Patna High Court

Ravi Kumar Prajapati @ Ravi PrajapativersusThe State of Bihar

Decided: 23 June 2026
Disposal: BAIL REJECTED
Bench: JITENDRA KUMAR

Holding

The High Court held that the petitioner is not entitled to anticipatory bail because the seized codeine syrup constitutes a commercial quantity of a narcotic drug under the ND PS Act, and the statutory conditions for bail under Section 37 are not satisfied.

Summary

The petitioner, Ravi Kumar Prajapati, sought anticipatory bail under Section 482 of the Bihar Narcotic Substances Act, 2023, after a truck owned by him was seized with 3,200 bottles of Eskuf Codeine Syrup and other items, leading to charges under the Drugs and Cosmetics Act, 2008 and the ND PS Act, 1985. The Sessions Court had rejected his bail, noting that the driver’s confessional statement implicated the petitioner as the owner who handed over the loaded truck. The petitioner argued he was merely a vehicle owner, the seized syrup was an essential drug with less than 2.5% codeine, and the search violated Section 42 of the ND PS Act. The High Court examined statutory provisions, including Sections 8, 9, 21, 22, 37, 42 and 80 of the ND PS Act, and held that the quantity seized constituted a commercial quantity, invoking the stringent bail conditions of Section 37. Relying on precedents that emphasize the rule‑against‑bail in ND PS cases and the need for the Public Prosecutor’s participation, the Court found no reasonable grounds to believe the petitioner was not guilty nor that he would not commit further offences. Consequently, the anticipatory bail petition was dismissed.

Issues considered

The applicability of Section 37 of the ND PS Act to the grant of anticipatory bail in cases involving commercial quantity of codeine‑containing cough syrup.
Whether the seized codeine syrup, containing less than 2.5% codeine, falls within the definition of a narcotic drug under the ND PS Act or is merely an essential drug governed by the Drugs and Cosmetics Act.
Whether the seizure complied with the mandatory provisions of Section 42 of the ND PS Act.
Whether the petitioner, as the owner of the vehicle, can be held liable for possession of the contraband without a licence or permit.

Legislation cited

Drugs and Cosmetics Act, 2008 — s. 27(b)(2), 27(d), 28
Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 21, 22, 2(xi), 2(xxiii), 37, 42, 8, 80, 9

Subjects

anticipatory bail
NDPS Act
codeine syrup
commercial quantity
Section 37 bail criteria
Section 42 compliance
essential narcotic drug
possession without licence
Drugs and Cosmetics Act

Judgment

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.32844 of 2025
Arising Out of PS. Case No.-316 Year-2023 Thana- KUCHAIKOTE District- Gopalganj
======================================================
Ravi Kumar Prajapati @ Ravi Prajapati S/O Ram Avtar, R/O 128, Bhamroli
Shahpur, Kakori, P.S- Kakori, Distt.- Luknow (Uttar Pradesh).

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

... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Brajesh Kumar Singh @ Brajesh Singh, Advocate
For the State : Mr. Upendra Kumar, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE JITENDRA KUMAR
ORAL JUDGMENT
Date : 23-06-2026

Introduction

The present Criminal Miscellaneous petition has been

preferred by the petitioner for anticipatory bail under Section

482 of B.N.S.S., 2023 in connection with Kuchaikote P.S. Case

No. 316 of 2023 dated 24.06.2023, registered for the offences

punishable under Sections 27(b)(2)/27(d)/28 of Drugs and

Cosmetics Act, 2008 and Section 22 of N.D.P.S. Act, 1985.

Prosecution Case

2. The prosecution case, as emerging from the written

report of Sub-Inspector, Excise of Balthari Check-Post,

Gopalganj is that during check, the Truck bearing Registration

No. UP32SN-3730 was detained and the following items were

recovered from the Truck: (i) 3200 bottles of Eskuf Codeine
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Syrup, containing 100 ml each, (ii) 06 tin of liquid solution,

containing 30 litre each (iii) 18 pages of documents connected

with the seized material, (iv) Driving license of the driver,

Rakesh Kumar Yadav, (v) One mobile and (vi) Cash of Rs.

3,500/-.

3. 17 pieces of syrup out of the seized syrup was sent

to Laboratory. The Truck containing the recovered items was

seized and the driver was also arrested on the spot and the

subject Kuchaikote P.S. Case No. 316 of 2023 was registered

against the driver, Rakesh Kumar Yadav.

