Patna High Court
Amar Deep Sharma @ Lalu SharmaversusThe State of Bihar
- Decided
- Disposal
- BAIL GRANTED
- Bench
- S B P SINGH
Holding
The Court granted regular bail to the petitioner subject to the stipulated conditions.
Summary
The petitioner, Amar Deep Sharma, was arrested in connection with a NDND‑PS case alleging possession of 220 bottles of Onerex cough syrup containing codeine. He contended that the syrup is exempt under Notification S.O. 826(E) 1985 because its codeine concentration (0.2%) is below the 2.5% threshold for manufactured drugs, and that the contraband was recovered from a flat not his residence. The State opposed bail, relying on the Supreme Court’s decision in Hira Singh v. Union of India, which treats any non‑toxic material mixed with a contraband as part of the contraband and deems the quantity commercial. The Court examined Section 2(d) of the NDPS Act and the scope of the notification, concluding that the exemption argument was not decisive for bail. Accordingly, the Court granted regular bail on a cash bond of Rs 10,000 with two sureties, subject to conditions of personal appearance and a family surety.
Issues considered
- Whether the Onerex cough syrup falls within the exemption provided by Notification S.O. 826(E) 1985 under the NDPS Act.
- Whether the quantity recovered constitutes a commercial quantity rendering bail inappropriate.
- Whether the petitioner is entitled to regular bail despite the allegations under Sections 8(C), 29, 35 and 21(C) of the NDPS Act.
Legislation cited
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 21(C), 29, 2(d), 35, 8(C)
Subjects
- NDPS Act
- bail
- codeine
- cough syrup
- exemption
- commercial quantity
- Section 2(d)
- Notification S.O. 826(E)
- contraband
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.77236 of 2025
Arising Out of PS. Case No.-136 Year-2025 Thana- DARBHANGA District- Darbhanga
======================================================
Amar Deep Sharma @ Lalu Sharma S/o Late Jai Prakash Thakur R/o Mohalla
- Ratnopatti, P.S - Town, District - Darbhanga
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mrs. Mili Kumari
For the Opposite Party/s : Mr. Nawal Kishore Prasad
======================================================
CORAM: HONOURABLE MR. JUSTICE S. B. PD. SINGH
ORAL ORDER
3 21-01-2026 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 Darbhanga Town P.S.
Case No. 136 of 2025 registered for the offences punishable
under Sections 8(C), 29, 35 and 21(C) of the NDPS Act.
3. As per the allegation made in the F.I.R., there is
recovery of 220 bottles of Onerex Cough Syrup (100 ml), and
other contraband materials which is the subject matter of the
present case.
4. Learned counsel for the petitioner submits that the
petitioner is innocent and has been falsely implicated in the
present case. It is contended that no incriminating article has
been recovered from the conscious possession of the petitioner;
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the material was allegedly recovered from a semi-constructed
two-room flat, which is not the residential house of the
petitioner. Petitioner is in custody since 28.07.2025 and a
statement has been made in para 3 of the bail petition that
petitioner has clean antecedent.
5. Learned counsel for the petitioner has also
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, Onerex 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
opposed 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. Keeping in view the aforesaid facts and considering
the period under custody, let the petitioner, above named, be
released on bail on furnishing bail bonds of Rs. 10,000/- (Ten
Thousand) with two sureties of the like amount each to the
satisfaction of learned District & Additional Sessions Judge-
I/Special Judge, NDPS, Darbhanga in connection with
Darbhanga Town P.S. Case No. 136 of 2025 subject to the
following conditions :-
(i). Petitioner will remain physically present in trial on
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each and every date till the disposal of the case failing which, on
two consecutive dates without reasonable cause, the bail bond of
the petitioner may be cancelled by the Trial Court.
(ii). One of the bailor shall be his family member.
(S. B. Pd. Singh, J)
Ankit Kumar/-
U T
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