Patna High Court
Md. AslamversusThe State of Bihar
- Decided
- Disposal
- BAIL GRANTED
- Bench
- ANSUL
Holding
The court held that because the codeine concentration is below 2.5 % and the product is a Schedule H drug, it does not constitute contraband under the NDPS Act, and therefore anticipatory bail was granted.
Summary
The petitioner, Md Aslam, sought anticipatory bail in connection with a case alleging possession of 2,175 bottles of 100 ml cough syrup containing codeine phosphate and triprolidine hydrochloride, alleged to be offences under Section 21(c) of the NDPS Act. He contended that the syrup falls within the exemption under Notification S.O. 826(E) dated 14‑11‑1985 because the codeine concentration is below 2.5 % and the product is a Schedule H drug, thus not contraband. The State opposed the bail, arguing the NDPS provisions apply. The Court relied on its earlier decision in Cr. Misc. No. 20517/2026, which held that such low‑concentration codeine preparations are not covered by the NDPS Act and should be dealt with under the Drugs and Cosmetics Act. Consequently, the Court granted anticipatory bail, directing the petitioner to furnish a bail bond of Rs 10,000 with two sureties, subject to the conditions of Section 438(2) CrPC and Section 482(2) of the Bharatiya Nagarik Suraksha Sanhita.
Issues considered
- Whether the possession of cough syrup containing codeine at a concentration below 2.5 % falls within the ambit of Section 21(c) of the NDPS Act.
- Whether anticipatory bail is appropriate under Section 438 of the Code of Criminal Procedure and Section 482 of the Bharatiya Nagarik Suraksha Sanhita.
- Whether the matter should be prosecuted under the Drugs and Cosmetics Act instead of the NDPS Act.
Legislation cited
- Bharatiya Nagarik Suraksha Sanhita — s. 482(2)
- Code of Criminal Procedure — s. 438(2)
- Drugs and Cosmetics Act
- Narcotic Drugs and Psychotropic Substances Act — s. 21(c)
Subjects
- anticipatory bail
- NDPS Act
- codeine concentration
- Schedule H
- Drugs and Cosmetics Act
- contraband
- criminal procedure
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.28746 of 2026
Arising Out of PS. Case No.-55 Year-2026 Thana- ARARIA District- Araria
======================================================
Md. Aslam Son of Jafar Ahamad Resident of Ward No 13, kali Bazar, Chamra
Godam, PS- Araria, District- Araria
... ... Petitioner/s
Versus
The State of Bihar bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr.Dheeraj Kumar, Adv.
For the Opposite Party/s : Mr.Ram Sevak Choudhary, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ANSUL
ORAL ORDER
3 13-05-2026 Heard the learned counsel for the petitioner and
learned Additional Public Prosecutor for the State.
2. The petitioner is apprehending his arrest in
connection with Araia P.S. Case No. 55 of 2026 registered for
the offences punishable under Sections 21(c) of the N.D.P.S.
Act.
3. The allegation is that 2175 bottles 100ml each of
codeine phosphate and triprolidine hydrochloride cough syrup
was recovered.
4. Learned counsel for the petitioner submits that he is
owner of the vehicle in question. The petitioner has got six
criminal antecedent and he is on bail on all the cases.
5. Learned counsel for the petitioner submitted that
under Notification S.O. 826(E) dated 14/11/1985, preparation
Patna High Court CR. MISC. No.28746 of 2026(3) dt.13-05-2026
2/3
are exempted as Manufactured Drugs provided the preparation
contained the Narcotics Drugs to the extent permitted in respect
of codeine under Entry No. 35. Codeine and Ethyle Morphine
and their salts including dionine all dilution and preparation are
considered to be manufactured drugs except those which are
compounded with one or more other ingredients and containing
not more that 100 ml. of the drugs per dose unit and with the
concentration of not more than 2.5 percent in undivided
preparations and which have been established in therapeutic
practice. 5. Learned APP for the State has vehemently opposed
the prayer for anticipatory bail of the petitioner.
6. Recently the Hon'ble Court while dealing these
matters in Cr. Misc. No. 20517 of 2026 held that in view of
notification of the Central Govt, as stated above concentration
of codeine being less than 2.5 percent, 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 must be a licensee one. The Hon'ble
Court has held that such type of cases should be filed under
Drugs and Cosmetics Act as it is only the violation of Drugs and
Cosmetics Act. Thus, this court is inclined to grant anticipatory
bail to the petitioner.
Patna High Court CR. MISC. No.28746 of 2026(3) dt.13-05-2026
3/3
7. Let the petitioner, above named, in the event of
his/her arrest or surrender before the Court below within a
period of thirty days from the date of receipt of the order, be
released on bail on furnishing bail bond of Rs. 10,000/- (Ten
Thousand) with two sureties of the like amount each to the
satisfaction of the learned Principal District & Sessions Judge,
Araria in connection with Araia P.S. Case No. 55 of 2026,
subject to the conditions as laid down under Section 438(2) of
the Code of Criminal Procedure / Section 482(2) of the
Bharatiya Nagarik Suraksha Sanhita.
8. It is made clear that any observation made herein is
prima facie in nature and limited solely for the purpose of
adjudication of the present bail application. Such observations
shall not be construed as an expression on the merits of the case
and shall not influence the trial or any other proceedings in any
manner.
(Ansul, J)
abhishekkr/-
U T
Checking your session…
Lawyer court records for this case
Associated through the court’s case reference.