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Patna High Court

Amit KumarversusThe State of Bihar

Decided
Disposal
ALLOWED

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

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
Patna High Court CR. MISC. No.88847 of 2025(2) dt.06-01-2026
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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
Patna High Court CR. MISC. No.88847 of 2025(2) dt.06-01-2026
                                            3/4




                                   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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