Created by Fuzzy Cloud

Patna High Court

Raja Nayak @ Rohit Kumar NayakversusThe State of Bihar

Decided
Disposal
ALLOWED

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

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
                                            2/4




          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
Patna High Court CR. MISC. No.77145 of 2025(3) dt.16-01-2026
                                            3/4




          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


Continue reading with your account

Sign in to read the full judgment. It’s free.

Sign in to read

Checking your session…

For a signed copy suitable for filing, refer to the court's website.