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Patna High Court

Vikash KumarversusThe State of Bihar

Decided
Disposal
ALLOWED

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

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
Patna High Court CR. MISC. No.87954 of 2025(4) dt.18-02-2026
                                            2/4




          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
Patna High Court CR. MISC. No.87954 of 2025(4) dt.18-02-2026
                                            3/4




          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.87954 of 2025(4) dt.18-02-2026
                                                         4/4




                       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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