Rejection of Anticipatory Bail Petition of the Petitioner

by the Court of Sessions, Gopalganj

4. Prior to moving this Court, the petitioner had

preferred anticipatory bail petition before the Sessions Court,

Gopalganj. However, the anticipatory bail petition filed by the

petitioner bearing A.B.P. No. 2189 of 2024 was rejected by

Court of Additional District and Sessions Judge-III, Gopalganj,

holding as follows :

“5. As per the F.I.R., allegation against this
petitioner/accused is that he happens to be owner of seized
truck bearing Reg. No. UP32SN3730 wherein 2080 pieces
ESKUF Codeine Syrup each measuring 100 ml and 29920
pieces of another cough syrup each measuring 100 ml and
30 litres of liquid solution and cash Rs. 3500 were
recovered. The said recovery and seizure were made by
the informant police office at Balthari check-post
Gopalganj and the driver of the truck namely Rakesh
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Kumar Yadav was arrested on the spot. The said driver
Rakesh Kumar Yadav, who has been charge-sheeted vide
charge-sheet No. 478/2023 dated 18.09.2023, in his
confessional statement as is recorded in para 13 of the
case diary disclosed the name of this petitioner/accused as
being the owner of the seized truck and he has also stated
in his confessional statement that the petitioner, who is
owner of the truck, handed the truck to him (driver Rakesh
Kumar Yadav) as loaded with the seized goods.
6. Para 9 of the case diary shows that the
seized/recovered cough syrup were prohibited by the
Government vide notification published in Gazette of
India dated 02.06.2023 and the recovery is of 24.06.2023,
i.e. recovery was made after publication of notice of
prohibited cough syrups. Investigation in this case is still
going on.
7. Hence, considering the said circumstances, I do
not find it fit to admit the petitioner/accused to the
privilege of anticipatory bail, and accordingly, anticipatory
bail prayer of the petitioner/accused is hereby rejected.”

5. I heard learned counsel for the petitioner and

learned APP for the State.

Submission on behalf of the Petitioner

6. Learned counsel for the Petitioner submits that the

Petitioner is innocent and has falsely been implicated in this

case. He further submits that the prosecution against the

Petitioner is vitiated in view of the non-compliance of the

mandatory provisions of Section 42 of the N.D.P.S., Act at the

time of making search and seizure.

7. He further submits that the petitioner is only owner

of the Truck in question bearing Registration No. UP32SN-3730

and he has given his truck to Transporter-Countrywide Logistics

on hire and at the time of seizure of his vehicle, it was carrying
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consignment of S.B. Pharma, Lucknow, U.P. to be delivered to

M/S J.N. Enterprises and hence, he has nothing to do with the

alleged offence.

8. He further submits that the alleged contraband

recovered from the Petitioner is not a narcotic drug and

psychotropic substance punishable under the N.D.P.S., Act. It is

cough syrup containing less than 2.5 per cent codeine of the

total preparation. Hence, it is an essential drug, not punishable

under the N.D.P.S., Act. At the most, the Petitioner may be

prosecuted under the Drugs and Cosmetics Act, 1940. In this

context, he refers to and relies upon Vibhor Rana v. Union of

India, 2021 SCC OnLine All 908.

9. In Vibhor Rana case (supra), Allahabad High

Court was seized with the writ petition, involving question

whether “New Fancy Deal Linctus Cough Syrup” is a narcotic

drug and it comes within the purview of N.D.P.S., Act. Here,

Allahabad High Court has held as follows:

