Patna High Court
Abu Basar @ Md. BasarversusThe State of Bihar
- Decided
- Disposal
- BAIL GRANTED
- Bench
- PRAVEEN KUMAR
Holding
The petitioner is entitled to regular bail as the seized preparation is exempt under the Gazette Notification and the quantity is not of a commercial nature.
Summary
Abu Basar was arrested under Sections 8, 21 and 22 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act and Section 111 of the IPC after a raid recovered large quantities of codeine‑containing cough syrup. The petitioner claimed innocence and argued that the seized preparation fell within the exemption granted by Gazette Notification S.O. 826(E) dated 14‑11‑1985, which permits codeine preparations containing not more than 100 mg per dose unit and not exceeding 2.5 % concentration. He submitted that the recovered syrup contained only 0.2 % codeine, amounting to an intermediate quantity of 206.25 g, and cited earlier decisions where bail was granted on the same ground. The State opposed bail. The Court examined the notification, the quantity and concentration of codeine, and the precedent, and concluded that the exemption applied, allowing the petitioner bail on condition of a bond. The application for regular bail was therefore allowed.
Issues considered
- Whether the seized codeine‑containing cough syrup falls within the exemption under Gazette Notification S.O. 826(E) and thus does not constitute an offence under the NDPS Act.
- Whether the quantity of the seized substance qualifies as an intermediate quantity warranting bail.
- Whether the petitioner is entitled to regular bail despite the charges under Sections 8, 21, 22 of the NDPS Act and Section 111 IPC.
Legislation cited
- Indian Penal Code — s. 111
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 21, 22, 8
Subjects
- bail
- NDPS Act
- codeine exemption
- intermediate quantity
- Section 111 IPC
- gazette notification
- criminal procedure
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.73890 of 2025
Arising Out of PS. Case No.-215 Year-2025 Thana- ARARIA District- Araria
======================================================
Abu Basar @ Md. Basar S/o Late Mujibur Rahman R/o Village- Mirja Bhag,
Ward No. 3, Araria, P.S. and District- Araria
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Ajay Kr. Thakur, Advocate
Mr. Ritwaj Raman, Advocate
Mr. Deepak Kumar, Advocate
Mrs. Somali Acharya, Advocate
Mr. Purushottam Kumar, Advocate
For the Opposite Party/s : Mr.Shantanu Kumar, A.P.P.
======================================================
CORAM: HONOURABLE MR. JUSTICE PRAVEEN KUMAR
ORAL ORDER
8 27-04-2026 Heard learned counsel for the petitioner and learned APP
for the State.
2. The petitioner has preferred this application for grant of
regular bail in connection with N.D.P.S Case No. 157 of 2025 arising
out of Araria P.S. Case No. 215 of 2025 registered for the offences
punishable under Sections 8, 21, 22 of the N.D.P.S. Act as well as
Section 111 of the I.P.C.
3. As per the prosecution case, upon a secret information,
the house of this petitioner was raided in the presence of a
Magistrate. It has been alleged that during course of search one
maruti car, one e-rickshaw and in a secret chamber built inside the
house altogether 75 bottles, 150 bottles and 3900 bottles respectively
of codeine containing cough syrup was recovered.
Patna High Court CR. MISC. No.73890 of 2025(8) dt.27-04-2026
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4(i). Learned counsel for the petitioner has submitted that
the petitioner is innocent and has falsely been implicated in this case.
He further submits that the allegation is false. Moreover, this Court
previously by order dated 19.02.2026, considered as follows:-
“Heard learned counsel for the petitioner
and learned APP for the State.
2. Learned counsel for the petitioner
submits that other grounds that as per the gazette
Notification besides No.S.O. 826 (E) dated 14.11.1985
under the Narcotic Drugs and Psychotropic Substances
Act and Rules, 1985, the 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. Thus, in
absence of the same, on this ground alone, the
petitioner should be allowed bail.
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3. A counter affidavit has been filed on
behalf of the State in response to the bail petition but
the same is silent on the aforesaid fact. Learned APP
for the State is directed to file a supplementary counter
affidavit to respond to the issue raised on behalf of the
petitioner with regard to the gazette notification as
aforesaid. Learned counsel for the State is directed to
serve an advance copy of the counter affidavit upon the
learned counsel for the petitioner.
4. Relist on 12.03.2026.”
4. (ii) Subsequently, by order dated 06.04.2026, petitioner
was directed to file a supplementary affidavit. Pursuant to which a
supplementary affidavit has been filed by which Central Government
notification No. S.O. 826 (E) dated 14.11.1985 has been brought on
record and the same reads as under:-
“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:- xxxx
35. Methyl morphine (commonly known as ‘Codeine’)
and Ethyle morhpine and their salts (including
Dionine), all dilutions and preparations except those
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which are compounded with one or more other
ingredients and containing not more than 100
miligrams 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.”
4. (iii) Learned counsel for the petitioner has also drawn
the attention of this Court to various orders passed by this Court vide
Annexures P-3, P-4 and P-7 by which the accused persons having
extended the privilege of bail upon the basis of aforesaid notification.
Moreover, it has been submitted that the amount of codeine
recovered is to the extent of 0.2 per cent and the calculation with
respect to actual amount of codeine has been mentioned in paragraph
18 and referring to that it has been stated that the amount of codeine
recovered from the entire consignment is 206.250 gram which is an
intermediary quantity and much less than the commercial quantity.
Learned counsel for the petitioner has referred to order dated
17.03.2026 passed in Cr. Misc. No. 17746 of 2026 as annexed as
Annexure-P-3 to the supplementary affidavit wherein the same cough
syrup recovered and the quantity so calculated to the extent of 0.2 per
cent has been considered. Learned counsel for the petitioner has
further submitted that the petitioner is in custody since 28.05.2025
and although he is accused in four other cases but not of similar
nature as they all relates to Excise Act and under Section 379 of the
Patna High Court CR. MISC. No.73890 of 2025(8) dt.27-04-2026
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I.P.C.
5. Learned APP for the State has vehemently opposed the
prayer for bail of the petitioner.
6. Heard the parties and perused the record, let the
petitioner above-named, be enlarged on bail on furnishing bail-bonds
of Rs.10,000/- (Rupees Ten Thousand) with two sureties of the like
amount each to the satisfaction of learned District & Sessions Judge-
4th, Araria in connection with N.D.P.S. Case No. 157 of 2025 arising
out of Araria P.S. Case No. 215 of 2025.
7. The application stands allowed.
(Praveen Kumar, J)
vashudha/-
U T
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