Patna High Court
Pintu Kumar @ Pintu YadavversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The Court held that the petitioner is entitled to bail because the codeine concentration is exempted under the NDPS notification, the product is not a narcotic drug under Section 2(d), and procedural deficiencies in the seizure undermine the prosecution's case.
Summary
The petitioner, Pintu Kumar, was arrested in connection with a case under Sections 30(a) and 41 of the Bihar Prohibition and Excise Act after 107.3 litres of Wiscof cough syrup containing codeine were seized from a car. He contended that he was merely a co‑passenger, not the driver or owner, and that nothing was recovered from his personal possession. He relied on Notification S.O. 826(E) dated 14‑11‑1985 under the NDPS Act, which exempts preparations containing codeine up to 2.5% concentration; the seized syrup contained only about 0.2% codeine. The State argued, citing Hira Singh v. Union of India, that the entire mixture constitutes contraband and that the quantity is commercial. The Court noted that under Section 2(d) of the NDPS Act the product is not a narcotic drug, that procedural lapses existed in the seizure, and consequently granted bail on a bond of Rs.10,000 with two sureties.
Issues considered
- Whether the seizure and charge under the Bihar Prohibition and Excise Act are valid given the codeine concentration falls within the NDPS exemption.
- Whether the petitioner, as a co‑passenger and not the driver/owner, can be held liable for the seized contraband.
- Whether the quantity seized constitutes a 'commercial quantity' as per the Supreme Court precedent in Hira Singh v. Union of India.
- Whether the alleged non‑compliance with Section 105 of the B.N.S.S. affects the petitioner's right to bail.
Legislation cited
- Bihar Prohibition and Excise Act — s. 30(a), 41
- B.N.S.S. — s. 105
- Narcotic Drugs and Psychotropic Substances Act — s. 2(d)
Subjects
- bail
- codeine
- NDPS Act
- exemption
- Bihar Prohibition and Excise Act
- seizure procedure
- commercial quantity
- procedural lapse
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.30179 of 2026
Arising Out of PS. Case No.-20 Year-2026 Thana- Banma Itahari District- Saharsa
======================================================
Pintu Kumar @ Pintu Yadav S/o- Sri Prakash Yadav R/v - Dhab, Ward No.09,
P.S - Simri Bakhtiyarpur, District - Saharsa
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Mritunjay Kumar, Advocate
For the Opposite Party/s : Mr. Madan Kumar, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
2 22-06-2026 Heard learned counsel for the petitioner and learned
APP for the State.
2. The petitioner has prayed for bail in connection
with Banma Ithari P.S. Case No. 20 of 2026 registered for the
offence punishable under Sections 30(a) and 41 of Bihar
Prohibition and Excise Act.
3. The case of the prosecution in short is that from a
car, altogether 107.3 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. Leaned counsel for the petitioner has submitted that
petitioner is neither the driver nor the owner of the said car. He
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is merely co-passenger in that car. Nothing has been recovered
from his possession. It has further been 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 is
having no criminal antecedent and he is languishing in judicial
custody since 03.02.2026.
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, Wiscof Cough Syrup has been
recovered from a car and the concentration of the codeine in
this drugs 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 petitioner on bail. The above named
petitioner is directed to be enlarged on bail on furnishing bail
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bond of Rs. 10,000/- (Rs. ten thousand only) with two sureties
of the like amount each to the satisfaction of the learned
Exclusive Special (Excise) Judge-I, Saharsa in connection with
Banma Ithari P.S. Case No. 20 of 2026.
(Ashok Kumar Pandey, J)
lata/-
U T
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