“23. Thus, as per the aforesaid Notification, if any
drug contains not more than 100 milligrams of Methyl
Morphine, which is commonly known as Codeine, per
dosage unit, and in that drug Codeine is compounded with
one or more other ingredients and if in the drug the
concentration of Codeine is not more than 2.5% in
undivided preparations and the drug has been established
in Therapeutic practice, will not be a “Manufactured
Drug” and, therefore, it will not be a “Narcotic Drug”.
24. The prohibition contained in Section 8 of the Act
is applicable to “Narcotic Drugs” and since Phensedyl
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New Cough Linctus contains Codeine compounded with
one other ingredient, namely Chlorpheniramine Maleate
and since Phensedyl New Cough Linctus contains merely
10 milligrams per dosage unit of 5 ml, which is not more
than 100 milligrams of the drug per dosage unit in
undivided preparations and the concentration of Codeine
in Phensedyl New Cough Linctus is merely 0.2%, which
obviously is not more than 2.5% and which has been
established in Therapeutic practice, it is not a
“Manufactured Drug” and, therefore, it is not a “Narcotic
Drug”, the prohibition contained in Section 8 of the Act
does not apply to it.
25. Phensedyl New Cough Linctus contains Codeine
which is mentioned at Serial Number 20 in Schedule H1
appended to the Drugs Rules, 1945 and a note appended to
Schedule H1 provides that “Preparations containing the
above drug substances and their sales excluding those
intended for topical or external use (except opthalmic and
ear or nose preparations) containing above substances are
also covered by this Schedule”. Therefore, Phensedyl New
Cough Linctus is a drug covered by the Drugs and
Cosmetics Act, 1940.
26. To clarify this position, on 26.10.2005 the Drug
Controller General of India had written letter to all the
State Drugs Controllers stating as follows:—
“As you are aware there are number of Cough
preparations like Corex of M/s Pfizer Ltd. Mumbai,
Phensedyl of M/s. Nicholas Piramal India Limited,
Mumbai, Codokuff of M/S. German Remedies, Codeine
Linctus of M/s Zydus Alidac etc. moving in inter state
commerce. These preparations contain among other drugs
Codeine Phosphate 10 mg as one of the ingredients. By
virtue of the fact that these preparations contain Codeine
and it salts they do not fall under the provisions of NDPS
Act and Rules of 1985 but they fall under Schedule H of
the Drugs and Cosmetics Rules and are governed by the
said rules. Though stocking and sale of these drugs do not
attract the provisions of NDPS Act and Rules 1985
however these formulations are prescriptions drugs and
are to be dispensed on the prescriptions drug and are to be
dispensed on the prescription of a registered Medical
Practitioner only. Further you may be already aware that
under notification number S.O. 826(E) dated 14 th Nov.
1985 under the Narcotic Drugs and Psychotropic
Substances Act and Rules 1985 certain preparations are
exempted as manufactured drugs provided the
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preparations contain the Narcotic drug to the extent
permitted. In respect of Codeine under entry no. 35 it is
stated that Codeine and Ethyl 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 milligrams of the drug per
dosage unit and with a concentration of not more than 2.5
per cent in undivided preparations and which have been
established in therapeutic practice.”
27. In March 2009 the Drugs Controller General
(India) had issued a letter to the Associated Chambers of
Commerce and Industry of India in response to a request
for clarification of drug substance Cough Linctus
containing codeine Phosphate stating that:—
“In this connection this Directorate had already
issued a circular letter vide our letter number X-
11029/27/05-D dated 26/10/2005 to all State Drugs
Controllers with a copy to various associations and a
copy Narcotic Control Bureau New Delhi (copy
enclosed). The above circular inter alia stated that these
preparations (Cough Linctus containing Codeine
Phosphate) contains among other drugs Codeine
Phosphate 10 mg as one of the ingredients. By virtue of
the fact that these preparations contain Codeine and its
salts they do not fall under the provisions of NDPS Act
and the Rules of 1985 but they fall under Schedule H of
the Drugs and Cosmetic Rules and are governed by the
said rules. Though stocking and sale of these drugs do
not attract the provisions of NDPS Act and Rules 1985,
however these formulations are prescriptions drugs and
are to be dispensed on the prescriptions of a registered
Medical Practioner only.
Further you may be aware that under notification
number S.O.826(E) dated 14th November, 1985 under
the Narcotic Drugs and Psychotropic Substances Act
and Rules 1985 certain preparations are exempted as
manufactured drugs provided the preparations contain
the Narcotic drug to the extent permitted. In respect of
Codeine under entry no. 35 it is stated that Codeine and
Ethyl 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 drug per
dosage unit and with a concentration of not more than
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2.5 per cent in undivided preparations and which have
been established in therapeutic practice.”
10. Learned counsel for the Petitioner also submits

that the Petitioner has no criminal antecedent.

11. He further submits that the petitioner is only

owner of the Truck which was allegedly found carrying the

contraband and he is not named accused in the F.I.R., lodged

consequent to the recovery of the contraband from his Truck.

Only on the basis of confessional statement of the driver, name

of the petitioner has transpired in this case and driver of the

Truck was arrested on the spot and who is named accused in the

F.I.R. It was the petitioner who had handed over the truck to the

driver loaded with the seized articles, however, he has no

involvement in the alleged offence.

Submission on behalf of the State

12. However, learned APP for the State submits that

3200 bottles of Eskuf Codeine Syrup of 100 ml each, containing

codeine has been recovered from the Truck, belonging to the

petitioner without any documents showing the possession of the

contraband seized from his Truck and as per the driver, it was

the petitioner who had handed over the Truck to him loaded

with the seized contraband.

13. He further submits that the petitioner is unable to
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file any consignment note showing that at the time of the seizure

of his vehicle, there was any consignment made by S.B. Pharma

to be delivered to M/S J. N. Enterprises. Moreover, even if any

transporter or any company is committing any offence

punishable under NDPS Act and the vehicle of the petitioner has

been used, the petitioner cannot escape from any criminal

liability.

