Patna High Court
Dumdum KumarversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The court held that the recovered codeine syrup, being below the 2.5% concentration threshold, does not constitute contraband under the NDPS Act and therefore granted bail to the petitioner.
Summary
Dumdum Kumar was arrested in an NDPS case after 137.7 litres of codeine cough syrup (0.2% codeine) was seized from a four‑wheeler. The petitioner contended he was neither driver nor owner, that no contraband was found on him, and that the syrup falls under a 1985 government notification exempting preparations containing less than 2.5% codeine. The State relied on the Supreme Court’s decision in Hira Singh v. Union of India, arguing that any non‑toxic material mixed with a contraband makes the whole quantity a commercial contraband. The court examined Section 2(d) of the NDPS Act and the central government’s power to issue notifications, concluding that the seized syrup does not meet the definition of contraband. Accordingly, the court granted bail on a bond of Rs 10,000 with two sureties, noting that such cases might be more appropriately dealt with under the Drugs and Cosmetic Act.
Issues considered
- Whether codeine cough syrup containing 0.2% codeine falls within the definition of contraband under the NDPS Act.
- Whether the petitioner can be held liable for the seized quantity despite not being the driver or owner of the vehicle.
- Whether procedural lapses (absence of seizure list, non‑compliance with Section 105 of BNSS) affect the bail application.
- Whether the jurisdiction of the NDPS Special Court is proper in view of Section 2(d) and the 1985 notification.
Legislation cited
- Bihar Narcotic Substances (BNSS) Act — s. 105
- Narcotic Drugs and Psychotropic Substances (NDPS) Act — s. 21(c), 22(c), 25, 29, 2(d)
Subjects
- bail
- NDPS Act
- codeine
- contraband
- concentration threshold
- government notification
- jurisdiction
- procedural lapse
- Drugs and Cosmetic Act
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.27338 of 2026
Arising Out of PS. Case No.-182 Year-2025 Thana- BHAPTIAHI District- Supaul
======================================================
Dumdum Kumar, S/o Rajendra Prasad Yadav @ Rajendra Yadav, R/o -
Mahamadpur Bhagdewa, P.S - Balwahat, District - Saharsa
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Satish Kumar Singh, Advocate
For the Opposite Party/s : Mr. Ahmad Ali, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
2 23-04-2026 Heard learned counsel for the petitioner and learned
APP for the State.
2. The petitioner has prayed for bail in connection
with NDPS (Spl.) Case No. 88 of 2025 registered for the offence
punishable under Sections 21(c), 22(c), 25 and 29 of the
N.D.P.S. Act.
3. The case of the prosecution, is that, from a four
wheeler vehicle, altogether 137.7 liters of Codeine 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. As per the case of the prosecution, the petitioner has fled
away from the spot and was apprehended. It is further submitted
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that from possession of this petitioner nothing has been
recovered. The petitioner has no concern in any way with the
alleged contraband of vehicle. Petitioner is neither driver nor
owner of the vehicle from which recovery was made. There is
no independent witness of the seizure list. Police has not
complied section 105 of BNSS while preparing seizure. A
statement has been made in para-3 of this petition that the
petitioner has four criminal antecedent in which he is on bail
and he is languishing in judicial custody since 22.08.2025.
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
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therapeutic practice.
6. In this case, Codeine Cough syrup containing
codeine phosphate has been recovered from the truck 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
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
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of the like amount each to the satisfaction of the learned
Additional Sessions Judge III-cum- Special Judge, NDPS,
Supaul, in connection with NDPS Special Case No. 88 of 2025
arising out of Bhaptiyahi P.S. Case No. 182 of 2025.
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)
khushbu/-
U
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