Patna High Court
Md. ZakirversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
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
- Bihar Narcotic Substances (BNSS) Act — s. 105
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 21(C), 29, 2(d)
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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