14. He further submits that even if codeine constitutes

less than 2.5 per cent of the total preparation of cough syrup, it

comes in the category of manufactured narcotic drugs, though, it

has been categorized as essential drugs. But even possession of

such essential drug is regulated by the N.D.P.S., Act and in

violation of such regulations, the Petitioner is liable to be

prosecuted under the N.D.P.S., Act because it is not the case of

the Petitioner that the Petitioner has permit or license to possess

such cough syrup in the quantity as recovered from him. In this

regard, he refers to and relies upon the following judicial

precedents:

(i) Mohd. Ahsan Vs. Customs,
2022 SCC OnLine Del 2910
(ii) Azhar Javad Rather Vs. UT of J and K,
AIR OnLine 2023 J & K 270

15. In Mohd. Ahsan case (supra), there was recovery

of 110 bottles of cough syrup “New Fancy Drug Linctus Cough
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Syrup” containing a minuscule quantity of codeine i.e 0.17 per

cent in each bottles. Here, Delhi High Court referred to all

relevant statutory provisions of the N.D.P.S., Act and the

relevant judicial precedents including the Vibhor Rana case

(supra) and held that even in case of cough syrup, the N.D.P.S.

Act and the Rules as made thereunder are applicable. It has

further held that in the Vibhor Rana Case (supra), Section 9 of

the N.D.P.S. Act, providing for power to the Central

Government to control and regulate and consequent Central

Government Notifications were not considered.

16. Jammu and Kashmir High Court has also taken

similar view in Azhar Javad Rather case (supra).

17. He further submits that in view of Hira Singh vs.

Union of India, as reported in (2020) 20 SCC 272, the seized

contraband is of commercial quantity, if the content of codeine

and neutral substances are taken together to determine the

quantity of the contraband. Hence, the rigors of Section 37 of

the NDPS Act comes into play and the petitioner is not entitled

to get anticipatory bail.

Legal Provisions

18. Before I consider the rival submissions of the

parties, it is imperative to discuss the relevant statutory
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provisions and binding judicial precedents.

19. The NDPS Act and the Rules made thereunder are

in addition to and not in derogation of the Drugs and Cosmetics

Act, 1940 and the Rules made thereunder as has been clearly

provided under Section 80 of NDPS Act. Hence, the NDPS Act

should not be read in exclusion of the Drugs and Cosmetics Act,

1940. Section 80 of the N.D.P.S., Act reads as follows:

“80. Application of the Drugs and
Cosmetics Act, 1940 not barred.—The provisions of
this Act or the rules made thereunder shall be in
addition to, and not in derogation of, the Drugs and
Cosmetics Act, 1940 (23 of 1940) or the rules made
thereunder.”

20. The Drugs and Cosmetics Act, 1940 deals with the

drugs which are intended to be used for therapeutic or medical

uses. The NDPS Act, on the other hand, is a special law and it

intends to curb and penalize the use of narcotic drugs which are

used for intoxication or for getting stimulant effect.

21. The Drugs and Cosmetics Act is intended to

prevent sub-standard drugs and to maintain high standards of

medical treatment and curtail the menace of adulteration of

drugs and also of the production, manufacture, distribution and

sale of spurious and sub-standard drugs. However, the NDPS

Act, on the other hand, intends to control and regulate the

operation relating to Narcotic Drugs and Psychotropic
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Substances. In this context, one may refer to the following

judicial precedents:-

(i) Directorate of Revenue Intelligence vs. Raj
Kumar Arora, 2025 SCC OnLine SC 819

(ii) State of Punjab vs. Rakesh Kumar,
(2019) 2 SCC 466
(iii) Union of India vs. Sanjeev V. Deshpande,
(2014) 13 SCC 1

22. Now coming to the statutory provisions of the

NDPS Act, one may find that Section 8 prohibits certain

operations. Section 8 reads as follows:-

“8. Prohibition of certain operations.- No person
shall-
(a) cultivate any coca plant or gather any portion of
coca plant; or
(b) cultivate the opium poppy or any cannabis plant;
or
(c) produce, manufacture, possess, sell, purchase,
transport, warehouse, use, consume, import inter-State,
export inter-State, import into India, export from India or
tranship any narcotic drug or psychotropic substance,
except for medical or scientific purposes and in the
manner and to the extent provided by the provisions of
this Act or the rules or orders made thereunder and in a
case where any such provision, imposes any requirement
by way of licence, permit or authorisation also in
accordance with the terms and conditions of such licence,
permit or authorisation:
Provided that, and subject to the other provisions of
this Act and the rules made thereunder, the prohibition
against the cultivation of the cannabis plant for the
production of ganja or the production, possession, use,
consumption, purchase, sale, transport, warehousing,
import inter-State and export inter-State of ganja for any
purpose other than medical and scientific purpose shall
take effect only from the date which the Central
Government may, by notification in the Official Gazette,
specify in this behalf:
Provided further that nothing in this section shall
apply to the export of poppy straw for decorative
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purposes.”
(Emphasis supplied)

