Patna High Court
Rajesh Kumar @ Mukesh KumarversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
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
- B.N.S.S. — s. 105
- Narcotic Drugs and Psychotropic Substances Act — s. 21(c), 25, 29, 2(d)
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
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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.
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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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