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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

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


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