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Patna High Court

Vikram Swarnkar @ Vikram KumarversusThe State of Bihar

Decided
Disposal
ALLOWED

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

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


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