Patna High Court
Md. Sajjad AnsariversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The court held that the petitioner is entitled to bail as the seized preparation falls within the statutory exemption and the court lacks jurisdiction over the quantity.
Summary
The petitioner, Md. Sajjad Ansari, was arrested in connection with a case involving 50 bottles of Wiscodin cough syrup containing codeine and applied for bail. He contended that the seizure was illegal as the police did not comply with Section 105 of the Bihar Narcotic Substances Act and that the syrup, having less than 2.5% codeine, falls under the exemption provided by Notification S.O. 826(E) dated 14.11.1985, classifying it as a manufactured drug. The State argued, relying on the Supreme Court decision in Hira Singh v. Union of India, that the entire mixture constitutes contraband and that the quantity seized is commercial. The court examined Section 2(d) of the NDPS Act, concluding that the drug itself is not a narcotic drug and that the central government’s notification governs its status, thereby removing jurisdiction over the quantity issue. Consequently, the court granted bail to the petitioner upon furnishing a bond of Rs.10,000 with two sureties.
Issues considered
- Whether the seized Wiscodin cough syrup containing codeine below 2.5% is exempt under the NDPS notification and thus not punishable.
- Whether the quantity seized constitutes a 'commercial quantity' for the purposes of the NDPS Act.
- Whether Section 2(d) of the NDPS Act excludes jurisdiction over the seized preparation.
- Whether bail should be granted to the petitioner pending trial.
Legislation cited
- Bihar Narcotic Substances Act, 2023 — s. 115(2), 118(1), 121(2), 122(2), 3(5)
- Narcotic Drugs and Psychotropic Substances Act — s. 20(b)(ii)(B), 2(d), 8
Subjects
- bail
- NDPS Act
- codeine
- manufactured drug exemption
- commercial quantity
- seizure
- Section 105
- jurisdiction
- notification
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.33058 of 2026
Arising Out of PS. Case No.-228 Year-2025 Thana- MADHEPUR District- Madhubani
======================================================
Md. Sajjad Ansari S/o- Md. Habib Ansari R/v- Madhepur West W.No-11, Ps-
Madhepur Dist- Madhubani
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Ratnakar Jha, Advocate.
For the Opposite Party/s : Mr. Ram Sevak Choudhary, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
2 14-05-2026 Heard learned counsel for the petitioner and learned
APP for the State.
2. The petitioner has prayed for bail in connection
with Madhepur P.S. Case No. 228 of 2025 registered for the
offence punishable under Section 115(2), 121(2), 122(2),
118(1), 3(5) of the B.N.S., 2023 and Sections 8, 20(b)(ii)(B) of
the N.D.P.S. Act.
3. The case of the prosecution, in short, is that
altogether 50 bottles of WISCODIN cough syrup of 100 ml
each 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
Patna High Court CR. MISC. No.33058 of 2026(2) dt.14-05-2026
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case. 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 105 of the BNSS
while making the seizure. 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
23.02.2026.
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.
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6. In this case, WISCODIN cough syrup has been
recovered 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. 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
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Principal Sessions Judge, Madhubani in connection with
Madhepur P.S. Case No. 228 of 2025.
(Ashok Kumar Pandey, J)
Sudhanshu/-
U T
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