Patna High Court
Bibi Tabassum @ Bibi TabasumversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The Court granted bail to the petitioner, holding that the seized preparation does not qualify as a narcotic drug under the NDPS Act and that procedural lapses warranted bail.
Summary
Bibi Tabassum was arrested after police seized 95 bottles of codeine cough syrup (0.2% concentration) from her residence, leading to charges under Sections 8(c) and 21(b) of the NDPS Act. The petitioner contended that the seizure was illegal, the witnesses were police personnel, Section 105 of the B.N.S.S. was not complied with, and that the drug, containing less than 2.5% codeine, does not qualify as a narcotic under the Act. The State relied on the Supreme Court’s decision in Hira Singh v. Union of India, arguing that the entire mixture is contraband and that the quantity seized constitutes a commercial amount. The Court examined the statutory definition under Section 2(d) of the NDPS Act and the Central Government’s notification limiting codeine concentration to 2.5% for therapeutic use. Finding the petitioner’s lack of criminal antecedents and the low concentration of codeine, the Court decided to grant bail, directing the petitioner to furnish a bail bond of Rs.10,000 with two sureties.
Issues considered
- Whether the seized codeine cough syrup falls within the definition of a narcotic drug under the NDPS Act.
- Whether the quantity seized constitutes a 'commercial quantity' warranting denial of bail.
- Whether the seizure complied with procedural requirements, particularly Section 105 of the B.N.S.S.
- Whether the petitioner is entitled to bail despite the charges under Sections 8(c) and 21(b) of the NDPS Act.
Legislation cited
- B.N.S.S. — s. 105
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 2, 21, 8
Subjects
- bail
- NDPS Act
- codeine
- seizure
- commercial quantity
- Section 105
- non‑toxic material
- drug concentration
- notification
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.88700 of 2025
Arising Out of PS. Case No.-449 Year-2025 Thana- AMAUR District- Purnia
======================================================
Bibi Tabassum @ Bibi Tabasum W/o- Minhaj @ Mini Res of Village- Bara
Eid Gah PS- Amour District- Purnea
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Bidhu Ranjan, Advocate
Mr. N.K. Agarwal, Sr. Advocate
Mr. Kumar Rajdeep, Advocate
For the Opposite Party/s : Mr. Awadhesh Kumar Singh, 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 bail in connection
with Amour P.S. Case No. 449 of 2025 registered for the offence
punishable under Sections 8(c) and 21(b) of the N.D.P.S. Act.
3. The case of the prosecution is that from the house
of this petitioner, altogether 95 bottles of codeine cough syrup
containing codeine each of 100 ml was recovered.
4. Learned counsel appearing on behalf of the
petitioner has submitted that petitioner is innocent and has
committed no offence. She has been falsely implicated in this
case. Learned counsel for the petitioner has submitted that from
perusal of the seizure list, it will transpire that the seizure
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witnesses are not independent witness rather they are police
personnel. Police has also not followed the provision of Section
105 of B.N.S.S. while making seizure. Petitioner is a lady and
she was apprehended by police when her husband was not there.
She is having no knowledge regarding the alleged recovery. A
statement has been made in para-3 of this petition that the
petitioner has got no criminal antecedent. Moreover, she is
13.10.2025.
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
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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, cough Syrup containing codeine
phosphate and triprolidine hydrochloride has been 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 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
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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
petitioner is directed to be enlarged on bail on furnishing bail
bond of Rs. 10,000/- (Rs. ten thousand only) with two sureties
of the like amount each to the satisfaction of the learned
Principal Special Judge (NDPS Act), Purnea in connection with
Amour P.S. Case No. 449 of 2025.
(Ashok Kumar Pandey, J)
Shubham/-
U T
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