Patna High Court
Md. Intekhab Alam @ Md. Intkhab @ Itkhab AlamversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The court held that the seized codeine‑containing syrups do not constitute a narcotic drug under the NDPS Act and therefore granted bail to the petitioner.
Summary
The petitioner, Md. Intekhab Alam, was arrested for possession of 150 bottles of cough syrups containing codeine, alleged to violate Sections 8, 21(c) and 22(c) of the NDPS Act. The prosecution argued that the seized quantity constituted a commercial amount of contraband, citing the Supreme Court’s decision in Hira Singh v. Union of India. The defence contended that the codeine concentration (0.2%) was below the 2.5% threshold specified in Central Government Notification S.O. 826(E), and therefore the substances were not narcotic drugs under Section 2(d) of the NDPS Act; it also challenged the seizure procedure for lack of independent witnesses and non‑compliance with Section 105 of the B.N.S.S. Act. The court examined the statutory definition, the applicable notification, and the procedural deficiencies, and concluded that the substances did not fall within the definition of a narcotic drug. Consequently, the court granted bail to the petitioner on a bond of Rs.10,000 with two sureties.
Issues considered
- Whether cough syrups containing codeine at 0.2% concentration are defined as narcotic drugs under the NDPS Act.
- Whether the seizure complied with procedural requirements of Section 105 of the B.N.S.S. Act.
- Whether bail should be denied on the ground of alleged commercial quantity of contraband.
Legislation cited
- B.N.S.S. Act — s. 105
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 21(c), 22(c), 2(d), 8
Subjects
- bail
- NDPS Act
- codeine concentration
- commercial quantity
- seizure procedure
- Section 105
- notification S.O. 826(E)
- narcotic drug definition
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.88830 of 2025
Arising Out of PS. Case No.-198 Year-2025 Thana- SAKRI District- Madhubani
======================================================
Md. Intekhab Alam @ Md. Intkhab @ Itkhab Alam S/o Md. Kamrujjama R/o
Village- Sakri Purani Bajar Ward No 3, PS- Sakari, District- Madhubani
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Gagandeo Yadav, Advocate
Mr. Rajesh Kumar, Advocate
For the Opposite Party/s : Mr. Tapeshwar Sharma, 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 Sakri P.S. Case No. 198 of 2025 registered for the offence
punishable under Sections 8, 21(c) and 22(c) of the N.D.P.S.
Act.
3. The case of the prosecution is that 100 bottles syrup
of Rexodex-T each of 100 ml containing codeine was recovered
and 50 bottles of zudik cough syrup containing codeine was also
recovered.
4. Learned counsel appearing on behalf of the
petitioner has submitted that petitioner is innocent and has
committed no offence. He has been falsely implicated in this
case. Petitioner is a licensee holder. Learned counsel for the
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2/4
petitioner has submitted that from perusal of the seizure list, it
will transpire that the seizure 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. Moreover, the petitioner is languishing in judicial
custody since 20.10.2025.
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
other ingredients and containing not
more than 100 milligrams of the drug
per dosage unit, and with a
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3/4
concentration of not more than 2.5% in
undivided preparations and which have
been established in Therapeutic
practice.
xxx”
6. In this case, Rexodex-T cough Syrup and zudik
cough syrup containing codeine phosphate and triprolidine
hydrochloride have been recovered and the concentration of the
codeine in these drugs 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
quantities. The Central Government has power to issue
notification time to time.
9. Having heard learned counsel for the parties and
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4/4
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 Sessions Judge, Madhubani in connection with Sakri
P.S. Case No. 198 of 2025.
(Ashok Kumar Pandey, J)
lata/-
U T
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