Created by Fuzzy Cloud

Patna High Court

Amit Kumar Gupta @ Amit Kumar Sah @ GuptaversusThe State of Bihar

Decided
Disposal
ALLOWED

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

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
Patna High Court CR. MISC. No.88583 of 2025(2) dt.06-01-2026
                                            2/4




          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
Patna High Court CR. MISC. No.88583 of 2025(2) dt.06-01-2026
                                            3/4




                                   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
            Patna High Court CR. MISC. No.88583 of 2025(2) dt.06-01-2026
                                                        4/4




                      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


Continue reading with your account

Sign in to read the full judgment. It’s free.

Sign in to read

Checking your session…

For a signed copy suitable for filing, refer to the court's website.