Patna High Court
Md. SahebversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
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
- B.N.S.S. — s. 482(2)
- Drugs and Cosmetics Act
- Narcotic Drugs and Psychotropic Substances Act — s. 21(c), 29, 2(d), 482(2), 8(c)
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
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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
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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
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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
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whereas, police is invariably misusing the procedure.
(Ashok Kumar Pandey, J)
Shubham/-
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