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Patna High Court

JAY KRISHNA KUMAR @ JAI KRISHNA KUMARversusThe State of Bihar

Decided
Disposal
DISMISSED

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

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
Patna High Court CR. MISC. No. 29462 of 2026(2) dt.11-05-2026
                                            2/4




                                  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
Patna High Court CR. MISC. No. 29462 of 2026(2) dt.11-05-2026
                                            3/4




                                  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.
            Patna High Court CR. MISC. No. 29462 of 2026(2) dt.11-05-2026
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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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