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Patna High Court

Md. Dilawar @ Dilawar Ansari @ DilawarversusThe State of Bihar

Decided
Disposal
ALLOWED

Holding

The court held that the cough syrup, containing only 0.2% codeine, is exempted under the notification and does not constitute contraband, warranting the grant of bail.

Summary

The petitioner, Md. Dilawar, was arrested for alleged possession of 2 litres of codeine‑containing cough syrup and charged under sections 8(c) and 21(b) of the NDPS Act. He contended that the syrup contained only 0.2% codeine, falling below the 2.5% threshold prescribed in Notification S.O. 826(E) and therefore was exempted as a manufactured drug, and that the police seizure violated Section 105 of the Bihar Narcotic Substances Act. The State relied on the Supreme Court decision in Hira Singh v. Union of India, arguing that the entire mixture constitutes contraband and that the quantity seized was commercial. The Court examined the statutory definition of contraband, the exemption notification, and the procedural lapse in seizure, concluding that the syrup does not qualify as contraband. Consequently, the Court ordered the petitioner’s release on regular bail upon furnishing a bail bond with two sureties.

Issues considered

  • Whether cough syrup containing 0.2% codeine is deemed contraband under the NDPS Act.
  • Whether the petitioner is eligible for regular bail despite the alleged seizure.
  • Whether the police complied with Section 105 of the Bihar Narcotic Substances Act during seizure.
  • Interpretation of Notification No. S.O. 826(E) regarding exemption of low‑concentration codeine preparations.

Legislation cited

Subjects

  • bail
  • NDPS Act
  • codeine
  • contraband
  • exemption notification
  • Section 105
  • seizure procedure
  • Schedule H
  • Drugs and Cosmetics Act

Judgment

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                              CRIMINAL MISCELLANEOUS No.7633 of 2026
                   Arising Out of PS. Case No.-123 Year-2025 Thana- Sahayak Khajanchi District- Purnia
                 ======================================================
                 Md. Dilawar @ Dilawar Ansari @ Dilawar son of Md. Yaqub @ Md. Yakub
                 Khan @ Yaqub khan Village- Kasai Muhalla Ward No 29, PS -Sahayak
                 Khajanchi, District- Purnea

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

                                                        ... ... Opposite Party/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s     :        Mr.Viveka Nand Singh, Advocate
                 For the Opposite Party/s :        Mr.Raj Kishor Singh, APP
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
                                       ORAL ORDER

3   11-03-2026                    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 8 (c ) and

                   21 (b) of the NDPS Act.

                                3. The case of the prosecution is that from the house

                   of this petitioner altogether 2000 ml (2 liters) LATK OF- Ct

                   cough syrup containing codeine was 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. It is further submitted that nothing has been recovered

                   from the conscious possession of this petitioner and he has no
Patna High Court CR. MISC. No.7633 of 2026(3) dt.11-03-2026
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          concern in any way with the alleged contraband. It is further

          submitted that all the witnesses of the seizure list are police

          personnel and the police have not complied the mandatory

          provision of Section 105 of the BNSS at the time of seizure.

          Moreover, he is languishing in judicial custody since 17.09.2025

          having no criminal antecedent.

                       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, LATK OF- Ct cough syrup has been

          recovered and the concentration of the codeine in this drug is

          approximately 0.2% which is less than 2.5% as provided in the
Patna High Court CR. MISC. No.7633 of 2026(3) dt.11-03-2026
                                            3/4




          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 the

          petitioners 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.

                       11. 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 supplementary Special (NDPS) Case

          No. 176 of 2025 arising out of Sahayak Khajanchi P.S. Case No.

          123 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 3rd District and Additional Sessions

          Judge, In-charge, Purnea.
            Patna High Court CR. MISC. No.7633 of 2026(3) dt.11-03-2026
                                                        4/4




                                   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)
Jagdish/-

U


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