Patna High Court
Deepak KumarversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The court held that the low‑concentration codeine preparations do not constitute contraband or a commercial quantity under the NDPS Act, and therefore the petitioner is entitled to bail.
Summary
The petitioner, Deepak Kumar, was arrested for alleged possession of 17 bottles of Planokuf syrup and Spasmo‑Proxyvon Plus tablets, claimed to be under Section 21(a) of the NDPS Act. He argued that the seized drugs contained codeine at a concentration of 0.2%, well below the 2.5% threshold prescribed in Notification S.O. 826(E) and therefore did not constitute contraband or a commercial quantity. The State contended that, per the Supreme Court’s decision in Hira Singh v. Union of India, any non‑toxic material mixed with a contraband renders the entire quantity as contraband, justifying the charge. The court examined the applicability of Section 2(d) of the NDPS Act and the requirement of a proper seizure under Section 105 of the BNSS, finding the police seizure procedurally defective. Considering the low concentration of codeine and the petitioner’s lack of prior criminal record, the court granted bail on a bond of Rs. 10,000 with two sureties.
Issues considered
- Whether the seized codeine‑containing preparations fall within the definition of contraband under the NDPS Act.
- Whether the quantity recovered constitutes a 'commercial quantity' for the purposes of Section 21(a).
- Whether the police complied with Section 105 of the BNSS in effecting the seizure.
- Whether the petitioner is entitled to bail pending trial.
Legislation cited
- Bihar Narcotic Substances (Seizure) Act — s. 105
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 21(a), 2(d)
Subjects
- bail
- NDPS Act
- codeine
- contraband
- commercial quantity
- seizure procedure
- Section 105
- Schedule H
- drug concentration
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.42223 of 2026
Arising Out of PS. Case No.-199 Year-2026 Thana- DHAKA District- East Champaran
======================================================
Deepak Kumar S/O Hari Shankar Prasad Resident Of Ward No 15, Sitalpatti,
Dhaka, Ps- Dhaka, Dist- East Champaran
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Purushottam Kumar Jha, Advocate
Mr. Avanindra Kumar Jha, Advocate
Mr. Bishwash Vijeta, Advocate
Mr. Sudhir Kumar Gupta, Advocate
Mr. Ram Naresh Jha, Advocate
For the Opposite Party/s : Mr. Abhay 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 NDPS G.R. Case No. 143 of 2026, arising out of Dhaka
P.S. Case No. 199 of 2026 registered for the offence punishable
under Section 21(a) of the NDPS Act.
3. The case of the prosecution, in short, is that 17 pcs
of PLANOKUF syrup and Spasmo-Proxyvon plus tablets total
94 pcs.were recovered from the medical hall of the petitioner.
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.42223 of 2026(2) dt.24-06-2026
2/4
case. He also submits that the petitioner has purchased the said
tablets from a medical shop. He further submits that nothing has
been recovered from the possession of the petitioner. The
witnesses of the seizure list are police personnel, and the police
have not complied with Section 105 of the BNSS while making
the seizure. As far as the tablet Spasmo-Proxyvon Plus is
concerned, the same is less than commercial quantity as per
NDPS Act. Moreover, a statement has been made in para 3 of
the petition that petitioner has no criminal antecedent and he is
languishing in judicial custody since 13.04.2026.
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
Patna High Court CR. MISC. No.42223 of 2026(2) dt.24-06-2026
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have been established in therapeutic practice.
6. In this case, Planokuf syrup containing codeine 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.
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
petitioners 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. 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
Patna High Court CR. MISC. No.42223 of 2026(2) dt.24-06-2026
4/4
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.
10. 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 East Champaran, Motihari, in connection with NDPS
G.R. Case No. 143 of 2026, arising out of Dhaka P.S. Case No.
199 of 2026.
(Ashok Kumar Pandey, J)
durgesh/-
U T
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