Patna High Court
Md. JasimversusThe State of Bihar
- Decided
- Disposal
- BAIL GRANTED
- Bench
- RAJESH KUMAR VERMA
Holding
Bail was granted because the seized cough syrup contained only 0.2% codeine, below the 2.5% exemption limit, and the quantity was less than the commercial quantity, so the NDPS provisions did not preclude bail.
Summary
Petitioners Md. Jasim and Santosh were arrested on 1 February 2026 in connection with an NDPS case alleging possession of 96 litres of codeine‑containing cough syrup. The prosecution alleged offences under Sections 8(C), 21(C), 22(C), 25 and 29 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act. The petitioners contended that the syrup contained only 0.2% codeine, well below the 2.5% threshold specified in Central Government Notification S.O. 826(E) 1985, and therefore the matter should fall under the Drugs and Cosmetic Act, not the NDPS Act. The court examined the quantity recovered, noted it was less than the commercial quantity, and accepted the contention that the low concentration exempted the case from NDPS provisions. Consequently, the court granted bail to both petitioners on a bond of Rs 10,000 each with two sureties, subject to conditions regarding cooperation with the trial and verification of antecedents. The bail order was issued without delay for verification.
Issues considered
- What is the applicability of the NDPS Act to the possession of codeine‑containing cough syrup with a concentration of 0.2%?
- Does the quantity of the seized substance constitute a 'commercial quantity' under the NDPS Act, warranting denial of bail?
- Is the petitioner's bail justified despite the charges under Sections 8(C), 21(C), 22(C), 25 and 29 of the NDPS Act?
Legislation cited
- Drugs and Cosmetic Act
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 21(C), 22(C), 25, 29, 37, 8(C)
Subjects
- bail
- NDPS Act
- codeine concentration
- commercial quantity
- Drugs and Cosmetic Act
- notification S.O. 826(E)
- presumption of innocence
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.40850 of 2026
Arising Out of PS. Case No.-28 Year-2026 Thana- KISHANPUR District- Supaul
======================================================
1. Md. Jasim S/O Md. Nijamuddin @ Nijauddin R/O Village- Sonarpatti, Ward
No.02, P.S.-Simraha, District- Araria.
2. Santosh Rishidev S/O Mangal Rishidev R/O Village- Mirjapur Kothi, Ward
No. 02, P.S.- Simraha, Distt.- Araria.
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Md Shadab Alam Wazdi, Advocate
For the Opposite Party/s : Mr. Rajiv Nayan, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJESH KUMAR VERMA
ORAL ORDER
2 02-07-2026 Heard Mr. Md Shadab Alam Wazdi, learned counsel
for the petitioners and Mr. Rajiv Nayan, learned APP for the
State.
2. Petitioners seek bail, who are in custody since
01.02.2026, in connection with NDPS Case No. 25 of 2026
arising out of Kishanpur P.S. Case No. 28 of 2026, F.I.R. dated
31.01.2026 registered for the offences punishable under
Sections 8(C ), 21 (C), 22 (C , 25, 29 of the N.D.P.S. Act.
3. The case relates to recovery of 160-160 sealed
bottles of codeine containing Cough Syrup total 960 bottles
marked Triprolidine Hydrochloride & Codeine Phosphate Syrup
WISCOREX Cough Syrup.
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4. Learned counsel for the petitioners submits that the
petitioners have clean antecedents and the allegation as alleged
in the F.I.R. is false and fabricated and the petitioners have not
committed any offence as alleged in the F.I.R. As per allegation
in the F.I.R., 160-160 sealed bottles of codeine containing
Cough Syrup total 960 bottles marked Triprolidine
Hydrochloride & Codeine Phosphate Syrup WISCOREX Cough
Syrup were recovered from the place of occurrence. Learned
counsel for the petitioner further submits that altogether total
quantity of 96 litres of Cough Syrup was recovered and as per
calculation 96 litres of Cough Syrup contains 0.2% of Codeine
which is not the commercial quantity so there is no embargo
under Section 37 of the N.D.S.P.S. Act to enlarge the petitioner
on bail. He further submits that the Central Government has
issued Notification No. S.O. 826(E) dated 14.11.1985 which is
given hereunder:-
“S.O. 826(E). - In Exercise of the
powers conferred by sub-clause (b) of
clause (xi) of section 2 of the Narcotic
Drugs and Psychotropic Substances Act,
1985 (61 of 1985), the Central
Government hereby declares the
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following narcotic substances and
preparations to be manufactured drugs,
namely :-
xxxx
35. Methyl morphine (commonly known
as ‘Codeine’) and Ethyle morphine and
their salts (including Dionine), all
dilutions and preparations except those
which are compounded with one or more
other ingredients and containing not more
than 100 miligrams of the drug per
dosage unit, and with a concentration of
not more than 2.5% in undivided
preparations and which have been
established in Therapeutic practice.
xxx”
5. In this case, Codeine phosphate cough syrup 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 so the present case does not fall under the
N.D.P.S. Act which falls under the Drugs and Cosmetic Act and
the police after investigation submitted chargesheet against the
Patna High Court CR. MISC. No.40850 of 2026(2) dt.02-07-2026
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petitioner and the petitioner is in custody since 01.02.2026.
6. The learned Additional Public Prosecutor for the
State has vehemently opposed the prayer for bail of the
petitioner.
7. Considering the facts and circumstances of the case
and the fact that the recovered contraband is less than the
commercial quantity as well as period of custody, let the
petitioners, above named, be released on bail on furnishing bail
bond of Rs. 10,000/- (Rupees Ten Thousand) each with two
sureties of the like amount each to the satisfaction of learned
A.D.J.-III, Supaul in connection with NDPS Case No. 25 of
2026 arising out of Kishanpur P.S. Case No. 28 of 2026, subject
to the following conditions :-
(1) Petitioners shall co-operate in the trial and shall
be properly represented on each and every date fixed by the
Court and shall remain physically present as directed by the
Court and on their absence on two consecutive dates without
sufficient reason, their bail bonds shall be cancelled by the
Court below.
(2) If the petitioners tamper with the evidence or the
witness, in that case, the prosecution will be at liberty to move
for cancellation of bail.
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(3) And, further condition that the court below shall
verify the criminal antecedent of the petitioners and in case at
any stage, it is found that the petitioners have concealed their
criminal antecedents, the court below shall take step for
cancellation of bail bond of the petitioner. However, the
acceptance of bail bonds in terms of the above-mentioned order
shall not be delayed for purpose of or in the name of
verification.
(Rajesh Kumar Verma, J)
Ibrar//-
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