Patna High Court
Md. Dilawar @ Dilawar Ansari @ DilawarversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
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
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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
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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.
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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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