Patna High Court
Asraful @ UsmanversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
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
- Bihar Narcotic Substances Act — s. 105
- Drugs and Cosmetic Act
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 21(c), 2(d)
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
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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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