Patna High Court
Dilip KumarversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The court held that the cough syrup does not qualify as contraband under the NDPS Act and granted bail to the petitioners.
Summary
The petitioners, Dilip Kumar and Abhishek Kumar, were arrested in connection with a case under Section 21(c) of the NDPS Act after 752 bottles of Wiscorex cough syrup containing 0.2% codeine were seized from a car they were merely passengers in. They contended that the syrup, being a manufactured drug with codeine concentration below the 2.5% threshold prescribed in Notification S.O. 826(E), does not constitute contraband and that the seizure violated procedural requirements under Section 105 of the Bihar Narcotic Substances Act. The State relied on the Supreme Court decision in Hira Singh v. Union of India, arguing that any non‑toxic material mixed with contraband renders the whole quantity contraband. The Court examined the statutory definition under Section 2(d) of the NDPS Act and the relevant notification, concluding that the seized syrup does not fall within the ambit of the NDPS Act. Consequently, the Court ordered the petitioners to be released on bail upon furnishing a bond of Rs. 10,000 with sureties.
Issues considered
- Whether cough syrup containing codeine at 0.2% concentration constitutes contraband under the NDPS Act for prosecution under Section 21(c).
- Whether the procedural requirements for seizure under Section 105 of the Bihar Narcotic Substances Act were complied with.
- Whether the petitioners are entitled to bail in view of the alleged possession.
Legislation cited
- Bihar Narcotic Substances Act — s. 105
- Drugs and Cosmetic Act
- Narcotic Drugs and Psychotropic Substances Act — s. 21(c), 2(d)
Subjects
- bail
- NDPS Act
- codeine
- cough syrup
- contraband
- manufactured drug
- Section 21(c)
- Section 2(d)
- notification
- procedural lapse
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.29234 of 2026
Arising Out of PS. Case No.-16 Year-2026 Thana- Chakia District- Begusarai
======================================================
1. Dilip Kumar, Son of Sikander Yadav @ Sakinder Yadav, Resident of Village
-Shahpur, PS -Sonvarsha Raj, District -Saharasa, Bihar
2. Abhishek Kumar Son of Pawan Kumar @ Pawan Kumar Yadav, Resident of
Village -Shahpur, PS -Sonvarsha Raj, District -Saharasa, Bihar
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr.Aditya Raj, Advocate
For the Opposite Party/s : Mr.Shailendra Kumar, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
2 05-05-2026 Heard learned counsel for the petitioners and learned
APP for the State.
2. The petitioners have prayed for bail in connection
with Chakia P.S. Case No. 16 of 2026 registered for the offence
punishable under Section 21(c) of the N.D.P.S. Act.
3. The case of the prosecution, in short, is that from a
car, 752 bottles (100 ml each) of Wiscorex Cough Syrup
containing codeine were recovered.
4. Learned counsel appearing on behalf of the
petitioners has submitted that petitioners are innocent and have
committed no offence. They have been falsely implicated in this
case. The car does not belong to the petitioners. They were
Patna High Court CR. MISC. No.29234 of 2026(2) dt.05-05-2026
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merely passengers in the car. Nothing has been recovered from
their possession. Learned counsel for the petitioners 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 no.1 is having no criminal antecedent and petitioner
no. 2 is having one criminal antecedent in which he is on bail.
They are languishing in judicial custody since 02.03.2026.
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.
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6. In this case, Wiscorex Cough Syrup has been
recovered from a car and the concentration of the codeine in this
drug 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
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 petitioners on bail. The above named
petitioners are directed to be enlarged on bail on furnishing bail
bond of Rs. 10,000/- (Rs. ten thousand only) each with two
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sureties of the like amount each to the satisfaction of the learned
Principal Sessions Judge (NDPS), Begusarai in connection with
Chakia P.S. Case No. 16 of 2026.
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
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