Patna High Court
Kamal GuptaversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- SOURENDRA PANDEY
Holding
The seizure of the codeine‑containing cough syrup does not fall within the definition of a narcotic drug under the NDPS Act, and therefore the cognizance and charge sheet are quashed.
Summary
The Patna High Court considered applications for quashing the cognizance and charge sheet filed by the Sessions Judge‑cum‑Special Judge, NDPS, Madhepura in a case where large quantities of codeine‑containing cough syrup were seized from a truck and a Tata Magic vehicle. The petitioners, including Kamal Gupta (a logistics director) and two drug distributors, argued that the seized syrup was a legitimate medicinal product falling within the Central Government notification that exempts codeine preparations containing not more than 100 mg per dosage unit from being classified as narcotic drugs. The State contended that the seizure was valid under the Bihar Prohibition and Excise Act, 2018, which had listed codeine‑containing medicines as intoxicants. The Court examined the provisions of the NDPS Act, particularly Section 8, and held that the syrup, containing only 10 mg of codeine per 5 ml dose, does not meet the definition of a narcotic drug and therefore the NDPS provisions are inapplicable. Relying on earlier judgments that quashed similar prosecutions, the Court found that proceeding with the case would amount to an abuse of process and consequently quashed the order of cognizance and the charge sheet against all petitioners.
Issues considered
- Whether codeine‑containing cough syrup with 10 mg per dosage unit qualifies as a narcotic drug under Section 8 of the NDPS Act.
- Whether the seizure and subsequent charge under the NDPS Act and the Bihar Prohibition and Excise Act, 2018, are legally valid.
- Whether the FIR and cognizance were properly instituted given the medicinal nature of the seized product.
Legislation cited
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 21(c), 22(c), 23, 24, 25, 27(A), 29, 2(xi)(b), 8(c)
Subjects
- NDPS Act
- codeine
- cough syrup
- narcotic drug exemption
- Bihar Prohibition and Excise Act
- quashing of criminal proceedings
- abuse of process
- medicinal product
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.83580 of 2024
Arising Out of PS. Case No.-228 Year-2020 Thana- SINGHESHWAR District- Madhepura
======================================================
Kamal Gupta S/O Suresh Chandra Gupta Resident of F- 62, 1st Floor, P.S-
Rajouri Garden, Tagore Garden, New Delhi, Distt.- West Delhi, Delhi.
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
with
CRIMINAL MISCELLANEOUS No. 5408 of 2023
Arising Out of PS. Case No.-228 Year-2020 Thana- SINGHESHWAR District- Madhepura
======================================================
1. BIMAL KUMAR VERMA Son of Lalu Prasad Verma Resident of Azad
Nagar Ward No.- 09, Near Chaiti Durga Asthan, Azad Nagar, Police Station
- Madhepura, District - Madhepura.
2. Rupesh Kumar Son of Shivshankar Sahay Resident of Near Abhyas Madhya
Vidyalay, Ward No.- 12, Azad Nagar, Police Station - Madhepura, District -
Madhepura.
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
(In CRIMINAL MISCELLANEOUS No. 83580 of 2024)
For the Petitioner/s : Mr. Sanchay Srivastava, Advocate
Ms. Sonali Priya, Advocate
Mr. Sushant Srivastava, Advocate
Mr. Abhiyanshu Ranjan, Advocate
For the Opposite Party/s : Mr. Nawal Kishore Prasad, APP
(In CRIMINAL MISCELLANEOUS No. 5408 of 2023)
For the Petitioner/s : Mr. Siya Ram Sahi, Sr. Advocate
Mr. Anirudh Kumar Sinha, Advocate
For the Opposite Party/s : Mr. Ram Anurag Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE SOURENDRA PANDEY
CAV JUDGMENT
Date : ...-02-2026
Heard learned counsel for the petitioners and the learned
APP appearing on behalf of the State.
2. The present applications have been preferred for
quashing and to set aside the order of cognizance dated 22.08.2022
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passed by the learned Sessions Judge-cum-Special Judge, NDPS,
Madhepura in connection with NDPS Case No. 15/2020(S)/CIS
No. 15/2021, arising out of Singheshwar P.S. Case No. 228 of
2020 by which learned Sessions Judge took cognizance under
Sections 8(c), 21(c), 22(c), 23, 24, 25, 27(A) and 29 of the
Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS
Act, 1985) and Section 30(a) of the Bihar Prohibition and Excise
Act, 2018 and for quashing the order/form of charge with three
heads dated 10.09.2024 by which charge has been framed under
Sections 21(c), 22(c) of the Narcotics Drugs and Psychotropic
Substances Act and Section 30(a) of the Bihar Prohibition and
Excise Act, 2018.
