Patna High Court
Samar SahaversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
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
- Bihar Narcotic Substances Act — s. 105
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 21(c), 25, 29, 2(d)
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
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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 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
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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
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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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