Patna High Court
Amit Kumar Gupta @ Amit Kumar Sah @ GuptaversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The Court held that the seized codeine syrups, being below the 2.5% concentration prescribed in Notification S.O. 826(E), are not narcotic drugs under the NDPS Act, and therefore the petitioner is entitled to bail.
Summary
The petitioner, Amit Kumar Gupta, was arrested for possession of codeine‑based cough syrups and capsules and charged under Section 27(B)(ii) of the Drugs and Cosmetic Act and Sections 20, 21 and 22 of the NDPS Act. The prosecution alleged that 16 bottles of Onerex syrup, 4 bottles of Windex syrup and 43 capsules were seized, but the petitioner contended that the seizure violated Section 105 of the BNSS and that the drugs contained less than 2.5% codeine, falling within Central Government Notification S.O. 826(E) which excludes such preparations from the definition of narcotic drugs. The State relied on the Supreme Court decision in Hira Singh v. Union of India, arguing that the entire mixture is contraband and that the quantity seized amounts to a commercial quantity. The Court examined Section 2(d) of the NDPS Act and the Government notification, concluding that the seized items are not narcotic drugs and that the jurisdictional basis for the charge is lacking. Consequently, the Court ordered the petitioner’s release on regular bail upon furnishing a bail bond and sureties.
Issues considered
- Whether codeine‑containing syrups with a concentration below 2.5% are defined as narcotic drugs under the NDPS Act.
- Whether the quantity seized constitutes a 'commercial quantity' for the purpose of bail.
- Whether the alleged non‑compliance with Section 105 of the BNSS affects the bail application.
- Whether the petitioner is entitled to regular bail despite the charges under the Drugs and Cosmetic Act and NDPS Act.
Legislation cited
- Bihar Narcotic Substances (BNSS) Act — s. 105
- Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 — s. 20, 21, 22, 2(d)
Subjects
- bail
- NDPS Act
- codeine
- narcotic drug definition
- commercial quantity
- procedural lapse
- Drugs and Cosmetic Act
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.88583 of 2025
Arising Out of PS. Case No.-158 Year-2025 Thana- LAUKAHA District- Madhubani
======================================================
Amit Kumar Gupta @ Amit Kumar Sah @ Gupta S/o Ram Avatar Sah @
Ram Awatar Gupta @ Rameshwar Gupta R/o Village- Sahorwa, P.S-
Laukaha, Dist- Madhubani.
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Jitendra Kumar Bharti, Advocate
Ms. Nitu Kumari, Advocate
For the Opposite Party/s : Mr. Sanjay Kumar Pandey, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
2 06-01-2026 Heard learned counsel for the petitioner and learned
APP for the State.
2. The petitioner has prayed for regular bail in a case
registered for the offence punishable under Section 27(B)(ii) of
the Drugs and Cosmetic Act and under Sections 20, 21 and 22
of the NDPS Act.
3. The case of the prosecution, in short, is that from
the possession of this petitioner and one another altogether 16
bottles 100 ml each of Codeine based syrup (onerex), 04 bottles
of 100 ml each of Codeine based syrup (windex) and 43
capsules of Spasmo-Proxyvon Plus were recovered.
4. Learned counsel for the petitioner submits that
nothing has been recovered from the possession of this
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petitioner and police has not complied Section 105 of the BNSS
while making seizure. Learned counsel for the petitioner has
submitted that the petitioner is in judicial custody since
21.09.2025.
5. Learned counsel for the petitioner 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
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been established in Therapeutic
practice.
xxx”
6. In this case, Onerex Cough Syrup and Windex
Cough Syrup have been recovered from the possession of the
petitioner and the concentration of the codeine in these drugs 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
form the possession of this petitioner 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. Considering the aforesaid facts and circumstances
of the case, this court is inclined to enlarge the petitioner on
bail. The above named petitioner is directed to be released on
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bail in connection with Laukaha P.S. Case No. 158 of 2025 on
furnishing bail bond of Rs.10,000/- (ten thousand) with two
sureties of the like amount each to the satisfaction of learned
Principal Sessions Judge, Madhubani.
(Ashok Kumar Pandey, J)
durgesh/-
U T
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