prasad, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
2 21-04-2026 Heard learned counsel for the petitioner and learned
APP for the State.
2. The petitioner has prayed for bail in connection
with N.D.P.S. Case No. 142 of 2025 arising out of Kishanpur
P.S. Case No. 265 of 2025 registered for the offence punishable
under Sections 21(c), 25 and 29 of the N.D.P.S. Act.
3. The case of the prosecution, in short, is that from
car altogether 160 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 also submits that nothing has been recovered from the
possession of the petitioner. Petitioner is the driver of the said
Patna High Court CR. MISC. No.26044 of 2026(2) dt.21-04-2026
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vehicle. He further submits that the witnesses of the seizure list
are police personnel and the police has not complied with
Section 105 of the BNSS while making the seizure. Moreover, a
statement has been made in para 3 of the petition that petitioner
has no criminal antecedent and he is languishing in judicial
custody since 30.12.2025.
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, cough WISCOREX Cough Syrup
containing codeine has been recovered and the concentration of
the codeine in this drug is less than 2.5% as provided in the
Patna High Court CR. MISC. No.26044 of 2026(2) dt.21-04-2026
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above notification.
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
Sessions Judge, Supaul in connection with N.D.P.S. Case No.
142 of 2025 arising out of Kishanpur P.S. Case No. 265 of 2025.
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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)
Sudhanshu/-
U T
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