23. However, Section 9 of the NDPS Act gives power

to the Central Government to permit, control and regulate

certain operations. It reads as follows:-

“9. Power of Central Government to permit,
control and regulate.- (1) Subject to the provisions of
section 8, the Central Government may, by rules-
(a) permit and regulate—

……………………………………………………………
……………………………………………………..
(va) the manufacture, possession, transport,
import inter-State, export inter-State, sale, purchase,
consumption and use of essential narcotic drugs:
Provided that where, in respect of an essential
narcotic drug, the State Government has granted licence or
permit under the provisions of section 10 prior to the
commencement of the Narcotic Drugs and Psychotropic
Substances (Amendment) Act, 2014, such licence or
permit shall continue to be valid till the date of its expiry
or for a period of twelve months from such
commencement, whichever is earlier.
(vi) the manufacture, possession, transport import
inter-State, export inter-State, sale, purchase, consumption
or use of psychotropic substances;

……………………………………………………………
……………………………………………………..
(ha) prescribe the forms and conditions of
licences or permits for the manufacture, possession,
transport, import inter-State, export inter-State, sale,
purchase, consumption or use of essential narcotic drugs,
the authorities by which such licence or permit may be
granted and the fees that may be charged therefore;
(i) prescribe the forms and conditions of licences or
permits for the manufacture, possession, transport, import
inter-State, export inter-State, sale, purchase, consumption
or use of psychotropic substances, the authorities by
which such licences or permits may be granted and the
fees that may be charged therefore;
…..…………………………………………………………
…………………………………………………………….”
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(Emphasis Supplied)

24. Section 21 of the NDPS Act provides for

punishment for contravention in relation to manufactured drugs

and preparations. It reads as follows:-

“21. Punishment for contravention in relation to
manufactured drugs and preparations.- Whoever, in
contravention of any provision of this Act or any rule or
order made or condition of licence granted thereunder,
manufactures, possesses, sells, purchases, transports,
imports inter-State, exports inter-State or uses any
manufactured drug or any preparation containing any
manufactured drug shall be punishable,--
(a) where the contravention involves small quantity,
with rigorous imprisonment for a term which may extend
to one year, or with fine which may extend to ten thousand
rupees, or with both;
(b) where the contravention involves quantity, lesser
than commercial quantity but greater than small quantity,
with rigorous imprisonment for a term which may extend
to ten years and with fine which may extend to one lakh
rupees;
(c) where the contravention involves commercial
quantity, with rigorous imprisonment for a term which
shall not be less than ten years but which may extend to
twenty years and shall also be liable to fine which shall
not be less than one lakh rupees but which may extend to
two lakh rupees:
Provided that the court may, for reasons to be
recorded in the judgment, impose a fine exceeding two
lakh rupees.”
(Emphasis Supplied)

25. Section 2 (xi) of the NDPS Act defines the word
“manufactured drug”. It reads as follows:-
“2 (xi). "manufactured drug" means—
(a) all coca derivatives, medicinal cannabis,
opium derivatives and poppy straw concentrate;
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(b) any other narcotic substance or preparation
which the Central Government may, having regard to the
available information as to its nature or to a decision, if
any, under any International Convention, by notification in
the Official Gazette, declare to be a manufactured drug;
but does not include any narcotic substance or
preparation which the Central Government may, having
regard to the available information as to its nature or to a
decision, if any, under any International Convention, by
notification in the Official Gazette, declare not to be a
manufactured drug;”
(Emphasis Supplied)

26. Section 22 of the NDPS Act provides for

punishment for contravention in relation to psychotropic

substances. It reads as follows:-

“22. Punishment for contravention in
relation to psychotropic substances.—Whoever, in
contravention of any provision of this Act or any rule or
order made or condition of licence granted thereunder,
manufactures, possesses, sells, purchases, transports,
imports inter-State, exports inter-State or uses any
psychotropic substance shall be punishable,—
(a) where the contravention involves small
quantity, with rigorous imprisonment for a term which
may extend to 5[one year], or with fine which may extend
to ten thousand rupees, or with both;
(b) where the contravention involves quantity
lesser than commercial quantity but greater than small
quantity, with rigorous imprisonment for a term which
may extend to ten years, and with fine which may extend
to one lakh rupees;
(c) where the contravention involves
commercial quantity, with rigorous imprisonment for a
term which shall not be less than ten years but which may
extend to twenty years, and shall also be liable to fine
which shall not be less than one lakh rupees but which
may extend to two lakh rupees:
Provided that the court may, for reasons to be
recorded in the judgment, impose a fine exceeding two
lakh rupees:”
(Emphasis Supplied)

27. Section 2 (xxiii) of the NDPS Act defines the
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word “psychotropic substance”. It reads as follows:-

“2 (xxiii). "psychotropic substance" means
any substance, natural or synthetic, or any natural material
or any salt or preparation of such substance or material
included in the list of psychotropic substances specified in
the Schedule;”
(Emphasis Supplied)
28. In the Schedule to the NDPS Act, 1985, there are

111 entries. Up to entry No. 110, specific names have been

provided and as per entry No. 111, salts and preparations of

above has been also categorized as psychotropic substances.

