Patna High Court
Chhotu Kumar Singh @ Dablu Kumar Singh @ Chhotu KumarversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The court held that the seized cough linctus does not fall within the definition of contraband under the NDPS Act and therefore granted bail.
Summary
The petitioner, Chhotu Kumar Singh, was arrested for alleged possession of 100 bottles of cough linctus containing codeine and charged under Sections 21(c), 22(c) and 25 of the NDPS Act. He contended that the seized preparation contained less than 2.5% codeine, falling within the exemption notified under S.O. 826(E) and therefore not a contraband. The State relied on the Supreme Court’s decision in Hira Singh v. Union of India, arguing that the entire mixture is deemed contraband and that the quantity recovered is commercial. The court examined Section 2(d) of the NDPS Act, noting that the drug itself is not a narcotic drug and that the Central Government’s notification governs the classification. Concluding that the preparation does not attract NDPS jurisdiction, the court granted bail on a bond of Rs.10,000 with two sureties.
Issues considered
- Whether cough linctus containing codeine at a concentration below 2.5% constitutes a contraband under the NDPS Act.
- Whether the quantity recovered is deemed a 'commercial quantity' for the purpose of bail.
- Whether the petitioner is entitled to bail pending trial.
Legislation cited
- Narcotic Drugs & Psychotropic Substances Act, 1985 — s. 21(c), 22(c), 25, 2(d)
Subjects
- bail
- NDPS Act
- codeine
- contraband
- exemption notification
- commercial quantity
- drug schedule
- criminal procedure
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.89548 of 2025
Arising Out of PS. Case No.-111 Year-2025 Thana- SHAMBHUGANJ District- Banka
======================================================
Chhotu Kumar Singh @ Dablu Kumar Singh @ Chhotu Kumar Son of Sri
Pappu Singh Village- Gulni Kushha PS -Shambhuganj Distt -Banka
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Ashok Kumar Choudhary, Sr. Advocate
Mr. Raj Kumar Choudhary, Advocate
Mr. Akshansh Ankit, Advocate
For the Opposite Party/s : Ms. Nirmala Kumari, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
2 17-01-2026 Heard Mr. Ashok Kumar Choudhary, learned senior
counsel for the petitioner and Ms. Nirmala Kumari, learned
APP for the State.
2. The petitioner has prayed for bail in connection
with Shambhuganj P.S. Case No. 111 of 2025 registered for the
offence punishable under Sections 21(c), 22(c) and 25 of the
Narcotic Drugs & Psychotropic Substances Act, 1985.
3. The case of the prosecution in short is that from the
house of this petitioner, altogether 100 bottles of cough
LINCTUS RJT, each of 100 ml containing codeine, was
recovered.
4. Learned counsel appearing on behalf of the
petitioner has submitted that petitioner is innocent and has
Patna High Court CR. MISC. No.89548 of 2025(2) dt.17-01-2026
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committed no offence. He has been falsely implicated in this
case. Learned counsel for the petitioner submits that nothing has
been recovered from the possession of this petitioner. The
witness of the seizure list are police personnel and the police
have not complied with Section 105 of the BNSS while making
the seizure. He further submits that a statement has been made
in para 3 of the petition that petitioner has no criminal
antecedent and he is languishing in judicial custody since
04.05.2025.
5. Learned counsel for the petitioner has submitted that
Under Notification No. S.O. 826(E) dated 14.11.1985 under the
Narcotic Drugs and Psychotropic Substances Act and Rules, 1985
that preparations are exempted as manufactured drugs provided the
preparations contained the narcotic drugs to the extent permitted in
respect of codeine under Entry No. 35. It is stated that codeine and
ethyle morphine and their salts including dionine all dilutions and
preparations are considered to be manufactured drugs except those
which are compounded with one or more other ingredients and
containing not more than 100 miligrams of the drugs per doses unit
and with a concentration of not more than 2.5 % in undivided
preparations and which have been established in therapeutic practice.
6. In this case, cough LINCTUS RJT has been
recovered from the possession of the petitioner and the
Patna High Court CR. MISC. No.89548 of 2025(2) dt.17-01-2026
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concentration of the codeine in this drug 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 form the possession of this
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
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
Sessions Judge-cum-Special Judge (NDPS Act), Banka in
connection with Shambhuganj P.S. Case No. 111 of 2025.
Patna High Court CR. MISC. No.89548 of 2025(2) dt.17-01-2026
4/4
10. Before parting, it is very strange that the cases
where cough syrups containing codeine are recovered, the
police is invariably filing cases under N.D.P.S. Act whereas
in view of the notification of Central Government (supra)
concentration of codeine being less than 2.5 %, the quantity
does not come under the ambit of contraband. Cough syrup
containing codeine is only a Schedule-H drug for which, the
shopkeeper has to maintain register and he must be a
licensed one. Such type of cases should be filed under Drugs
and Cosmetic Act. It is only the violation of Drugs and
Cosmetic Act whereas, police is invariably misusing the
procedure.
(Ashok Kumar Pandey, J)
sudhanshu/-
U
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