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Patna High Court

Md. SahebversusThe State of Bihar

Decided
Disposal
ALLOWED

Holding

The court held that the cough syrup does not constitute a narcotic drug under the NDPS Act and therefore granted anticipatory bail.

Summary

The petitioner, Md. Saheb, sought anticipatory bail fearing arrest in a NDNDPS case concerning 479 litres of Berry Safe cough syrup containing codeine. He argued that the syrup, with 0.2% codeine, falls below the 2.5% threshold set by a Central Government notification, making it a Schedule‑H drug under the Drugs and Cosmetics Act, for which he holds a valid licence, and that the recovered quantity includes only 280 litres belonging to him. The State contended that under the NDPS Act, any non‑toxic material mixed with contraband is treated as contraband and that the quantity is commercial, citing Hira Singh v. Union of India. The court examined Section 2(d) of the NDPS Act, the central notification, and the licence, and concluded that the syrup does not constitute a narcotic drug within the NDPS ambit. Consequently, the court granted anticipatory bail, directing the petitioner to surrender within four weeks and to furnish a bail bond with sureties, subject to conditions under Section 482(2) of the B.N.S.S.

Issues considered

  • Whether cough syrup containing 0.2% codeine falls within the definition of a narcotic drug under the NDPS Act.
  • Whether the petitioner is liable to be arrested under Sections 8(c), 21(c) and 29 of the NDPS Act.
  • Whether anticipatory bail should be granted in view of the licence and central government notification.

Legislation cited

Subjects

  • anticipatory bail
  • NDPS Act
  • codeine concentration
  • Drugs and Cosmetics Act
  • schedule‑H drug
  • central government notification
  • commercial quantity
  • contraband

Judgment

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                              CRIMINAL MISCELLANEOUS No.36592 of 2026
                    Arising Out of PS. Case No.-498 Year-2025 Thana- PURNEA SADAR District- Purnia
                 ======================================================
                 Md. Saheb Son of Md. Mojammil Haq (Proprietor of A.S. Pharma Medical),
                 Resident of Village - Mirgibai Betauna, P.S.- Kasba, District - Purnea.

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

                                                        ... ... Opposite Party/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s     :       Mr. N.K. Agarwal, Sr. Advocate
                                                  Mr. Kumar Rajdeep, Advocate
                 For the Opposite Party/s :       Mr. Anand Kishore Choudhary, APP
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
                                       ORAL ORDER

2   22-06-2026                    Heard learned counsel for the petitioner and learned

                   APP for the State.

                                 2. The instant application for anticipatory bail has

                   been filed by the petitioner apprehending his arrest in

                   connection with Sadar P.S. Case No. 498 of 2025 registered for

                   the offence punishable under Sections 8(c), 21(c) and 29 of the

                   N.D.P.S. Act.

                                 3. The case of the prosecution is that altogether 479

                   liters of Berry Safe 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 falsely been implicated in this
Patna High Court CR. MISC. No.36592 of 2026(2) dt.22-06-2026
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          case. Learned counsel has submitted that the recovery has been

          made from the Godown of the transporter. It has further been

          submitted that out of the total recovery, 280 liters of cough

          syrup was for them. The petitioner is having no criminal

          antecedent.

                       5. Learned counsel for the petitioner has relied on an

          order of this Court passed in Cr. Misc. No. 86288 of 2025

          wherein this Court has held that according to a Central

          Government Notification, the recovery of cough syrup

          containing codeine comes in the ambit Drugs and Cosmetics Act

          and the said notification is being reproduced hereunder for

          reference:-

                          “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, Berry Safe cough Syrup containing

          codeine has been recovered and the concentration of the codeine
Patna High Court CR. MISC. No.36592 of 2026(2) dt.22-06-2026
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          in this drug is approximately 0.2% which is less than 2.5% as

          provided in the above notification.

                       7. Learned counsel for the petitioner has further been

          submitted that the petitioner is also having license under Drugs

          and Cosmetics Act. From perusal of the license furnished by the

          petitioner, it is clear that the said license was issued on

          09.1.2025 and is valid till 08.01.2030 and the petitioner is

          licensed to sell, stock or exhibit or offer for sale or distribute by

          wholesale trucks other than those specified in Schedule C(1)

          and X on the premises. Learned counsel has submitted that the

          drug which has been recovered does not fall in the exception

          schedule rather this is merely a Schedule-H drug.

                       8. 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

          petitioners is commercial quantity.

                       9. 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
Patna High Court CR. MISC. No.36592 of 2026(2) dt.22-06-2026
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          quantities. The Central Government has power to issue

          notification time to time.

                       10. Having heard learned counsel for the parties and

          in the facts and circumstances of the case as stated above, this

          Court is inclined to enlarge the petitioner on bail. The petitioner

          is directed to surrender in the Court below within a period of

          four weeks from today and in the event of his arrest or surrender

          in connection with Sadar P.S. Case No. 498 of 2025, he will be

          enlarged on bail on furnishing bail bond of Rs. 10,000/- (Rupees

          ten thousand) with two sureties of the like amount each to the

          satisfaction of learned Special Judge, NDPS, Purnea subject to

          the conditions as laid down under section 482(2) of B.N.S.S.

                       11. 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
            Patna High Court CR. MISC. No.36592 of 2026(2) dt.22-06-2026
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                      whereas, police is invariably misusing the procedure.



                                            (Ashok Kumar Pandey, J)
Shubham/-

U     T


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