Patna High Court
Raja Nayak @ Rohit Kumar NayakversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The petitioner is entitled to bail because the seized cough syrups do not constitute contraband under the NDPS Act due to the statutory exemption.
Summary
The petitioner, Raja Nayak, was arrested after police seized 67 bottles of cough syrups (Korcof, Onerex, Wixdin) containing codeine from a gumti, and he was charged under Sections 20 and 22 of the NDPS Act. He contended that the syrups contained only 0.2% codeine, well below the 2.5% threshold prescribed in Central Government Notification S.O. 826(E) 1985, and therefore should be treated as exempted manufactured drugs, not contraband. He also argued that the seizure was improper because the seizure witnesses were police officers and Section 105 of the Bihar Narcotic Substances Act was not complied with. The State relied on the Supreme Court’s decision in Hira Singh v. Union of India, asserting that any non‑toxic material mixed with a contraband makes the whole quantity contraband and that the seized amount constituted a commercial quantity. The Court examined the statutory definition under Section 2(d) of the NDPS Act and the exemption notification, concluded that the seized syrups did not fall within the ambit of contraband, and consequently ordered the petitioner’s release on bail upon furnishing a bond. The judgment also observed that such cases might be more appropriately dealt with under the Drugs and Cosmetic Act rather than the NDPS Act.
Issues considered
- Whether cough syrups containing 0.2% codeine fall within the definition of ‘contraband’ under the NDPS Act.
- Whether the exemption notification S.O. 826(E) 1985 shields the seized syrups from prosecution under Sections 20 and 22 of the NDPS Act.
- Whether the seizure complied with procedural requirements of Section 105 of the Bihar Narcotic Substances Act.
- Whether bail should be granted to the petitioner pending trial.
Legislation cited
- Bihar Narcotic Substances Act — s. 105
- Narcotic Drugs and Psychotropic Substances Act — s. 20, 22, 2(d)
Subjects
- bail
- NDPS Act
- codeine
- contraband
- exemption notification
- seizure procedure
- Section 105
- commercial quantity
- cough syrup
- drug law
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.77145 of 2025
Arising Out of PS. Case No.-144 Year-2025 Thana- LAUKAHA District- Madhubani
======================================================
Raja Nayak @ Rohit Kumar Nayak, S/o Ram Nath Nayak, R/o Vill-
Laxmipur, P.S.- Laukaha, Distt- Madhubani, Bihar
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Murlidhar Mishra, Advocate
For the Opposite Party/s : Mr. Satya Nand Shukla, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
3 16-01-2026 Heard learned counsel for the petitioner and learned
APP for the State.
2. The petitioner has prayed for bail in connection
with Laukaha P.S. Case No. 144 of 2025 registered for the
offence punishable under Sections 20 and 22 of the N.D.P.S.
Act.
3. The case of the prosecution in short is that from a
gumti, Korcof Syrup 100 ml each 24 bottles, Onerex Syrup 100
ml each 16 bottles and WixdIN Syrup 100 ml each 27 bottles
altogether 67 bottles 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. Learned
counsel for the petitioner has submitted that from perusal of the
Patna High Court CR. MISC. No.77145 of 2025(3) dt.16-01-2026
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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 having no criminal antecedent and
he is languishing in judicial custody since 06.09.2025.
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, Korcof, Onerex and Wixdin Cough
Syrup have been recovered from a gumti and the concentration
of the codeine in these drugs is approximately 0.2% which is
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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
Principal Sessions Judge, Madhubani in connection with
Laukaha P.S. Case No. 144 of 2025.
Patna High Court CR. MISC. No.77145 of 2025(3) dt.16-01-2026
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)
lata/-
U T
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