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Patna High Court

Asraful @ UsmanversusThe State of Bihar

Decided
Disposal
ALLOWED

Holding

The court granted bail, holding that the low concentration of codeine exempted the syrup from being deemed contraband under the NDPS Act and that the seizure was procedurally defective.

Summary

The petitioner, Asraful @ Usman, applied for bail in a case registered under Section 21(c) of the NDPS Act for alleged possession of 185 bottles of codeine‑containing cough syrup recovered from a bike. The petitioner argued that the seizure was improper, the witnesses were police officers, and that the seizure violated Section 105 of the Bihar Narcotic Substances Act. He further contended that the cough syrup, containing only 0.2% codeine, fell within the exemption notified under S.O. 826(E) dated 14‑11‑1985, and therefore did not constitute contraband under the NDPS Act. The State relied on the Supreme Court decision in Hira Singh v. Union of India, asserting that any non‑toxic material mixed with contraband makes the whole quantity contraband and that the seized amount was a commercial quantity. The High Court, after considering the low concentration, the statutory exemption, and the procedural lapses in seizure, granted bail on a bond of Rs.10,000 with two sureties, noting that such cases might be more appropriately dealt with under the Drugs and Cosmetic Act.

Issues considered

  • Whether the seizure of codeine‑containing cough syrup complied with Section 105 of the Bihar Narcotic Substances Act.
  • Whether the cough syrup, containing 0.2% codeine, falls within the exemption notified under S.O. 826(E) and is therefore not contraband under the NDPS Act.
  • Whether the quantity seized constitutes a commercial quantity making the petitioner liable under Section 21(c) of the NDPS Act.
  • Whether the petitioner is entitled to bail despite the alleged possession of a scheduled drug.

Legislation cited

Subjects

  • bail
  • NDPS Act
  • codeine
  • cough syrup
  • contraband
  • seizure
  • Section 105
  • notification exemption
  • Drugs and Cosmetic Act
  • commercial quantity

Judgment

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                              CRIMINAL MISCELLANEOUS No.41734 of 2026
                         Arising Out of PS. Case No.-35 Year-2026 Thana- Sri Nagar District- Purnia
                 ======================================================
                 Asraful @ Usman Son of Md. Abdul Haque Resident of Village- Khanaghat,
                 P.S.- Kasba, District- Purnea (Bihar)

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

                                                        ... ... Opposite Party/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s      :        Mr. N.K. Agrawal, Sr. Advocate
                                                    Mr. Saroj Kumar Choudhary, Advocate
                                                    Mr. Kumar Pradeep, Advocate
                 For the Opposite Party/s :         Mr. Choubey Jawahar, APP
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
                                       ORAL ORDER

2   29-06-2026                   Heard learned senior counsel for the petitioner and

                   learned APP for the State.

                                 2. The petitioner has prayed for bail in connection

                   with Sri Nagar P.S. Case No. 35 of 2026 registered for the

                   offence punishable under Sections 21(c) of the N.D.P.S. Act.

                                 3. The case of the prosecution in short is that from a

                   bike, altogether 185 bottles of BLUCOD-T Cough Syrup 100

                   ml each (18.5 liters) containing codeine were recovered.

                                 4. Learned senior 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. Nothing has been recovered from his possession. Learned

                   senior counsel for the petitioner has submitted that from perusal
Patna High Court CR. MISC. No.41734 of 2026(2) dt.29-06-2026
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          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. Petitioner is languishing in judicial

          custody since 28.03.2026.

                       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

          concentration of not more than 2.5 % in undivided preparations

          and which have been established in therapeutic practice.

                       6. In this case, BLUCOD-T Cough Syrup has been

          recovered from a bike and the concentration of the codeine in

          this drugs is approximately 0.2% which is less than 2.5% as

          provided in the above notification.
Patna High Court CR. MISC. No.41734 of 2026(2) dt.29-06-2026
                                            3/4




                       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

          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 Special

          Judge (NDPS Act), Purnea in connection with Sri Nagar P.S.

          Case No. 35 of 2026.

                       10. Before parting, it is very strange that the cases
             Patna High Court CR. MISC. No.41734 of 2026(2) dt.29-06-2026
                                                         4/4




                       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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