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Patna High Court

Samar SahaversusThe State of Bihar

Decided
Disposal
ALLOWED

Holding

The court held that the seized syrup does not constitute a narcotic drug under the NDPS Act and granted bail to the petitioner.

Summary

The petitioner, a driver, was arrested after police recovered 100 bottles of Phensedyl cough syrup containing codeine from his vehicle, alleging violations of Sections 21(c), 25 and 29 of the NDPS Act. The petitioner contended that he had no knowledge of the drug, the seizure was not made in accordance with Section 105 of the B.N.S.S., and the witnesses were police personnel. He relied on Central Government Notification S.O. 826(E) dated 14.11.1985, which exempts preparations containing not more than 2.5% codeine per dosage unit, noting that the syrup contained only 0.2% codeine. The State argued, citing Hira Singh v. Union of India, that any non‑toxic material mixed with contraband is treated as contraband and that the quantity seized was commercial. The court held that, under Section 2(d) of the NDPS Act and the notification, the syrup does not qualify as a narcotic drug, and therefore the petitioner was entitled to bail, which was granted upon furnishing a bond of Rs.10,000 with two sureties.

Issues considered

  • Whether Phensedyl cough syrup containing 0.2% codeine falls within the definition of a narcotic drug under the NDPS Act.
  • Whether the seizure complied with statutory requirements, particularly Section 105 of the B.N.S.S.
  • Whether bail should be granted to the petitioner pending trial.

Legislation cited

Subjects

  • bail
  • NDPS Act
  • codeine
  • narcotic drug definition
  • seizure
  • Section 105
  • non‑toxic material
  • commercial quantity
  • driver

Judgment

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                              CRIMINAL MISCELLANEOUS No.88848 of 2025
                       Arising Out of PS. Case No.-1153 Year-2024 Thana- Excise P.S. District- Purnia
                 ======================================================
                 Samar Saha Son of Dilip Saha R/O Village - Jot Teor, P.O.- Tiyor, P.S.- Hilli,
                 District - Dakshin Dinajpur, State - West Bengal.

                                                                                       ... ... Petitioner/s
                                                          Versus
                 The State of Bihar

                                                        ... ... Opposite Party/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s     :         Mrs. Vaishnavi Singh, Advocate
                 For the Opposite Party/s :         Mr. Satya Nand Shukla, 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 Excise Sadar P.S. Case No. 1153 of 2024 registered for the

                   offence punishable under Sections 21(c), 25 and 29 of the

                   N.D.P.S. Act.

                                3. The case of the prosecution is that 100 files of

                   PHENSEDYL cough syrup containing codeine ( each of 100

                   ml) was recovered from a car.

                                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. Learned counsel for the petitioner has submitted that from

                   perusal of the seizure list, it will transpire that the seizure
Patna High Court CR. MISC. No.88848 of 2025(2) dt.06-01-2026
                                            2/4




          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 the driver of

          the said vehicle and he has no knowledge regarding the alleged

          cough syrup. Moreover, the petitioner is languishing in judicial

          custody since 06.12.2024.

                       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
Patna High Court CR. MISC. No.88848 of 2025(2) dt.06-01-2026
                                            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, PHENSEDYL cough Syrup containing

          codeine 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,

          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

          considering the facts and circumstances of the case, this Court is
             Patna High Court CR. MISC. No.88848 of 2025(2) dt.06-01-2026
                                                         4/4




                       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), Purnea in connection with Excise Sadar P.S.

                       Case No. 1153 of 2024.



                                             (Ashok Kumar Pandey, J)
lata/-

U        T


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