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Patna High Court

Rajesh Kumar @ Mukesh KumarversusThe State of Bihar

Decided
Disposal
ALLOWED

Holding

The court held that the seized cough syrup does not fall within the definition of contraband under the NDPS Act and therefore granted bail to the petitioner.

Summary

Petitioner Rajesh Kumar was arrested in Supaul for alleged possession of 240 bottles of Wiscof cough syrup containing codeine, alleged under Sections 21(c), 25 and 29 of the NDPS Act. The petitioner contended that the syrup, with a codeine concentration of about 0.2%, falls within the exemption notified under S.O. 826(E) dated 14.11.1985, and that the seizure was made by police officers who were not independent witnesses and without complying with Section 105 of the B.N.S.S. The State argued, relying on the Supreme Court’s Hira Singh decision, that any non‑toxic material mixed with contraband makes the whole quantity contraband and that a commercial quantity was recovered. The Court examined the statutory definition under Section 2(d) of the NDPS Act and the central government notification, concluding that the syrup does not constitute contraband. Consequently, the Court granted bail to the petitioner on a bond of Rs.10,000 with two sureties, and noted that such cases might be more appropriately dealt with under the Drugs and Cosmetic Act.

Issues considered

  • Whether cough syrup containing codeine at 0.2% concentration is deemed contraband under the NDPS Act.
  • Whether the petitioner is entitled to bail pending trial.
  • Whether the seizure complied with procedural requirements of Section 105 of the B.N.S.S.
  • Whether the appropriate statutory regime for the case is the NDPS Act or the Drugs and Cosmetic Act.

Legislation cited

Subjects

  • NDPS Act
  • bail
  • codeine
  • cough syrup
  • contraband
  • exemption
  • Section 2(d)
  • Section 105
  • Drugs and Cosmetic Act
  • commercial quantity

Judgment

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                              CRIMINAL MISCELLANEOUS No.6732 of 2026
                        Arising Out of PS. Case No.-549 Year-2025 Thana- SUPAUL District- Supaul
                 ======================================================
                 Rajesh Kumar @ Mukesh Kumar, S/O Ramesh Prasad @ Shiv Narayan
                 Yadav @ Ramesh Prasad Yadav, Resident of Village- Amha (Amaha) Ward
                 No. 05, P.S.- Laukaha, District- Supaul, Bihar

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

                                                        ... ... Opposite Party/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s     :        Mr. Kuldeep Kumar, Advocate
                 For the Opposite Party/s :        Mr. Anand Kishore Choudhary, APP
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
                                       ORAL ORDER

2   10-02-2026                  Heard learned counsel for the petitioner and learned

                   APP for the State.

                                2. The petitioner has prayed for bail in connection

                   with Supaul P.S. Case No.549 of 2025 registered for the offence

                   punishable under Sections 21(c), 25 and 29 of the N.D.P.S. Act.

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

                   E-rickshaw where two persons were sitting except the driver,

                   altogether 240 bottles of Wiscof Cough Syrup containing

                   codeine were recovered.

                                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

                   case. Nothing has been recovered from his possession. It has
Patna High Court CR. MISC. No.6732 of 2026(2) dt.10-02-2026
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          further been submitted that from perusal 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

          06.11.2025.

                       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, Codeine Phosphate & Triprolidine

          Hydrochloride Syrup (Wiscof) has been recovered from an E-

          rickshaw and the concentration of the codeine in this drug is
Patna High Court CR. MISC. No.6732 of 2026(2) dt.10-02-2026
                                            3/4




          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 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), Supaul in connection with Supaul P.S. Case No.
             Patna High Court CR. MISC. No.6732 of 2026(2) dt.10-02-2026
                                                         4/4




                       549 of 2025.

                                    10. 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

                       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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