Lalmohan KumarversusThe State of Bihar

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                              CRIMINAL MISCELLANEOUS No.31864 of 2026
                       Arising Out of PS. Case No.-43 Year-2026 Thana- Excise P.S. District- Saharsa
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                 Lalmohan Kumar S/o Satyanarayan Choudhary R/o Village - Harnichak,
                 Mahil Tola, P.O - Anishabad, P.S - Phulwarisharif, District - Patna

                                                                                      ... ... Petitioner/s
                                                         Versus
                 The State of Bihar

                                                        ... ... Opposite Party/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s     :         Mr. Pankaj Kumar Singh, Advocate
                 For the Opposite Party/s :         Ms. Suman Kumari Singh, APP
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
                                       ORAL ORDER

3   22-06-2026                  Heard learned counsel for the petitioner and learned

                   APP for the State.

                                2. The petitioner has prayed for bail registered for the

                   offence punishable under Section 30(a) of the Bihar Prohibition

                   and Excise Act.

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

                   altogether 90 liters of Wiscof cough syrup containing codeine

                   was recovered from an Innova car.

                                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. He also submits that nothing has been recovered from the

                   possession of the petitioner. The witnesses of the seizure list are

                   police personnel and the police has not complied with Section
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          105 of the BNSS while making the seizure. He further submits

          that the petitioner is merely a driver and he was having no

          knowledge regarding the said consignment kept the said car.

          Moreover, a statement has been made in para 3 of the petition

          that petitioner has no criminal antecedent and he is languishing

          in judicial custody since 25.01.2026.

                       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, Wiscof cough syrup has been
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          recovered from the possession of the petitioner and the

          concentration of the codeine in this drug 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. 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
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                     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.

                                  10. 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

                     Exclusive Special Judge Excise-I, Saharsa connection with

                     Prohibition Saharsa Excise P.S. Case No. 43 of 2026.


                                            (Ashok Kumar Pandey, J)
Sudhanshu/-

U      T