Patna High Court
Vikash KumarversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The court held that the cough syrup with 0.2% codeine does not constitute contraband under the NDPS Act and therefore granted bail to the petitioners.
Summary
Vikash Kumar and Kundan Kumar were arrested for alleged possession of 360 bottles of cough syrup containing 0.2% codeine, seized from a white Scorpio vehicle. They contended that the syrup, falling below the 2.5% codeine threshold prescribed in Notification S.O. 826(E) 1985, is exempted as a manufactured drug and not contraband under the NDPS Act. The State argued, relying on Hira Singh v. Union of India, that any non‑toxic material mixed with a contraband renders the whole quantity contraband and that the seized amount constituted a commercial quantity. The Court examined Section 2(d) of the NDPS Act and the central government notification, concluding that the syrup does not fall within the ambit of contraband. Consequently, the Court granted bail to the petitioners on a bond of Rs.10,000 with two sureties each, noting that such cases might be more appropriately dealt with under the Drugs and Cosmetic Act.
Issues considered
- Whether cough syrup containing 0.2% codeine qualifies as contraband under the NDPS Act.
- Whether the petitioners are entitled to bail despite the quantity of the seized material.
- Whether Section 2(d) of the NDPS Act and the 1985 notification exempt the seized preparation from prosecution.
Legislation cited
- Narcotic Drugs and Psychotropic Substances Act — s. 21(c), 25, 29, 2(d), 8(c)
Subjects
- bail
- NDPS Act
- codeine
- contraband
- notification exemption
- Section 2(d)
- drug concentration
- criminal procedure
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.87954 of 2025
Arising Out of PS. Case No.-887 Year-2025 Thana- RAMKRISHNANAGAR District- Patna
======================================================
1. Vikash Kumar, S/o Vonod Sharma @ Binod Singh, Resident of Village-
Pathua, PS- Saharsa, District - Saharsa, at present address R/o vill - Kandar,
ward no. 13, P.S.- Gaurichak, Distt.- Patna
2. Kundan Kumar, S/o Chotan Sharma, R/o vill- Kashtola (Kast Tola), ward
no. 33, P.S.- Saharsa, Distt.- Saharsa
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Shekhar Kumar Singh, Advocate
For the Opposite Party/s : Mr. Syed Ehteshamuddin, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
4 18-02-2026 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
committed no offence. They have been falsely implicated in this
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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. It has also
been submitted that similarly situated co-accused persons have
been granted bail by this Court vide Cr. Misc. No. 87207 of
2025. The case these petitioners stands on similar footing.
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, wiscof cough Syrup has been
recovered and the concentration of the codeine in this drug is
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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.
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
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