29. The word “Preparation” has been defined by

Section 2 (xx) of the NDPS Act. It reads as follows:-

“2 (xx). "preparation", in relation to a
narcotic drug or psychotropic substance, means any one or
more such drugs or substances in dosage form or any
solution or mixture, in whatever physical state, containing
one or more such drugs or substances;”

30. In exercise of the powers conferred by Section 9

read with Section 76 of NDPS Act, Central Government has

made NDPS Rules, 1985. In the year, 2015, Chapter VA has

been added to the Rules dealing with possession, transport,

import inter-State, export inter-State, sale, purchase,

consumption and use of essential narcotic drug.

31. Section 2 (viiia) defines essential narcotic drug,

as per which, essential narcotic drug means a narcotic drug

which has been notified by Central Government for medical and

scientific use. In the table provided under the Rule 52A(3) of the
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NDPS Rules, 1985, the names of essential narcotic drugs have

been given and there are five entries in this table. Methyl

morphine (commonly known as ‘Codeine’) and Ethyl morphine

and their salts (including Dionine), all dilutions and preparations

except those which are compounded with one or more other

ingredients and containing not more than 100 milligrammes of

the drug per dosage unit and with a concentration of not more

than 2.5% in undivided preparations and which have been

established in therapeutic practice, has been provided in entry

No. 2 of the Table.

32. Sub-Rule 1 of Rule 52A provides that no person

shall possess any essential narcotic drug otherwise than in

accordance with the provisions of these Rules. As per Sub-Rule

2 of Rule 52A, even quantity of such essential narcotic drug in

possession must be in permitted limit. The Controller of drugs

or his authorized officer has been given power to give such

licence/permit for medical practitioner, medical institutions,

manufacturer, licenced dealer or a licenced chemist. Other

detailed provisions in regard to control of essential narcotic

drugs have been also given in Chapter VA of the NDPS Rules,

1985.

33. The commercial quantity of contraband has been
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defined by Section 2 (viia) as per which it means any quantity

greater than the quantity specified by the Central Government

by notification in the Official Gazette, whereas Section 2(xxiiia)

defines small quantity as per which it means any quantity

lesser than the quantity specified by the Central Government by

notification in the Official Gazette. In pursuance of these sub-

Sections viia and xxiiia of Section 2 of NDPS Act, Central

Government had issued a notification in the year, 1996 and

thereafter, the same was replaced by notification dated

19.10.2001, specifying the small and commercial quantity of

narcotic drugs and psychotropic substances by way of providing

a table of such narcotic drugs and psychotropic substances.

There were three Notes to this Table. However, on 18.11.2009,

Note no. 4 was added, as per which the quantity of the neutral

substances of any mixture or other preparations of narcotic

drugs or psychotropic substances has to be taken into

consideration while determining the “small or commercial”

quantity of the Narcotic Drugs or Psychotropic Substances.

34. This addition of Note 4 was made subsequent to

judgment of Hon’ble Supreme Court in E. Micheal Raj vs.

Narcotic Control Bureau as reported in (2008) 5 SCC 161, in

which Hon’ble Supreme Court has taken view that when any
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narcotic drug or psychotropic substance is found mixed with

one or more neutral substance(s), for the purpose of imposition

of punishment it is the content of the narcotic drug or

psychotropic substance which shall be taken into consideration.

35. The notification dated 18.11.2009 adding Note 4

to the notification dated 19.10.2001, was challenged. However,

Hon’ble Full Bench of Supreme Court in Hira Singh case

(supra) held that the notification is not ultra vires to the Scheme,

Rules and provisions of the NDPS Act, and hence, the writ

petitions challenging the notification was dismissed. It was

further held by Hon’ble Supreme Court in Hira Singh Case

(supra) that in case of seizure of mixture of narcotic drugs or

psychotropic substances with one or more neutral substance(s),

the quantity of neutral substance(s) is not to be excluded and it

has to be taken into consideration along with actual content by

weight of the offending drug, while determining the “small or

commercial quantity” of the narcotic drugs or psychotropic

substances.

36. As such, it clearly emerges from the statutory

provisions of the NDPS Act and Rules made thereunder, that

even the cough syrup containing codeine with concentration of

less than 2.5% of total preparation is controlled and regulated
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for its possession, sale, purchase, transport, export, import etc.

