Patna High Court
JAY KRISHNA KUMAR @ JAI KRISHNA KUMARversusThe State of Bihar
- Decided
- Disposal
- DISMISSED
- Bench
- SANDEEP KUMAR
Holding
The court held that the presence of a commercial quantity of narcotic substance and the likelihood of further offences satisfy the conditions to deny bail under Section 37 of the NDPS Act.
Summary
Jay Krishna Kumar was arrested after police recovered 55 litres of codeine‑containing cough syrup from his residence, alleged to be a commercial quantity of a narcotic. The petitioner applied for regular bail for the third time, claiming innocence, lack of conscious possession, and clean antecedents. The State opposed, contending that the seized quantity is commercial, that the offence falls under the NDPS Act and the Bihar Excise Prohibition Amendment Act, and that the petitioner lacks any lawful authority to possess the drugs. The court examined the bail criteria under Section 37 of the NDPS Act, noting that reasonable grounds existed to believe the petitioner was guilty and that he might commit further offences if released. Relying on Supreme Court precedents in Hira Singh v. Union of India and Narcotics Control Bureau v. Mohit Aggarwal, the court held that the presence of a commercial quantity and the seriousness of the offence preclude bail. Consequently, the bail application was dismissed, with a direction to the Superintendent of Police to ensure witness attendance and a provision for the petitioner to renew the bail plea if trial delays exceed one year.
Issues considered
- What are the criteria under Section 37 of the NDPS Act for granting bail in cases involving commercial quantities of narcotics?
- Does the recovery of 55 litres of codeine‑containing syrup constitute a 'commercial quantity' under the NDPS Act and the Bihar Excise Prohibition Amendment Act?
- Is the petitioner entitled to bail despite the alleged lack of conscious possession and clean criminal record?
Legislation cited
- Bihar Excise Prohibition Amendment Act, 2018 — s. 30(a)(F)
- Drugs and Cosmetics Act
- Narcotic Drugs and Psychotropic Substances (NDPS) Act — s. 37, 8
Subjects
- bail
- NDPS Act
- commercial quantity
- codeine
- excise prohibition
- court discretion
- drug possession
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No. 29462 of 2026
Arising Out of PS. Case No.-342 Year-2024 Thana- Excise P.S. District- Khagaria
======================================================
Jay Krishna Kumar @ Jai Krishna Kumar S/O Ashok Singh R/o vill-
Pansalwa, ward no. 11, P.S.- Beldour, Distt.- Khagaria
... ... Petitioner
Versus
The State of Bihar
... ... Opposite Party
======================================================
Appearance :
For the Petitioner/s : Mr. Diwakar Prasad Singh, Adv.
For the State : Mr. Jharkhandi Upadhyay, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
ORAL ORDER
2 11-05-2026 Heard learned counsel for the petitioner and learned
A.P.P. for the State.
2. This is the 3rd attempt of the petitioner seeking bail
in connection with N.D.P.S. Case No. 09 of 2025 (Special Case
No. 13 of 2025) corresponding to Excise P.S. Case No. 342 of
2024 arising out of Excise Case No. 1423C3 of 2024 registered
for the offence under Section 30(a)(F) PF of the Bihar Excise
Prohibition Amendment Act, 2018.
3. Earlier, the bail application of the petitioner was
rejected on 18.03.2025 in Cr. Misc. No. 8612 of 2025 which
reads as follows:-
“Heard learned counsel for the petitioner
and learned A.P.P for the State.
2. The petitioner has preferred this
application for grant of regular bail in
connection with Khagaria Excise P.S. Case No.
342/2024 (Excise Case No. 1423C3/2024) dated
17.11.2024 registered for the offences
punishable u/s 30(a) of the Bihar Prohibition
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and Excise Act.
3. As per the prosecution case, total 55
litres of Codeine Phosphate & Triprolidine HCL
syrup, RTX-scen cough syrup were recovered
from the house of the petitioner.
4. Learned counsel for the petitioner has
submitted that the petitioner is innocent and has
falsely been implicated in this case. The
prosecution has been lodged against the
petitioner under section 30(a) of the Bihar
Prohibition and Excise Act not the N.D.P.S. Act.
The petitioner has no concern with the alleged
recovery. Nothing has been recovered from the
conscious possession of the petitioner. The
petitioner has clean criminal antecedents as
stated in para 3 of the bail petition. The
petitioner is in custody since 17.11.2024.
5. Learned A.P.P. for the State has
vehemently opposed the bail petition of the
petitioner by submitting that the seized
contraband is commercial quantity i.e. 55 litres
of Codeine Cough Syrup and the petitioner has
no any valid authorization for keeping the same.
It is further submitted that this case comes
under the N.D.P.S. Act and the Drugs and
Cosmetics Act as per section 80 of the N.D.P.S.
Act. Learned APP for the State has placed
reliance on the judgment in the case of Hira
Singh and Anr. Vs. Union of India and Anr,
(2020)20 Supreme Court Cases 272 of Hon’ble
Apex Court has held that “weight of entire
materials/ mixture along with neutral material
is to be considered for ascertainment of whether
the quantity is “small quantity” or “commercial
quantity”. It is further submitted that codeine is
mentioned in the Entry No. 28 of the N.D.P.S.
Act. The act of the petitioner amounts to clear
violation of section 8 of the N.D.P.S. Act as it
clearly prohibits possession of narcotic
substance except medical and scientific
purposes.
6. As per Section 37 of the N.D.P.S. Act,
the two conditions are that the Court should be
satisfied with :- (i) There are reasonable
grounds for believing that the accused is not
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guilty of such offence; and (ii) He is not likely to
commit any offence while on bail.
7. If either of these two conditions is not
satisfied, the bar operates and the accused
cannot be released on bail. The Court is of the
opinion that the parameters of bail available
under Section 37 of the Act have not satisfied in
the facts of the instant case. The Hon'ble
Supreme Court in the case of Narcotics Control
Bureau v. Mohit Aggarwal 2022 SCC OnLine
SC 891 has held that “The length of the period
of his custody or the fact that the charge-sheet
has been filed and the trial has commenced are
by themselves not considerations that can be
treated as persuasive grounds for granting relief
to the respondent under Section 37 of the
N.D.P.S. Act.”
8. Considering the aforesaid facts and
circumstances of the case as well as the
recovery of commercial quantity from the
conscious possession of the petitioner, this
Court is not inclined to grant bail to the
petitioner and the same is rejected in connection
with Khagaria Excise P.S. Case No. 342/2024
(Excise Case No. 1423C3/2024), pending in the
Court of learned Special Excise Judge II,
Khagaria.
9. The application stands rejected.”
4. As per the prosecution case, total 55 litres of
Codeine Phosphate & Triprolidine HCL Syrup, RTX-seen
Cough Syrup were recovered from the kitchen room of the
house of the petitioner.
5. Learned counsel for the petitioner further submits
that there is no progress in the case after framing of charge on
10.06.2025 and no witness has been examined.
6. Learned A.P.P. for the State opposes the prayer for
bail.
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7. Considering the huge recovery, I am not inclined to
grant bail to the petitioner.
8. Accordingly, this application is dismissed.
9. The Superintendent of Police, Khagaria is directed
to ensure the appearance of the witnesses in the trial.
10. Let a copy of this order be communicated to the
Superintendent of Police, Khagaria through FAX and e-mail
forthwith for its compliance.
11. If the trial is not concluded within one year
because of the delay caused by the prosecution, the petitioner
may renew his prayer for bail.
(Sandeep Kumar, J)
sadique/-
U
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