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Patna High Court

Abu Basar @ Md. BasarversusThe State of Bihar

Decided
Disposal
BAIL GRANTED

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

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.
Patna High Court CR. MISC. No.73890 of 2025(8) dt.27-04-2026
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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
Patna High Court CR. MISC. No.73890 of 2025(8) dt.27-04-2026
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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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