In this regard, Chapter-VA of the NDPS rules, 1985, containing

Rules 52A to 52M provide detailed provisions, as it has been

discussed above. Hence, the violation of such Rules in regard to

Control and Regulation of the Essential Drugs is punishable

under the NDPS Act. As such, if someone is found to be in

possession of such drugs without authorization, he is liable to be

prosecuted under the NDPS Act and not under the Drugs and

Cosmetic Act, 1940.

37. Similar view has been taken by Delhi High Court

in Mohd. Ahsan Vs. Customs case (supra) and Jammu &

Kashmir High Court in Azhar Javed Rather Case (supra). In

Vibhor Rana Case (supra), Allahabad High Court has reached

different conclusion, because Section 9 of the NDPS Act and

Chapter VA of the NDPS Rules, 1985 made thereunder, was not

brought to the notice of the Court and hence, the same was not

considered and, therefore, there was different conclusion.

38. The aforesaid view of this Court gets reinforced

also in view of the decision of Union of India and Anr. Vs.

Sanjeev V. Deshpande, (2014) 13 SCC 1, wherein Hon’ble

Supreme Court has held as follows:

“25. In other words, DEALING IN narcotic drugs and
psychotropic substances is permissible only when such
DEALING is for medical purposes or scientific purposes.
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Further, the mere fact that the DEALING IN narcotic drugs
and psychotropic substances is for a medical or scientific
purpose does not by itself lift the embargo created under
Section 8(c). Such a dealing must be in the manner and
extent provided by the provisions of the Act, Rules or
Orders made thereunder. Sections 9 and 10 enable the
Central and the State Governments respectively to make
rules permitting and regulating various aspects
(contemplated under Section 8(c), of DEALING IN narcotic
drugs and psychotropic substances.”

(Emphasis supplied)

39. Hon’ble Apex Court in Mohd. Sahabuddin and

Anr. Vs. State of Assam, (2012) 13 SCC 491, has again held as

follows:

“10. It is not in dispute that each 100 ml bottle of
Phensedyl cough syrup contained 183.15 to 189.85 mg of
codeine phosphate and the each 100 ml bottle of Recodex
cough syrup contained 182.73 mg of codeine phosphate.
When the appellants were not in a position to explain as to
whom the supply was meant either for distribution or for
any licensed dealer dealing with pharmaceutical products
and in the absence of any other valid explanation for
effecting the transportation of such a huge quantity of the
cough syrup which contained the narcotic substance of
codeine phosphate beyond the prescribed limit, the
application for grant of bail cannot be considered based on
the above submissions made on behalf of the appellants.”

(Emphasis supplied)

Present Case

40. Coming to the case on hand, I find that 3200

bottles of Eskuf Codeine Syrup has been recovered, containing

codeine phosphate & Triprolidine Hydrochloride. However, it is

not a case of the petitioner that he has any authorization to

possess such cough syrup in such a huge quantity. As such,
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Sections 21 and 22 read with Section 8 of the NDPS Act get

applicable in the alleged facts and circumstances of the case on

hand.

41. Moreover, when weight of the codeine along with

the weight of neutral substance is taken into consideration, the

weight of the seized cough syrup constitutes “commercial

quantity” in the light of Note-4 to the Notification specifying

small quantity and commercial quantity, dated 19.10.2001 and

in the light of Hira Singh Case (supra). Hence, Section 37 of

the NDPS Act also comes into play against grant of bail to the

petitioner, as per which not only Public Prosecutor is required to

be heard at the time of consideration of the bail petition of the

accused, even twin conditions as provided in Section 37 of the

NDPS Act have to be fulfilled to grant bail to the accused.

Moreover, these conditions are cumulative and not alternative

ones. Here, negation of bail is a rule and grant of it is an

exception.

42. The twin conditions as provided in Section 37 of

the NDPS Act are as follows:

(a) The satisfaction of the court that there

are reasonable grounds for believing that the accused

is not guilty of the alleged offence, and that
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(b) He is not likely to commit any offence

while on bail.

43. While considering the scope of Section 37 of the

N.D.P.S., Act in the light of the scheme of the act, Hon’ble

Supreme Court in State of M.P. Vs. Kajad, 2001 7 SCC 673

has held as follows:

“5. … A perusal of Section 37 of the Act leaves no doubt
in the mind of the court that a person accused of an
offence, punishable for a term of imprisonment of five
years or more, shall generally be not released on bail.
Negation of bail is the rule and its grant an exception
under sub-clause (ii) of clause (b) of Section 37(1). For
granting the bail the court must, on the basis of the record
produced before it, be satisfied that there are reasonable
grounds for believing that the accused is not guilty of the
offences with which he is charged and further that he is
not likely to commit any offence while on bail. It has
further to be noticed that the conditions for granting the
bail, specified in clause (b) of sub-section (1) of Section
37 are in addition to the limitations provided under the
Code of Criminal Procedure or any other law for the time
being in force regulating the grant of bail. Liberal
approach in the matter of bail under the Act is uncalled
for.”
(Emphasis supplied)

