Patna High Court
MANOJ KUMAR MAHTO @ MANOJ KUMARversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The court held that the seized items do not fall within the definition of narcotic drugs under the NDPS Act and the quantity is not commercial, thereby granting bail to the petitioner.
Summary
Manoj Kumar Mahto was arrested under Sections 21, 21(a) and 22 of the NDPS Act after police seized various medicines and codeine‑containing cough syrups from his residence. The petitioner claimed innocence, arguing that the seizure list was not prepared in compliance with Section 105 of the Bihar Narcotic Substances Act and that the quantity seized was far below commercial quantity. He further contended that the codeine concentration (0.2%) fell within the exemption permitted by Notification S.O. 826(E) dated 14‑11‑1985, making the items non‑narcotic. The State relied on the Supreme Court’s decision in Hira Singh v. Union of India, asserting that any non‑toxic material mixed with contraband renders the whole quantity commercial. The Court held that, under Section 2(d) of the NDPS Act, the seized substances did not qualify as narcotic drugs and therefore the case lacked jurisdictional basis, granting the petitioner regular bail on a bond of Rs.10,000 with two sureties.
Issues considered
- Whether the seized medicines and codeine syrups constitute 'narcotic drugs' within the meaning of the NDPS Act.
- Whether the quantity recovered amounts to a 'commercial quantity' under the NDPS Act.
- Whether the seizure list complied with Section 105 of the Bihar Narcotic Substances Act.
- Whether the exemption under Notification S.O. 826(E) applies to the seized codeine preparations.
Legislation cited
- Bihar Narcotic Substances Act — s. 105
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 21, 21(a), 22, 2(d)
Subjects
- bail
- NDPS Act
- narcotic drug definition
- codeine exemption
- commercial quantity
- seizure procedure
- judicial custody
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.28311 of 2026
Arising Out of PS. Case No.-69 Year-2024 Thana- JOGBANI District- Araria
======================================================
MANOJ KUMAR MAHTO @ MANOJ KUMAR S/o RAMJATAN MAHTO
R/o vill - Indra Nagar, ward no. 10 (Tikuliya Basti), P.s.- Jogbani, Distt.-
Araria
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Vishwajeet Singh, Advocate
Mr. Kundan Kumar Singh, Advocate
Mr. Ram Krishna Yadav, Advocate
For the Opposite Party/s : Mr. Anil Prasad Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
2 05-05-2026 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 sections 21, 21(a) 22
of the NDPS Act which was earlier rejected vide order dated
10.07.2024 passed in Cr. Misc. No. 43018 of 2024.
3. The case of the prosecution is that the informant
got information that the petitioner kept medicines and was
indulged in the sale of the same. On this information, he raided
the house of the petitioner and recovered Nitzascan-10 186
tablets, Traispas 64 capsules, Tronscan Plus 60 capsules,
Pyronix spas 48 capsules, Escuf codeine cough syrup 64 bottles
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each of 100 ml, Setodyl Codeine cough syrup 10 bottles each of
100 ml were recovered from a sack which was kept in the house
of the petitioner.
4. Learned counsel for the petitioner submits that the
petitioner is innocent and has committed no offence. Learned
counsel for the petitioner has submitted that nothing has been
recovered from the possession of the petitioner. He has been
falsely implicated in this case. There is no independent witness
of the seizure list rather they are police personnel. Police has not
complied Section 105 of BNSS while preparing the seizure list.
Learned counsel for the petitioner has further submitted that the
quantum of contraband (medicines/capsules) which have been
recovered is much less than commercial quantity. Moreover, the
petitioner is languishing in judicial custody since 30.03.2024.
5. As far as recovery of certain syrups containing
codeine is concerned, in this regard, 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
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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 Syrups containing codeine have
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
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
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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
Jogbani P.S. Case No. 69 of 2024 on furnishing bail bond of
Rs.10,000/- (ten thousand) with two sureties of the like amount
each to the satisfaction of learned D.A.S.J. (Additional Sessions
Judge)-IV, Araria.
(Ashok Kumar Pandey, J)
Shubham/-
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