Patna High Court
Mona Mandal @ Mohan KumarversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The Court held that the seized cough syrups, being below the 2.5% codeine threshold prescribed in the exemption notification, do not constitute contraband under the NDPS Act and therefore granted bail to the petitioner.
Summary
The petitioner sought bail in a case registered under Sections 21 and 22 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act for possession of cough syrups containing low concentrations of codeine. The prosecution alleged that 23 bottles of Linctus and RJT‑SCEN cough syrup, recovered from a hut, constituted contraband in commercial quantity. The petitioner argued that the seized items were not in his possession, that the seizure was conducted by police witnesses without following Section 105 of the Bihar Narcotic Substances Act, and that the codeine concentration (0.3% and 0.2%) fell within the exemption notified under S.O. 826(E) of 1985, thus not qualifying as narcotic drug. The State relied on Supreme Court precedent in Hira Singh v. Union of India, contending that any non‑toxic material mixed with contraband renders the whole quantity contraband. The Court examined the statutory provisions, the exemption notification, and the precedent, and concluded that the seized syrups did not amount to contraband under the NDPS Act, granting the petitioner bail on a bond of Rs.10,000 with two sureties.
Issues considered
- Whether cough syrups containing codeine at concentrations of 0.3% and 0.2% fall within the definition of narcotic drug under the NDPS Act.
- Whether the seizure complied with Section 105 of the Bihar Narcotic Substances Act and the requirements of the NDPS Act.
- Whether the quantity recovered constitutes a 'commercial quantity' of contraband as per Hira Singh v. Union of India.
- Whether bail should be granted to the petitioner under Sections 21 and 22 of the NDPS Act.
Legislation cited
- Bihar Narcotic Substances Act — s. 105
- Drugs and Cosmetic Act
- Narcotic Drugs and Psychotropic Substances Act — s. 21, 22, 2(d)
Subjects
- bail
- NDPS Act
- codeine
- contraband
- exemption notification
- seizure procedure
- schedule H
- Drugs and Cosmetic Act
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.31817 of 2026
Arising Out of PS. Case No.-88 Year-2025 Thana- Lalmatia District- Bhagalpur
======================================================
Mona Mandal @ Mohan Kumar, S/O Luchho Mandal @ Lucho Mandal,
Resident of Village- Mohanpur, 193, MTN Ghosh Road, Mohanpur, P.S.-
Lalmatiya, District- Bhagalpur
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr.Ashutosh Kumar, Advocate
For the Opposite Party/s : Mr.Ajit Kumar, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
2 13-05-2026 Heard learned counsel for the petitioner and learned
APP for the State.
2. The petitioner has prayed for bail in connection
with Lalmatiya P.S. Case No. 88 of 2025 registered for the
offence punishable under Sections 21 and 22 of the N.D.P.S.
Act.
3. The case of the prosecution, in short, is that from a
hut, altogether 23 bottles 100 ml each of Linctus and RJT-SCEN
Cough Syrup containing codeine were 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 his possession. Learned
Patna High Court CR. MISC. No.31817 of 2026(2) dt.13-05-2026
2/4
counsel for the petitioner has 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 08.02.2026.
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.
6. In this case, Linctus and RJT-SCEN Cough Syrup
have been recovered from a hut and the concentration of the
codeine in these drugs is approximately 0.3% and 0.2%
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respectively 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
bond of Rs. 10,000/- (Rs. ten thousand only) with two sureties
of the like amount each to the satisfaction of the learned
Principal Sessions Judge, Bhagalpur in connection with
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4/4
Lalmatiya P.S. Case No. 88 of 2025.
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
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)
lata/-
U T
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