Patna High Court
Vikram Swarnkar @ Vikram KumarversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The Court granted bail to the petitioner, holding that the seized cough syrup is exempt under the NDPS notification and the procedural lapse warranted relief.
Summary
The petitioner, Vikram Swarnkar, applied for bail in a case registered under Section 30(a) of the Bihar Prohibition and Excise Act for the alleged possession of 84 litres of Wiscuf cough syrup containing codeine. The prosecution alleged that the seized syrup constituted contraband and that the quantity recovered amounted to a commercial quantity. The petitioner contended that he was falsely implicated, that the police failed to comply with Section 105 of the BNSS while preparing the seizure, and that the syrup fell within the exemption provided by Notification No. S.O. 826(E) dated 14‑11‑1985 under the NDPS Act because the codeine concentration was only 0.2%, well below the 2.5% threshold. The State relied on the Supreme Court decision in Hira Singh & Anr. v. Union of India, arguing that any non‑toxic material mixed with contraband is itself contraband and thus the seized amount was commercial. The Court examined the statutory provisions, the exemption notification, and the procedural lapse, and concluded that the exemption applied and the procedural defect warranted relief. Consequently, the Court ordered the petitioner to be released on bail upon furnishing a bail bond of Rs 10,000 with two sureties of equal amount. The bail was granted subject to the satisfaction of the Special Judge (Excise)‑II, Saharsa.
Issues considered
- Whether the cough syrup containing 0.2% codeine falls within the definition of contraband under Section 30(a) of the Bihar Prohibition and Excise Act.
- Whether the exemption under Notification No. S.O. 826(E) dated 14‑11‑1985 under the NDPS Act applies to the seized syrup.
- Whether the failure to comply with Section 105 of the BNSS during seizure affects the bail application.
- Whether the quantity seized constitutes a ‘commercial quantity’ as per the precedent set in Hira Singh & Anr. v. Union of India.
Legislation cited
- Bihar Narcotic Substances Act — s. 105
- Bihar Prohibition and Excise Act — s. 30(a)
- Narcotic Drugs and Psychotropic Substances Act — s. 2(d)
Subjects
- bail
- codeine
- cough syrup
- NDPS exemption
- commercial quantity
- procedural lapse
- Bihar Prohibition and Excise Act
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.32031 of 2026
Arising Out of PS. Case No.-411 Year-2025 Thana- SAUR BAZAR District- Saharsa
======================================================
Vikram Swarnkar @ Vikram Kumar S/o Arvind Swankar @ Kishan Swarnkar
@ Arvind Swarnkar R/o Village - Kanp, Ward no. - 12, P.S. - Saur Bazar,
Dist. - Saharsa, Bihar.
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Aditya Raj, Advocate
For the Opposite Party/s : Mr. Arun Kumar Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
3 24-06-2026 Heard learned counsel for the petitioner and learned
APP for the State.
2. The petitioner has prayed for bail in connection
with Saur Bazar P.S. Case No. 411 of 2025 registered for the
offence punishable under Section 30(a) of the Bihar Prohibition
and Excise Act.
3. The case of the prosecution is that from a straw
heap near Baba Asthan, altogether 84 liters of wiscuf 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. The petitioner has no concern in any way with the alleged
contraband. There is no independent witness of the seizure list.
Patna High Court CR. MISC. No.32031 of 2026(3) dt.24-06-2026
2/3
Police has not complied section 105 of BNSS while preparing
seizure. Moreover, he is languishing in judicial custody since
13.03.2026.
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, wiscuf Cough 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 case of Hira
Patna High Court CR. MISC. No.32031 of 2026(3) dt.24-06-2026
3/3
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 Special
Judge (Excise)-II, Saharsa in connection with Saur Bazar P.S.
Case No. 411 of 2025.
(Ashok Kumar Pandey, J)
Shubham/-
U T
Checking your session…
Lawyer court records for this case
Associated through the court’s case reference.