Shankar KumarversusThe State of Bihar

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                              CRIMINAL MISCELLANEOUS No.28285 of 2026
                  Arising Out of PS. Case No.-543 Year-2025 Thana- PATNA CITY CHOWK District- Patna
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                 Shankar Kumar, S/o Bhola Paswan, R/o Village- Usfa, PS- Gaurichak, Dist-
                 Patna

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

                                                        ... ... Opposite Party/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s     :      Mr.Tilak Sao, Advocate
                 For the Opposite Party/s :      Mr.Mohammad Sufyan, APP
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
                                       ORAL ORDER

2   06-05-2026                  Heard learned counsel for the petitioner and learned

                   APP for the State.

                                2. The petitioner has prayed for bail in connection

                   with Chowk P.S. Case No.               543 of 2025 registered for the

                   offence punishable under Sections               21(c) and 8A(c) of the

                   N.D.P.S. Act.

                                3. The case of the prosecution in short is that from a

                   vehicle, altogether 480 liters of Wiscodin 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. Nothing has been recovered from his possession. He is

                   neither the owner nor the driver of the said vehicle. Learned
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          counsel for the petitioner has submitted that from perusal of the

          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 seizure. Petitioner is having no criminal antecedent and

          he is languishing in judicial custody since 20.12.2025.

                       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, Wiscodin Cough Syrup has been

          recovered from a vehicle and the concentration of the codeine in

          this drug is approximately 0.2% which is less than 2.5% as
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          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

          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

          Exclusive Spl. (N.D.P.S. Act) Court No.1, Patna in connection

          with Chowk P.S. Case No. 543 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)

lata/-
U        T