3. The facts giving rise to the present application is to
the effect that from a written complaint lodged by Gangasagar
Chaudhary, A.S.I., Singheshwar Police Station stating that on
27.09.2020 at about 16:30 hours, while on patrolling duty, he
received a secret information that a large quantity of codeine-based
intoxicants was being transported in a container truck (No.
HR55W/9959) and a Tata Magic vehicle to the house of Tarun
Singh at Village Rampatti, Ward No. 05. After informing senior
officers, including the Circle Officer, he proceeded towards the
spot and found out that certain cartons were being unloaded from
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the container truck and loaded into the Tata Magic by Tarun Singh,
Bimal Kumar, Mukesh Singh, Suman Das and others. On seeing
the police, the accused persons tried to flee, however, one person,
Suryamani Pandey, driver of the container truck, was apprehended.
Subsequently, in the presence of two independent witnesses, Babul
Kumar and Munna Yadav, the informant and the Circle Officer
conducted personal searches before proceeding further.
4. That after the search following items were seized,
which are as follows:
275 cartoons of Wiscoff Company’s Codeine Phosphate
& Triprolidine Hydrocloride Syrup.
5. Thereafter, following due procedure and in the
presence of the Magistrate and two independent witnesses, the
search of the white Tata Magic vehicle (Engine No. 275IDI07-
NRYSJ7470; Chassis No. illegible) was conducted. During the
search, seven cartons containing Wiscof company’s Codeine
Phosphate and Triprolidine Hydrochloride syrup were recovered
from the said vehicle.
6. The learned Counsel for the petitioner submits that
the F.I.R. is false and the petitioner has been falsely implicated in
the case without any evidence against him. Even if the allegations
are assumed to be true, no offence under the N.D.P.S. Act or any
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other law is made out against him. The petitioner is only a Whole-
Time Director of Om logistics Ltd., and he has been wrongly
shown as the “owner,” while the company itself has not been made
an accused.
7. The learned counsel for the petitioner submits that
Om Logistics booked a consignment on the instruction of client
M/s Windlas Biptexh Pvt Ltd. (Dehradun), which is the licensed
manufacturer of the said cough syrup. The learned counsel for the
petitioner further submits that a Good Receipt was generated by
M/s Om logistics for the transportation of the said Wiscof Cough
syrup to two licensed pharmacies viz., 1. Bimal Medical Agency &
2. Yash Pharma in Madhephura, Bihar. The Learned Counsel
further submits that both the consignees have valid license to sell
Schedule H Drug including codeine. It has next been submitted
that the Central Government, exercising powers under Section
2(xi)(b) of the NDPS Act, through S.O. No. 826(E) dated
14.11.1985, declared that Codeine (Methyl Morphine) and its salts,
including codeine phosphate, containing not more than 100 mg per
dosage unit and not exceeding 2.5% concentration in undivided
preparations, and used in therapeutic practice, shall be treated as a
“manufactured drug” within the meaning of the act. The learned
counsel for the petitioner next submits that the Hon’ble
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Uttarakhand High Court in the case of M/s Windlas Biotech Pvt
Ltd. v. Union of India (Judgment dated 11.01.2013), held that
cough syrups containing codeine phosphate within the limits
prescribed by the Central Government notification cannot be
treated as narcotic drugs. Therefore, the State excise department
was directed not to charge excise duty on such cough syrups if
they complied with the prescribed limits. The learned counsel for
the Petitioner next submits that the truck and Tata Magic in
question is that the Truck was carrying two consignments
respectively and in order to deliver one of the consignments the
products were unloaded and shifted to Tata Magic Vehicle.
8. Learned A.P.P. for the State has submitted that the
truck of the petitioner was found to be carrying a consignment
which was banned in the State of Bihar and huge quantity was
recovered which falls under the commercial quantity. It has further
been submitted by the learned A.P.P. for the State that by
Notification No. 11 dated 18.10.2016, the State of Bihar has
notified all medicines and medicinal preparation containing
codeine to be intoxicant for the purpose of the Act. It has been
submitted that as the petitioner’s company was transporting two
containers of cough syrup which contained codeine without any
secured locking system, although, they had provided a bill of the
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same but their acts were found to be suspicious and therefore, the
consignment was seized and the petitioner’s company was rightly
made an accused in the said case.
Cr. Misc. No. – 5408 of 2023
9. The learned counsel appearing in Cr. Misc. No. 5408
of 2023, at the outset, submits that as far as second part of the
prayer made in paragraph-1 with regard to quashing of the order
dated 23.03.2021 is concerned, he shall not be pressing the same.
