Patna High Court
Dablu Kumar @ Dabloo KumarversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
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
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 21(c), 25, 29, 2(d), 8(c)
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
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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
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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
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Ram Krishna Nagar P.S. Case No. 887 of 2025.
(Ashok Kumar Pandey, J)
Shubham/-
U T
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