Patna High Court
Deosharan Mahto @ Deo Sharan Kumar MahtoversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The court held that the recovered cough syrups containing codeine at a concentration of 0.2% do not constitute contraband under the NDPS Act, and therefore the petitioner is entitled to bail.
Summary
The petitioner, Deosharan Mahto, sought regular bail in a case under section 21(c) of the NDPS Act after police seized 15 bottles of RTX‑SCEN cough syrup, 13 bottles of WINGS ONEREX cough syrup and 120 tablets of Spasmo Proxyvon Plus, all containing codeine. The petitioner argued that the seizure violated Section 105 of the B.N.S. Act, that the drugs were not in his conscious possession, and that the codeine concentration (≈0.2%) fell below the 2.5% threshold prescribed in Notification S.O. 826(E) 1985, thus exempting them as manufactured drugs. The State contended, relying on the Supreme Court’s decision in Hira Singh v. Union of India, that the entire material, irrespective of toxicity, constituted contraband in commercial quantity. The court examined the statutory definition under Section 2(d) of the NDPS Act and the central government notification, concluding that the seized items did not meet the criteria for contraband. Consequently, the court ordered the petitioner’s release on bail upon furnishing a bond of Rs 10,000 with two sureties, and noted that such cases might be more appropriately dealt with under the Drugs and Cosmetics Act. The judgment also highlighted the frequent misuse of NDPS provisions for low‑concentration codeine cough syrups.
Issues considered
- Whether the seizure of the cough syrups complied with Section 105 of the B.N.S. Act.
- Whether the quantity and concentration of codeine in the seized cough syrups constitute contraband under the NDPS Act.
- Whether the petitioner is entitled to bail pending trial.
Legislation cited
- Bihar Narcotic Substances Act (B.N.S.) — s. 105
- Drugs and Cosmetics Act, 1940
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 21(c), 2(d)
Subjects
- bail
- NDPS Act
- codeine
- contraband
- seizure procedure
- Section 105
- Notification S.O. 826(E)
- Drugs and Cosmetics Act
- commercial quantity
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.28274 of 2026
Arising Out of PS. Case No.-58 Year-2026 Thana- SONBERSA District- Sitamarhi
======================================================
Deosharan Mahto @ Deo Sharan Kumar Mahto S/o Late Vishwanath Mahto
@ Late Vishw Nath Mahto Resident of village - Sonbarsa, P.S - Sonbarsa,
District - Sitamarhi
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Ayush Kumar, Advocate
For the Opposite Party/s : Mr. Satyendra Prasad, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
2 04-05-2026 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
N.D.P.S. Act.
3. The case of the prosecution is that seeing the
police, the petitioner has thrown a bag and from that bag,
altogether, 15 bottles of RTX-SCEN cough syrup containing
codeine each of 100 ml and 13 bottles of WINGS ONEREX
cough syrup containing codeine each of 100 ml were recovered.
It is further alleged that 120 pieces of Spasmo Proxyvon plus
tablets were also recovered.
4. Learned counsel for the petitioner submits that the
petitioner is innocent and has committed no offence. He has
Patna High Court CR. MISC. No.28274 of 2026(2) dt.04-05-2026
2/4
falsely been implicated in this case. Learned counsel for the
petitioner has submitted that while making seizure, Section 105
of B.N.S.S. has not been complied and the seizure list witnesses
are police personnel. Nothing has been recovered from his
conscious possession. It has also been submitted that though the
quantum of the contraband i.e., Spasmo Proxyvon Plus tablets
which has been recovered is more than small quantity but is
much less than commercial quantity. Moreover, he is
languishing in judicial custody since 28.02.2026.
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
Patna High Court CR. MISC. No.28274 of 2026(2) dt.04-05-2026
3/4
therapeutic practice.
6. In this case, RTX-SCEN cough syrup and WINGS
ONEREX cough syrup containing codeine phosphate have been
recovered and the concentration of the codeine in these drugs 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 released on bail in connection with
Patna High Court CR. MISC. No.28274 of 2026(2) dt.04-05-2026
4/4
Sonbarsa P.S. Case No. 58 of 2026 on furnishing bail bond of
Rs.10,000/- (ten thousand) with two sureties of the like amount
each to the satisfaction of learned Court of Special Judge,
Sitamarhi.
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)
Shubham/-
U T
Checking your session…
Lawyer court records for this case
Associated through the court’s case reference.