Patna High Court
Amit KumarversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The Court granted bail to the petitioner, holding that the seized substances do not constitute a narcotic drug within the meaning of the NDPS Act and that bail is appropriate.
Summary
The petitioner, Amit Kumar, was arrested in connection with a case under Section 21(c) of the NDPS Act for possession of several bottles of codeine‑containing cough syrups. He applied for bail, claiming innocence, lack of criminal antecedents, and that the seized substances contain only 0.2% codeine, which is below the 2.5% threshold specified in Central Government Notification S.O. 826(E). The defence also argued that the seizure was not made in compliance with Section 105 of the Bihar Narcotic Substances Act and that the substances are non‑toxic material, not narcotic drugs under Section 2(d) of the NDPS Act. The State contended, relying on the Supreme Court decision in Hira Singh v. Union of India, that the entire mixture constitutes contraband and the quantity is commercial. After considering the arguments, the Court held that bail should be granted and ordered the petitioner to be released on a bail bond of Rs.10,000 with two sureties.
Issues considered
- Whether the codeine‑containing cough syrups fall within the definition of a narcotic drug under the NDPS Act.
- Whether the seizure complied with Section 105 of the Bihar Narcotic Substances Act.
- Whether the quantity seized constitutes a commercial quantity rendering bail unlikely.
- Whether the petitioner is entitled to bail under Section 21(c) of the NDPS Act.
Legislation cited
- Bihar Narcotic Substances Act — s. 105
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 21(c), 2(d)
Subjects
- bail
- NDPS Act
- codeine
- contraband
- seizure procedure
- commercial quantity
- Section 105
- notification S.O. 826(E)
- non‑toxic material
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.88847 of 2025
Arising Out of PS. Case No.-310 Year-2025 Thana- BELDOUR District- Khagaria
======================================================
Amit Kumar S/O Sudhir Kumar R/O Vill.- Pachaut, Beldaur, Dist- Khagaria
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr . Shashank Shekhar, Advocate
Mr. Siddartha Prasad, Advocate
Mr. Om Prakash Kumar, Advocate
Mr. Rahul Kumar, Advocate
Mr. Shantam Kriti, Advocate
For the Opposite Party/s : Mr . Ramchandra Sahni, 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 Beldaur P.S. Case No. 310 of 2025 registered for the
offence punishable under Section 21(c) of the N.D.P.S. Act.
3. The case of the prosecution is that 260 bottles (100
ml each) of RTX-Scen cough syrup containing codeine, 28
bottles (100 ml each) of Kuffrex cough syrup containing
codeine and 201 bottles (100 ml each) wiscof cough syrup
containing codeine were 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
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case. Learned counsel for the 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. A statement has been
made in para-3 of this petition that the petitioner has got no
criminal antecedent. Moreover, he is languishing in judicial
custody since 17.10.2025.
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, rtx-scen, wiscof and kuffrex 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
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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 Special
Judge, (NDPS Act), Khagaria in connection with Beldaur P.S.
Case No. 310 of 2025.
(Ashok Kumar Pandey, J)
lata/-
U T
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