Patna High Court
Ramnandan KumarversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The court held that the cough syrup, containing only 0.2% codeine, does not constitute contraband under the NDPS Act and the petitioner is entitled to bail.
Summary
The petitioner was arrested in connection with the seizure of 96 litres of Zing Cirex‑T cough syrup containing 0.2% codeine, and was charged under Sections 21(c) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act and 317(5) of the Bihar Narcotic Substances (BNS) Act. He contended that he had no criminal antecedent, the seizure violated Section 105 of the BNSS, and that the syrup fell within the exemption notified under S.O. 826(E) dated 14‑11‑1985 because the codeine concentration was below 2.5%. The State argued, relying on the Supreme Court decision in Hira Singh v. Union of India, that any non‑toxic material mixed with a contraband makes the whole quantity a contraband and that the seized amount was commercial. The Court examined the statutory definition under Section 2(d) of the NDPS Act and the central government notification, concluding that the syrup did not qualify as a contraband drug. Consequently, the Court ordered the petitioner to be released on bail upon furnishing a bond of Rs 10,000 with two sureties.
Issues considered
- Whether the cough syrup containing 0.2% codeine falls within the definition of contraband under the NDPS Act.
- Whether the procedural lapse under Section 105 of the BNSS invalidates the charge.
- Whether the petitioner is entitled to bail despite the alleged possession of a commercial quantity of a narcotic preparation.
Legislation cited
- Bihar Narcotic Substances Act — s. 105, 317(5)
- Drugs and Cosmetics Act
- Narcotic Drugs and Psychotropic Substances Act — s. 21(c), 2(d)
Subjects
- bail
- NDPS Act
- codeine concentration
- contraband
- seizure procedure
- Section 105
- notification exemption
- Schedule H
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.38511 of 2026
Arising Out of PS. Case No.-105 Year-2026 Thana- BHUTAHI District- Sitamarhi
======================================================
Ramnandan Kumar S/o Parikshan Mahto R/o vill- Ward no-7, Kanhauli, P.S-
Kanhauli, Dist-Sitamarhi.
... ... Petitioner/s
Versus
The State of Bihar Patna
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Ayush Kumar, Advocate
For the Opposite Party/s : Mr. Jai Narain Thakur, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
2 23-06-2026 Heard learned counsel for the petitioner and learned
APP for the State.
2. The petitioner has prayed for bail in connection
with Bhutahi P.S. Case No. 105 of 2026 registered for the
offence punishable under Sections 21(c) of the N.D.P.S. Act and
Section 317(5) of BNS.
3. The case of the prosecution is that from a four
wheeler vehicle, altogether 96 liters of Zing Cirex-T 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. The petitioner has no concern in any way with the alleged
contraband. There is no independent witness of the seizure list.
Patna High Court CR. MISC. No.38511 of 2026(2) dt.23-06-2026
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Police has not complied section 105 of BNSS while preparing
seizure. A statement has been made in para-3 of this petition that
the petitioner has got no criminal antecedent and he is
languishing in judicial custody since 03.05.2026.
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.
6. In this case, Zing Cirex-T Cough syrup containing
codeine phosphate has been recovered 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.
Patna High Court CR. MISC. No.38511 of 2026(2) dt.23-06-2026
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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
of the like amount each to the satisfaction of the learned
Sessions Judge-cum-Special Judge (NDPS Act), Sitamarhi in
connection with Bhutahi P.S. Case No. 105 of 2026.
10. Before parting, it is very strange that the cases
where cough syrups containing codeine are recovered, the
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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)
Sneha/-
Dolly/-
U T
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