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Patna High Court

Md. ZakirversusThe State of Bihar

Decided
Disposal
ALLOWED

Holding

The court held that the petitioner is entitled to bail because the seized preparation is exempt under the notification and does not fall within the NDPS Act’s jurisdiction.

Summary

The petitioner, Md. Zakir, was charged under Sections 21(C) and 29 of the NDPS Act for allegedly possessing 43 bottles of 100 ml cough syrup containing codeine. He contended that the seized preparation fell within the exemption granted by Notification S.O. 826(E) dated 14‑11‑1985, which permits codeine concentrations up to 2.5 % in therapeutic preparations, and that the police had not complied with Section 105 of the BNSS while making the seizure. The State relied on the Supreme Court decision in Hira Singh v. Union of India, arguing that the mixture constituted a commercial quantity of contraband. The Court examined the statutory exemption, the definition of narcotic drug under Section 2(d) of the NDPS Act, and the procedural lapse, and concluded that the preparation was exempt and not within the NDPS jurisdiction. Consequently, the Court ordered the petitioner to be released on bail upon furnishing a bail bond of Rs 10,000 with two sureties.

Issues considered

  • Whether the cough‑syrup containing codeine, with a concentration below 2.5 %, is exempt from the NDPS Act under Notification S.O. 826(E).
  • Whether the quantity recovered constitutes a ‘commercial quantity’ attracting bail denial under the NDPS Act.
  • Whether procedural compliance with Section 105 of the BNSS is required for a valid seizure.

Legislation cited

Subjects

  • bail
  • NDPS Act
  • codeine exemption
  • commercial quantity
  • Section 105 BNSS
  • procedural lapse
  • prior criminal antecedent

Judgment

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                              CRIMINAL MISCELLANEOUS No.33076 of 2026
                 Arising Out of PS. Case No.-703 Year-2025 Thana- LAHERIYASARAI District- Darbhanga
                 ======================================================
                 Md. Zakir S/O Md. Abbas R/O village - New Khajasarai, P.S.- Laheriasarai,
                 District- Darbhanga

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

                                                        ... ... Opposite Party/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s     :      Mr. Nawal Kishor Prasad, Advocate.
                 For the Opposite Party/s :      Mr. Syed Mojibur Rahman, 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 registered for the

                   offence punishable under Sections 21(C) and 29 of the N.D.P.S.

                   Act.

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

                   the house of the petitioner, altogether 43 bottles each of 100 ml

                   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. 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
Patna High Court CR. MISC. No.33076 of 2026(2) dt.14-05-2026
                                             2/3




          seizure. Moreover, the petitioner has got criminal antecedent of

          three cases and he is languishing in judicial custody since

          28.11.2025.

                       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, Phanokuf New Codeine Phosphate and

          Triprolidine Hudrochloride Syrup have been 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
           Patna High Court CR. MISC. No.33076 of 2026(2) dt.14-05-2026
                                                       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 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 Principal

                     District & Sessions Judge, Darbhanga in connection with

                     Laheriasarai P.S. Case No. 703 of 2025.


                                                    (Ashok Kumar Pandey, J)
Sudhanshu/-

U      T


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