10. Learned counsel for the petitioners submit that the
petitioner no 1 is proprietor of M/S Bimal Medical Agency,
Madhepura and that he holds a valid license at the alleged time of
occurence, whereas petitioner no 2 is the proprietor of M/S Yash
Pharma, Madehepura. Learned Counsel further submits that the
petitioner’s firm are authorized stockists of a drug manufacturing
company namely M/S Windlas Bio Tech Pvt. Ltd. Learned counsel
for the petitioners further submits that there is a distributor in
Ranchi to whom the petitioner’s placed orders for the supply of
cough syrups. It is next submitted that the syrup contains codeine
which is one of the ingredients within the prescribed limit for
which Drugs Act/Rule permitted. It has next been submitted that
the syrup were manufactured by the company on the strength of
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Drug license and in Drugs act, FIR can be registered by Drug
Inspector and not by Police officer. The Learned counsel submits
that the allegation is fake and frivolous and that the learned trial
court has not applied his judicial mind and took cognizance in the
matter in routine manner.
11. Learned APP for the State has vehemently opposed
the prayer for quashing and has filed a counter affidavit stating that
codeine is an intoxicant and its use is banned in the State of Bihar
since the implementation of the Bihar Prohibition and Excise Act,
2016. It is further stated that the averments made in paragraphs 4,
5, 6, 7, 8, 9 and 10 have been deliberately made to cause a
miscarriage of justice. Learned APP further submits that the cough
syrups were not seized from the ordinary place of business of the
petitioners; rather, they were seized from a truck and a Tata Magic
vehicle. The truck driver also failed to produce valid documents
relating to the said items, whereupon the same were seized.
12. Having heard learned counsel for the parties and
having perused the documents on record along with the respective
pleadings of the parties, this court finds that this is yet another case
wherein the police officials have lodged an F.I.R. against the
accused persons for violation of the provision of N.D.P.S. Act in a
case where cough syrup containing codeine was seized. However,
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the prosecution has not taken pains in verifying as to the fact that
the said Wiscof Cough Syrup, which was seized from the
containers was a medicinal product. This Court has come across
similar issue where the Cough Syrup containing codeine under
different brand name have been seized by the police in Bihar on
the ground that the medicinal products containing codeine are
banned in the State of Bihar. This Court has taken note of the
circular dated 14.11.1985 issued by the Government of India
which has also been brought on record wherein the list of narcotic
drugs are mentioned and entry 35 thereof is as follows : “Codeine
(Methyl Morphine) and its salts (i.e., including codeine
phosphate), dilutions and preparations containing not more than
100 milli grams of the drug per dosage unit and with a
concentration of not more than 2.5 percent in undivided
preparations and which has been established in therapeutic
practice”.
13. From perusal of Section 8 of the N.D.P.S. Act, it
would be evident that prohibition contained therein is applicable to
narcotic drugs and since Wiscof Cough Syrup contains codeine
compounded with one other ingredients namely Cholorophenol
menate and it contains merely 10 mg. per dosage unit of 5 ml.,
which is not more than 100 mgs. of the drugs per dosage unit in
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undivided preparations and therefore it cannot be rated as a
narcotic drug and the provisions of Section 8 will not apply. The
Division Bench of the High Court, Allahabad in the case of Vibhor
Rana vs. Union of India while deciding a similar issue rendered
the judgment dated 24.12.2021 and taking the entire notification
and considering the seizure of Phensedyl Cough Syrups, it was
held that the composition of New Cough Linctus was found to be 5
ml. and each dosage unit thereof contains 10 mg. of codeine
phosphate I.P. besides chlorpheniramine maleate I.P. and thus it
falls within the exception to entry 35 of the notification dated
14.11.1985. The Division Bench of the Hon’ble Allahabad High
Court had gone on to quash the entire proceedings arising out of
the complaint lodged for offences under Sections 8, 21(c), 22, 25,
29 and 60(3) of the N.D.P.S. Act.
14. In view of such settled principle of law and finding
the facts and circumstances of the case to be similar to the ones
where cough syrups seizure had given rise to lodging of FIR
without ascertaining the fact that the same is covered under the
notification of Central Government, I find that the continuation of
the criminal proceedings would amount to abuse of the process of
law and hence the impugned order dated 22.08.2022 whereby
cognizance has been taken against the petitioners passed by the
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learned Sessions Judge-cum-Special Judge, NDPS, Madhepura in
connection with NDPS Case No. 15/2020(S)/CIS No. 15/2021,
arising out of Singheshwar P.S. Case No. 228 of 2020 as well as
the order/form of charge with three heads dated 10.09.2024 by
which charge has been framed under Sections 21(c), 22(c) of the
Narcotics Drugs and Psychotropic Substances Act and Section
30(a) of the Bihar Prohibition and Excise Act, 2018, as far as the
petitioner, Kamal Gupta (in Cr. Misc. No. 83580 of 2024) is
concerned and the entire proceedings stand quashed against all the
petitioners.
15. Both the applications stand allowed.
(Sourendra Pandey, J)
krishna/-
AFR/NAFR NAFR
CAV DATE 09.02.2026
Uploading Date 27.02.2026
Transmission Date 27.02.2026
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