44. Similarly, in Narcotics Control Bureau Vs.

Mohit Aggarwal, (2022) 18 SCC 374, Hon’ble Supreme Court

has again held as follows:

“11. It is evident from a plain reading of the non
obstante clause inserted in sub-section (1) and the
conditions imposed in sub-section (2) of Section 37 that
there are certain restrictions placed on the power of the
court when granting bail to a person accused of having
committed an offence under the NDPS Act. Not only
are the limitations imposed under Section 439 of the
Code of Criminal Procedure, 1973 to be kept in mind,
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the restrictions placed under clause (b) of sub-section
(1) of Section 37 are also to be factored in. The
conditions imposed in sub-section (1) of Section 37 is
that : (i) the Public Prosecutor ought to be given an
opportunity to oppose the application moved by an
accused person for release and ( ii) if such an
application is opposed, then the court must be satisfied
that there are reasonable grounds for believing that the
person accused is not guilty of such an offence.
Additionally, the court must be satisfied that the
accused person is unlikely to commit any offence while
on bail.
…………………………………………………………
15. We may clarify that at the stage of examining an
application for bail in the context of Section 37 of the
Act, the court is not required to record a finding that the
accused person is not guilty. The court is also not
expected to weigh the evidence for arriving at a finding
as to whether the accused has committed an offence
under the NDPS Act or not. The entire exercise that the
court is expected to undertake at this stage is for the
limited purpose of releasing him on bail. Thus, the
focus is on the availability of reasonable grounds for
believing that the accused is not guilty of the offences
that he has been charged with and he is unlikely to
commit an offence under the Act while on bail.
…………………………………………………………
19. In our opinion the narrow parameters of bail
available under Section 37 of the Act, have not been
satisfied in the facts of the instant case. At this stage, it
is not safe to conclude that the respondent has
successfully demonstrated that there are reasonable
grounds to believe that he is not guilty of the offence
alleged against him, for him to have been admitted to
bail. The length of the period of his custody or the fact
that the charge-sheet has been filed and the trial has
commenced are by themselves not considerations that
can be treated as persuasive grounds for granting relief
to the respondent under Section 37 of the NDPS Act.”

(Emphasis supplied)

45. In a recent judgment of Narcotics Control

Bureau Vs. Kashif, (2024) 11 SCC 372, Hon’ble Supreme

Court has again held as follows:
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“9. There has been consistent and persistent view of
this Court that in the NDPS cases, where the offence is
punishable with minimum sentence of ten years, the
accused shall generally be not released on bail.
Negation of bail is the rule and its grant is an exception.
While considering the application for bail, the court has
to bear in mind the provisions of Section 37 of the
NDPS Act, which are mandatory in nature. The
recording of finding as mandated in Section 37 is a sine
qua non for granting bail to the accused involved in the
offences under the said Act.
10. Apart from granting the opportunity of hearing to
the Public Prosecutor, the other two conditions i.e. (i)
the satisfaction of the court that there are reasonable
grounds for believing that the accused is not guilty of
the alleged offence, and that (ii) he is not likely to
commit any offence while on bail, are the cumulative
and not alternative conditions.”

(Emphasis supplied)

46. In the alleged facts and circumstances of the case

on hand, there are no reasonable grounds to believe that the

petitioner is not guilty of the alleged offence and he is unlikely

to commit an offence under the NDPS Act while on bail.

47. As far as the claim of the petitioner that the

mandatory provisions of Section 42 of the NDPS Act have not

been complied with at the time of search and seizure of the

contraband, it would be relevant to point out that in Karnail

Singh Vs. State of Haryana, (2009) 8 SCC 539, Hon’ble Apex

Court has clearly held in para-35 of the judgment whether there

is adequate or substantial compliance with Section 42 of the

NDPS act or not is a question of fact to be decided in each case.

Similar view has been taken by Hon’ble Apex Court in Union
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of India Vs. Mohd. Nawab Khan (AIR 2021 SC 4476), and

Buta Singh Vs. State of Haryana (AIR 2021 SC 1913).

48. Hence, violation of Section 42 of the NDPS Act

being a question of fact can be decided during the trial only and

is not available to the petitioner in a Bail proceeding.

49. Considering the aforesaid facts and circumstances,

the petitioner is not entitled to be enlarged on anticipatory bail.

50. Accordingly, the present petition stands rejected.

(Jitendra Kumar, J.)
ravishankar/-
AFR/NAFR AFR
CAV DATE N.A.
Uploading Date 24.06.2026
Transmission Date 24.06.2026

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