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Patna High Court

Deepak KumarversusThe State of Bihar

Decided
Disposal
ALLOWED

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

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
                                            3/4




          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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