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Patna High Court

Dablu Kumar @ Dabloo KumarversusThe State of Bihar

Decided
Disposal
ALLOWED

Holding

The Court held that the seized cough syrup does not constitute a narcotic drug under the NDPS Act, and therefore the petitioners are entitled to bail.

Summary

The petitioners, Dablu Kumar and Ram Kumar, were arrested in connection with a case under the Narcotic Drugs and Psychotropic Substances (NDPS) Act for allegedly possessing 360 bottles of cough syrup containing codeine. They contended that the codeine concentration (0.2%) was below the 2.5% threshold specified in Central Government Notification S.O. 826(E) and that they had no involvement in the contraband, only a mobile phone was recovered from them. The State argued, relying on the Supreme Court decision in Hira Singh v. Union of India, that any non‑toxic material mixed with a contraband renders the entire quantity as contraband and thus commercial. The Court examined Section 2(d) of the NDPS Act, noting that the drug itself was not a narcotic drug under the Act and that the notification governs the definition. Concluding that the seized syrup did not fall within the definition of a narcotic drug, the Court ordered that the petitioners be released on bail upon furnishing a bond of Rs. 10,000 with two sureties each.

Issues considered

  • Whether cough syrup containing codeine at 0.2% concentration falls within the definition of a narcotic drug under the NDPS Act.
  • Whether the quantity seized constitutes a 'commercial quantity' for the purposes of bail.
  • Whether Section 2(d) of the NDPS Act bars the jurisdiction of the court in this matter.
  • Whether bail should be granted to the petitioners.

Legislation cited

Subjects

  • bail
  • NDPS Act
  • codeine
  • commercial quantity
  • Section 2(d)
  • notification S.O. 826(E)
  • narcotic drug definition

Judgment

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                              CRIMINAL MISCELLANEOUS No.87207 of 2025
                 Arising Out of PS. Case No.-887 Year-2025 Thana- RAMKRISHNANAGAR District- Patna
                 ======================================================
           1.     Dablu Kumar @ Dabloo Kumar Son of Jairam Yadav @ Jay Ram Yadav
                  Resident of Village - Patua, P.S.- Saharsa, District - Saharsa.
           2.    Ram Kumar Son of Ram Prasad Bhagat Resident of Village - Patua, P.S.-
                 Saharsa, District - Saharsa.



                                                                               ... ... Petitioner/s
                                                     Versus
                 The State of Bihar



                                                        ... ... Opposite Party/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s     :     Mr. Sharda Nand Mishra, Advocate
                 For the Opposite Party/s :     Mr. Raj Ballabh Singh, APP
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
                                       ORAL ORDER

2   05-01-2026                  Heard learned counsel for the petitioners and learned

                   APP for the State.

                                2. The petitioners have prayed for bail in connection

                   with Ram Krishna Nagar P.S. Case No. 887 of 2025 registered

                   for the offence punishable under Sections 8(c)/21(c), 25 and 29

                   of the N.D.P.S. Act.

                                3. The case of the prosecution is that from the white

                   colour scorpio vehicle, altogether 360 bottles each of 100 ml

                   wiscof cough syrup containing codeine was recovered.

                                4. Learned counsel appearing on behalf of the

                   petitioners has submitted that petitioners are innocent and have
Patna High Court CR. MISC. No.87207 of 2025(2) dt.05-01-2026
                                            2/4




          committed no offence. They have been falsely implicated in this

          case. They have no concern in any way with the alleged

          contraband rather they are standing nearby and from their

          possession only a mobile was recovered. Moreover, they are

          languishing in judicial custody since 18.10.2025.

                       5. Learned counsel for the petitioners has submitted that

          the Central Government has issued Notification No. S.O. 826(E)

          dated 14.11.1985 which is given hereunder:-

                                   “S.O. 826(E). - In exercise of the powers
                                   conferred by sub-clause (b) of clause (xi)
                                   of section 2 of the Narcotic Drugs and
                                   Psychotropic Substances Act, 1985 (61 of
                                   1985), the Central Government hereby
                                   declares the following narcotic substances
                                   and preparations to be manufactured
                                   drugs, namely:-
                                   xxx
                                   35. Methyl morphine (commonly known as
                                   'Codeine') and Ethyle morphine and their salts
                                   (including     Dionine),    all     dilutions   and
                                   preparations      except    those      which    are
                                   compounded with one or more other ingredients
                                   and containing not more than 100 milligrams of
                                   the drug per dosage unit, and with a
                                   concentration of not more than 2.5% in
                                   undivided preparations and which have been
                                   established in Therapeutic practice.
                                   xxx”
                       6. In this case, wiscof cough Syrup has been
Patna High Court CR. MISC. No.87207 of 2025(2) dt.05-01-2026
                                            3/4




          recovered and the concentration of the codeine in this drug is

          approximately 0.2% which is 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 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.

                       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

          petitioners are directed to be enlarged on bail on furnishing bail

          bond of Rs. 10,000/- (Rs. ten thousand only) each with two

          sureties of the like amount each to the satisfaction of the learned

          Sessions Judge/Special Judge(NDPS), Patna in connection with
            Patna High Court CR. MISC. No.87207 of 2025(2) dt.05-01-2026
                                                        4/4




                      Ram Krishna Nagar P.S. Case No. 887 of 2025.



                                            (Ashok Kumar Pandey, J)
Shubham/-

U     T


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