Patna High Court
Safi Ahmad @ Md. Shafi Ahmad @ Shafi AhmadversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The court held that the seized cough syrup does not constitute a narcotic drug within the NDPS Act, and therefore the petitioner is entitled to bail.
Summary
The petitioner, Safi Ahmad, was charged under Sections 21, 22 and 23 of the NDPS Act and Section 111(1) of the Bihar Narcotic Substances Act for allegedly possessing 103 litres of cough syrup containing codeine. The petitioner contended that the seizure was not made in accordance with Section 105 of the BNSS, that the brand and concentration of codeine were not specified, and that the codeine content fell within the limits prescribed in Central Government Notification S.O. 826(E) (i.e., not more than 100 mg per dosage unit and 2.5% concentration), thus not constituting a narcotic drug. The State relied on the Supreme Court decision in Hira Singh v. Union of India, asserting that any non‑toxic material mixed with a contraband makes the whole quantity a commercial quantity, justifying denial of bail. The Court observed that under Section 2(d) of the NDPS Act the drug itself is not a narcotic drug and that the Central Government’s notification governs the classification. Consequently, the Court held that the seized material does not attract NDPS jurisdiction and ordered the petitioner’s release on bail upon furnishing a bond and sureties.
Issues considered
- Whether the cough syrup containing codeine falls within the definition of a narcotic drug under the NDPS Act.
- Whether the quantity seized constitutes a 'commercial quantity' warranting denial of bail.
- Whether the seizure complied with the procedural requirements of Section 105 of the BNSS.
- Whether the petitioner is entitled to regular bail despite the charges.
Legislation cited
- Bihar Narcotic Substances Act — s. 111(1)
- Bihar Narcotic Substances (Control) Act — s. 105
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 21, 22, 23, 2(d)
Subjects
- bail
- NDPS Act
- codeine
- cough syrup
- commercial quantity
- seizure procedure
- Section 105
- Central Government Notification
- non‑narcotic drug
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.4819 of 2026
Arising Out of PS. Case No.-212 Year-2025 Thana- R S P.S. District- Araria
======================================================
Safi Ahmad @ Md. Shafi Ahmad @ Shafi Ahmad S/O Late Md. Shawoor
Alam @ Late Shaour Alam Resident of Islamnagar, Ward No. 26, P.S. and
District- Araria. ... ... Petitioner/s
Versus
The State of Bihar ... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Ranjeet Choubey, Advocate
For the Opposite Party/s : Mr. Ram Sevak Choudhary, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
2 03-02-2026 Heard learned counsel for the petitioner and learned
APP for the State.
2. The petitioner has prayed for regular bail in a case
registered for the offence punishable under Sections 21, 22 and
23 of the NDPS Act and under Section 111(1) of the BNS.
3. The case of the prosecution, in short, is that from
the possession of this petitioner altogether 103 liters cough
syrup containing codeine was recovered.
4. Learned counsel for the petitioner has submitted
that nothing has been recovered from the possession of this
petitioner. From perusal of the seizure list it will transpire that
the witnesses of the seizure list are police personnel and they
have not complied Section 105 of the BNSS while making
seizure. It has further been submitted that though police has
stated that cough syrup containing codeine was recovered but
has not mentioned brand name. Without brand name it cannot be
ascertained as to what was the concentration of codeine in the
Patna High Court CR. MISC. No.4819 of 2026(2) dt.03-02-2026
2/3
said cough syrup. Learned counsel for the petitioner has
submitted that the petitioner is having no criminal antecedent
and he is in judicial custody since 30.11.2025.
5. Learned counsel for the petitioner has submitted
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
following narcotic substances and
preparations to be manufactured
drugs, namely:-
xxx
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 milligrams 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”
6. Learned APP appearing for the State has
vehemently the application for bail and has submitted that in the
Patna High Court CR. MISC. No.4819 of 2026(2) dt.03-02-2026
3/3
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.
7. 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.
8. Considering the aforesaid facts and circumstances
of the case, this court is inclined to enlarge the petitioner on
bail. The above named petitioner is directed to be released on
bail in connection with R.S. P.S. Case No. 212 of 2025 on
furnishing bail bond of Rs.10,000/- (ten thousand) with two
sureties of the like amount each to the satisfaction of learned
Special Judge, NDPS Act, Araria.
(Ashok Kumar Pandey, J)
durgesh/-
U T
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