Kanhai MahtoversusThe State of Bihar

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                              CRIMINAL MISCELLANEOUS No.29320 of 2026
                      Arising Out of PS. Case No.-32 Year-2026 Thana- BHAPTIAHI District- Supaul
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                 Kanhai Mahto S/O Hari Mahto R/O Arya Kumar Road, Machhua Toli,
                 Santoshi Mata Mandir, Ward No. 42, P.S- Kadamkuan, Distt.- Patna.
                                                                           ... ... Petitioner/s
                                                  Versus
                 The State of Bihar
                                                                    ... ... Opposite Party/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s     :       Mr. N.K. Agarwal, Sr. Advocate
                                                  Mr. Kumar Rajdeep, Advocate
                 For the Opposite Party/s :       Mrs. Pushpa Sinha, 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 bail in connection

                   with Bhaptiyahi P.S. Case No. 32 of 2026 registered for the

                   offence punishable under Sections 21(c), 25 and 29 of the

                   N.D.P.S. Act.

                                 3. The case of the prosecution is that from a vehicle,

                   altogether 168 liters of Wiscof 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 the possession of this

                   petitioner. The petitioner has no concern in any way with the
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          alleged contraband. There is no independent witness of the

          seizure list. Police has not complied section 105 of BNSS while

          preparing seizure. A statement has been made in para-3 of this

          petition that the petitioner has got no criminal antecedent and he

          is languishing in judicial custody since 07.02.2026.

                       5. Learned counsel for the petitioner has further

          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, wiscof Cough syrup containing codeine

          phosphate has been recovered from a vehicle and the

          concentration of the codeine in this drug is approximately 0.2%
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          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 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 Court

          of    Sessions      Judge-cum-Special           Judge   (NDPS),   Supaul

          connection with Bhaptiyahi P.S. Case No. 32 of 2026.

                       10. Before parting, it is very strange that the cases
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                      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)
Shubham/-

U     T