Patna High Court
Shyamnandan KumarversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The Court held that the codeine‑containing cough syrup, having a concentration below 2.5%, does not fall within the definition of a narcotic drug under the NDPS Act and therefore the petitioner is entitled to bail.
Summary
The petitioner, Shyamnandan Kumar, sought regular bail in a case under Sections 8(c) and 21(c) of the NDPS Act for alleged possession of 7,560 bottles of codeine‑containing cough syrup. The prosecution alleged that the syrup was seized from a house and that the quantity constituted a commercial amount of contraband. The petitioner contended that the seizure was not from his conscious possession, that the police failed to comply with Section 105 of the Bihar Narcotic Substances (B.N.S.S.) rules, and that the codeine concentration (0.2%) fell below the 2.5% threshold prescribed in Central Government Notification No. S.O. 826(E), rendering it a non‑narcotic, schedule‑H drug. The State relied on the Supreme Court’s decision in Hira Singh v. Union of India, arguing that any non‑toxic material mixed with contraband makes the whole quantity contraband. The Court examined the statutory definition under Section 2(d) of the NDPS Act and the applicable notification, concluding that the seized syrup did not meet the definition of a narcotic drug. Consequently, the Court ordered the petitioner’s release on bail upon furnishing a bond of Rs. 10,000 with two sureties, and noted that such cases should be prosecuted under the Drugs and Cosmetics Act rather than the NDPS Act.
Issues considered
- The applicability of Sections 8(c) and 21(c) of the NDPS Act to codeine‑containing cough syrup with 0.2% concentration
- Whether the seizure constitutes conscious possession by the petitioner
- Compliance of the police with Section 105 of the B.N.S.S. rules and the requirement of an FSL report
- Interpretation of the Central Government Notification No. S.O. 826(E) regarding permissible codeine concentration
- Whether the quantity recovered qualifies as ‘commercial quantity’ of contraband under NDPS jurisprudence
Legislation cited
- Bihar Narcotic Substances (B.N.S.S.) Rules — s. 105
- Drugs and Cosmetics Act
- Narcotic Drugs and Psychotropic Substances Act — s. 21(c), 2(d), 8(c)
Subjects
- bail
- NDPS Act
- codeine
- contraband
- concentration threshold
- Section 105
- FSL report
- Schedule H
- Drugs and Cosmetics Act
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.34671 of 2026
Arising Out of PS. Case No.-216 Year-2025 Thana- PRATAPGANJ District- Supaul
======================================================
Shyamnandan Kumar S/o Domi Mehta R,o - Sukhanagar, Ward No. 2, P.S -
Pratapganj, District - Supaul
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Kumar Rajdeep, Advocate
For the Opposite Party/s : Mr. Abhay Kumar Roy, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
2 20-05-2026 Heard learned counsel for the petitioner and learned
APP for the State through Video Conferencing.
2. The petitioner has prayed for regular bail in a
case registered for the offence punishable under Sections 8(c),
21 (c) of the NDPS Act.
3. The case of the prosecution, in brief, is that from
the possession of this petitioner altogether 7560 bottles of
WISCOF cough syrup of 100 ml each containing Codeine was
recovered.
4. Learned counsel for the petitioner submits that
nothing has been recovered from possession of the petitioner. It
is also submitted that all the witnesses to the seizure list are
police personnel, and the police have not complied the
mandatory provisions of Section 105 of the B.N.S.S. It is further
Patna High Court CR. MISC. No.34671 of 2026(2) dt.20-05-2026
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submitted that, in this case the charge-sheet was filed without
the FSL report vide Notification No. S.O. 826(E) dated
14.11.1985 under the Narcotic Drugs and Psychotropic
Substances Act of the Central Government. Learned counsel for
the petitioner further submits that no recovery has been made
from the conscious possession of the petitioner, as the alleged
recovery was effected from a house. The petitioner is in custody
since 14.10.2025, having no criminal antecedent.
5. Learned counsel for the petitioner has further
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.
Patna High Court CR. MISC. No.34671 of 2026(2) dt.20-05-2026
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6. In this case, Codeine Cough syrup containing
codeine phosphate has been recovered from a magic vehicle and
the concentration of the codeine in this drug is approximately
0.2% which 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 from the
possession of the 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
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of the like amount each to the satisfaction of the learned Special
Judge (NDPS), Supaul/concerned Court, in connection with
Pratapganj P.S. Case No. 216 of 2025.
10. Before parting, it is very strange that the cases
where cough syrups containing codeine are recovered, the
police is invariably filing cases under N.D.P.S. Act whereas in
view of the notification of Central Government (supra)
concentration of codeine being less than 2.5 %, the quantity
does not come under the ambit of contraband. Cough syrup
containing codeine is only a Schedule-H drug for which, the
shopkeeper has to maintain register and he must be a licensed
one. Such type of cases should be filed under Drugs and
Cosmetic Act. It is only the violation of Drugs and Cosmetic Act
whereas, police is invariably misusing the procedure.
(Ashok Kumar Pandey, J)
khushbu/-
U T
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