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Patna High Court

Mona Mandal @ Mohan KumarversusThe State of Bihar

Decided
Disposal
ALLOWED

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

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%
Patna High Court CR. MISC. No.31817 of 2026(2) dt.13-05-2026
                                            3/4




          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
             Patna High Court CR. MISC. No.31817 of 2026(2) dt.13-05-2026
                                                         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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