Patna High Court
Santosh KumarversusThe State of Bihar
- Decided
- Disposal
- BAIL GRANTED
- Bench
- ANSUL
Holding
The Court held that, under Section 2(d) of the NDPS Act, the seized codeine is not a narcotic drug, rendering the Act inapplicable and warranting the grant of bail.
Summary
Santosh Kumar was arrested after 754 litres of codeine cough syrup were recovered from a pick‑up van he was alleged to be occupying. He pleaded innocence, arguing that no contraband was found in his conscious possession and that he has a clean antecedent. The State opposed bail, relying on the Supreme Court’s Hira Singh decision that non‑toxic material mixed with contraband is treated as contraband and that the quantity seized is commercial. The Court examined Section 2(d) of the NDPS Act, noting that codeine in the form recovered is not a narcotic drug and therefore the Act does not have jurisdiction over the case. Consequently, the Court held the Hira Singh precedent inapplicable and granted bail on condition of a Rs 10,000 bond with two sureties.
Issues considered
- Whether the NDPS Act applies to the codeine cough syrup seized in the present case.
- Whether the Hira Singh precedent regarding non‑toxic material mixed with contraband is applicable.
- Whether the quantity seized constitutes a commercial quantity that would preclude bail.
Legislation cited
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 111, 21(c), 2(d)
Subjects
- bail
- NDPS Act
- codeine
- commercial quantity
- Section 2(d)
- jurisdiction
- narcotic classification
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.33234 of 2026
Arising Out of PS. Case No.-10 Year-2026 Thana- PASRAHA District- Khagaria
======================================================
Santosh Kumar son of Nathu Ray Resident Of Village- Chandpura, Ward no.
4, ps- Raghopur, Dist- Vaishali
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Ms. Seema Kumari, Adv.
For the Opposite Party/s : Mr. Mohammed Arif, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ANSUL
ORAL ORDER
3 24-06-2026 Heard learned counsel for the petitioner and learned
APP for the State.
2. The petitioner seeks bail in connection with N.D.P.S.
Spl. Case No. 04 of 2026 arising out of Pasraha PS Case No. 10
of 2026 instituted for the offences under Sections 111 of the
BNS and 21(c) of the N.D.P.S. Act.
3. The allegation is that about 754 litres of codeine
cough syrup was recovered from the pick-up van and the
petitioner is said to be the occupant of the said vehicle.
4. Learned counsel for the petitioner submit that the
petitioner is innocent and have falsely been implicated in the
present case and no incriminating article has been recovered
from the conscious possession of the petitioner. The alleged
recovery is from a vehicle. The petitioner is in custody
Patna High Court CR. MISC. No.33234 of 2026(3) dt.24-06-2026
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since 28.06.2025 and has clean antecedent.
5. Learned counsel for the petitioner has submitted
that the Central Government has issued Notification No. S.O.
826(E) dated 14.11.1985 which is given hereunder:-
“S.O. 826(E). - In exercise of
the powers conferred by sub-clause (b)
of clause (xi) of section 2 of the
Narcotic Drugs and Psychotropic
Substances Act, 1985 (61 of 1985), the
Central Government hereby declares
the following narcotic substances and
preparations to be manufactured
drugs, namely:-
xxx
35. Methyl morphine (commonly
known as 'Codeine') and Ethyle
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
milligrams 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.
xxx”
6. Learned APP appearing for the State has vehemently
opposed 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
from the possession of this petitioner is commercial quantity.
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7. In this regard, it is worth mentioning that in view of
Section 2(d) of NDPS Act, the drug itself is not a narcotic drug
and therefore there is no jurisdictional basis for the case at hand
and hence, this Court would not have a reason to go into the
questions of quantities. Also, this Court is of the view that the
decision of Hira Singh (supra) loses its relevance and the same
is meant for situations where the items are narcotic. The
petitioner also has clean antecedent, therefore, this Court is
inclined to grant bail to the petitioner.
8. Let the petitioner be released on bail on furnishing bail
bonds of Rs.10,000/- (Ten thousand) with two sureties of the
like amount each to the satisfaction of learned Special Judge
NDPS Act, Purnea/concerned Court in connection with Sarsi
P.S. Case No. 133 of 2025 (Special NDPS Case No. 292 of
2025).
9. It is made clear that any observation made herein is
prima facie in nature and limited solely for the purpose of
adjudication of the present bail application. Such observations
shall not be construed as an expression on the merits of the case
and shall not influence the trial or any other proceedings in any
manner.
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(Ansul, J)
Siddharth Soni/-
U T
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