Patna High Court
Mukesh KumarversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The court held that the petitioner is entitled to bail because the seized syrup, containing codeine below 2.5%, does not constitute contraband under the NDPS Act.
Summary
The Patna High Court considered an application for bail filed by Mukesh Kumar, who was arrested in connection with a case alleging possession of 1,600 litres of Wiscorex cough syrup containing codeine. The prosecution argued that the seized syrup constituted contraband under the NDPS Act and that the petitioner was liable under Section 111 of the B.N.S. and Section 20(c) of the NDPS Act. The petitioner contended that he was merely the driver, that the codeine concentration (0.2%) was below the 2.5% threshold prescribed in Notification S.O. 826(E), and that the police had not complied with Section 105 of the B.N.S. during seizure. The State relied on Supreme Court precedent (Hira Singh v. Union of India) that any non‑toxic material mixed with contraband renders the whole quantity contraband. The Court held that, given the low concentration of codeine and the procedural deficiencies, the seizure did not amount to contraband and the petitioner was entitled to bail. Accordingly, the Court ordered the petitioner to be released on bail upon furnishing a bond of Rs. 10,000 with two sureties. The judgment also highlighted that such cases might be more appropriately dealt with under the Drugs and Cosmetic Act rather than the NDPS Act.
Issues considered
- Does the seizure of cough syrup containing 0.2% codeine fall within the definition of contraband under the NDPS Act?
- Is the petitioner liable for offences under Section 111 of the B.N.S. and Section 20(c) of the NDPS Act?
- Should bail be granted considering the nature of the alleged offence and the petitioner’s custody status?
- Did the police comply with the procedural requirements of Section 105 of the B.N.S. in making the seizure?
Legislation cited
- B.N.S. — s. 105, 111
- Drugs and Cosmetic Act
- N.D.P.S. Act — s. 20(c), 2(d)
Subjects
- bail
- NDPS Act
- codeine concentration
- contraband
- Section 111 B.N.S.
- Section 20(c) NDPS
- Section 105 B.N.S.
- Drugs and Cosmetic Act
- procedural lapse
- cough syrup
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.40398 of 2026
Arising Out of PS. Case No.-58 Year-2026 Thana- MALSALAMI District- Patna
======================================================
Mukesh Kumar Son of Sitaram Ray Resident of Village- Mohanpur
Raghopur, Ward No. 10, P.S.- Raghopur, District- Vaishali.
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Ganesh Prasad Singh, Advocate
For the Opposite Party/s : Mr. Surendra Kumar, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
2 24-06-2026 Heard learned counsel for the petitioner and learned
APP for the State.
2. The petitioner has prayed for bail in connection
with Malsalami P.S. Case No. 58 of 2026 registered for the
offence punishable under Section 111 of B.N.S. and Section
20(c) of the N.D.P.S. Act.
3. The case of the prosecution, in short, is that from
the Bolero vehicle bearing Reg. No. BR-01-GM-8821, 160
bottles of Wiscorex Cough Syrup of 100 ml in each bottle kept
in 100 cartoons (altogether 1600 liters) containing codeine were
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
Patna High Court CR. MISC. No.40398 of 2026(2) dt.24-06-2026
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case. Learned counsel for the petitioner has submitted that
petitioner is the driver of the vehicle. Nothing has been
recovered from his possession and on being asked, three
apprehended accused persons including the peititioner have
disclosed that they have brought the syrup from Himachal
Pradesh. It has further been submitted that from perusal of the
seizure list, it will transpire that the seizure witnesses are not
independent witness rather they are police personnel. Police has
also not followed the provision of Section 105 of B.N.S.S. while
making seizure. Moreover, petitioner is languishing in judicial
custody since 30.01.2026.
5. Learned counsel for the petitioner has 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
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concentration of not more than 2.5 % in undivided preparations
and which have been established in therapeutic practice.
6. In this case, Wiscorex Cough Syrup has been
recovered from the Bolero 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
form the possession of this 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
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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
Exclusive Special (NDPS) Court No.II, Patna in connection
with Malsalami P.S. Case No. 58 of 2026.
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)
lata/-
U T
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