Md. NomanversusThe State of Bihar

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                              CRIMINAL MISCELLANEOUS No.31687 of 2026
                        Arising Out of PS. Case No.-105 Year-2026 Thana- AMAUR District- Purnia
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                 Md. Noman S/o- Gulam Mustafa Resident of Maitra Bishnupur, W.NO-2, P.S-
                 Amour Dist- Purnea
                                                                          ... ... Petitioner/s
                                               Versus
                 The State of Bihar
                                                                   ... ... Opposite Party/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s     :       Mr. Amit Kumar Anand, Advocate
                 For the Opposite Party/s :       Mr. Ganesh Prasad Singh, APP
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
                                       ORAL ORDER

2   12-05-2026                  Heard learned counsel for the petitioner and learned

                   APP for the State.

                                2. The petitioner has prayed for bail in connection

                   with Amour P.S. Case No.105 of 2026 registered for the offence

                   punishable under Sections 8(c) and 21(b) of the NDPS Act.

                                3. The case of the prosecution, in short, is that from

                   the bike of this petitioner, altogether 55 bottles each of 100 ml

                   of Triprolidine Hydrochloride & Codeine Phosphate Syrup

                   containing codeine was recovered.

                                4. Learned counsel appearing on behalf of the

                   petitioner has submitted that nothing has been recovered from

                   the possession of this petitioner and the witnesses of the seizure

                   list are police personnel and police have not complied Section

                   105 of the BNSS while making seizure. It has further been

                   submitted that the petitioner is having no criminal antecedent
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          and he is in judicial custody since 03.03.2026.

                       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, Triprolidine Hydrochloride & Codeine

          Phosphate Syrup containing codeine phosphate has been

          recovered 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
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          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 Special Judge (NDPS), Purnea in connection with Amour P.S.

          Case No. 105 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
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                      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)
durgesh/-

U      T