Patna High Court
Md. Shabir @ Raja @ Md. SabbirversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The court held that the seized cough syrup does not constitute contraband under the NDPS Act because the codeine concentration is below the 2.5% limit, and therefore the petitioner is entitled to bail.
Summary
The petitioner, Md Shabir, was arrested for possession of 120 bottles of Onerex cough syrup containing 0.2% codeine and charged under Section 21(c) of the NDPS Act. He sought bail, arguing that the seizure was not conducted per Section 105 of the Bihar Narcotic Substances Act and that the codeine concentration fell below the 2.5% threshold specified in Central Government Notification S.O. 826(E), thus not constituting contraband. The State contended that, per the Supreme Court’s decision in Hira Singh v. Union of India, any non‑toxic material mixed with a contraband renders the whole quantity a commercial quantity, justifying the charge. The Court examined Section 2(d) of the NDPS Act and held that the drug, at the stated concentration, is not a narcotic drug within the Act’s ambit, rendering the charge untenable. Consequently, the Court granted bail on a bond of Rs.10,000 with two sureties, directing the order to be communicated to the Director General of Police.
Issues considered
- Whether cough syrup containing 0.2% codeine falls within the definition of a narcotic drug under the NDPS Act and can be prosecuted under Section 21(c).
- Whether the quantity seized constitutes a 'commercial quantity' for the purposes of the NDPS Act.
- Whether the seizure complied with procedural requirements of Section 105 of the Bihar Narcotic Substances Act.
- Whether bail should be granted in view of the alleged procedural lapses and the nature of the substance.
Legislation cited
- Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 — s. 21(c), 2(d)
Subjects
- bail
- NDPS Act
- codeine concentration
- contraband
- commercial quantity
- seizure procedure
- Schedule H
- Drugs and Cosmetic Act
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.89635 of 2025
Arising Out of PS. Case No.-180 Year-2025 Thana- BELA District- Sitamarhi
======================================================
Md. Shabir @ Raja @ Md. Sabbir S/O Chhote @ Md. Chhote R/O Village-
Mach Pakauni, P.S- Bela, Distt.- Sitamarhi.
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mrs .Madhubala Verma, Advocate
For the Opposite Party/s : Mr. Ashok Kumar Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
2 15-01-2026 Heard learned counsel for the petitioner and learned
APP for the State.
2. The petitioner has prayed for bail in connection
with Bela P.S. Case No. 180 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 from the
possession of this petitioner, altogether 120 bottles each of 100
ml Onerex cough syrup containing codeine was 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
case. There is no independent witness of the seizure list rather
they are police personnel. Police has not followed Section 105
of B.N.S.S. while making seizure. Moreover, he is languishing
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in judicial custody since 24.08.2025. He is having criminal
antecedent of two cases.
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
concentration of not more than 2.5% in
undivided preparations and which have been
established in Therapeutic practice.
xxx”
6. In this case, Onerex cough Syrup 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.
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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
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), Sitamarhi in connection with Bela P.S. Case
No. 180 of 2025.
10. Before parting, it is very strange that the cases
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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.
11. Office is directed to communicate this order to
D.G.P. ( Director General of Police, Bihar) for needful.
(Ashok Kumar Pandey, J)
Shubham/-
U T
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