Patna High Court
Md. Nur IslamversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The court held that the seized preparation does not constitute a narcotic drug under the NDPS Act and therefore the petitioner is entitled to bail.
Summary
The petitioner, Md. Nur Islam, an employee of a transport company, was arrested after 479 litres of codeine‑containing cough syrup were seized from a godown where he worked. He claimed he was merely handling the consignment and that the codeine concentration (0.2%) was below the 2.5% threshold specified in Central Government Notification S.O. 826(E) and therefore not a narcotic drug under the NDPS Act. The State argued that, per the Supreme Court’s decision in Hira Singh v. Union of India, any non‑toxic material mixed with contraband is treated as contraband and the quantity recovered was commercial. The court examined Section 2(d) of the NDPS Act and the notification, concluding that the seized preparation did not fall within the definition of a narcotic drug. Consequently, the court granted bail to the petitioner on a bond of Rs. 10,000 with two sureties.
Issues considered
- Whether the cough syrup containing 0.2% codeine falls within the definition of a narcotic drug under the NDPS Act.
- Whether the quantity seized constitutes a 'commercial quantity' for bail considerations.
- Whether the petitioner is entitled to bail despite the seizure.
Legislation cited
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 21(c), 29, 2(d), 8(c)
Subjects
- bail
- NDPS Act
- codeine
- narcotic drug definition
- concentration threshold
- commercial quantity
- notification
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.89929 of 2025
Arising Out of PS. Case No.-498 Year-2025 Thana- PURNEA SADAR District- Purnia
======================================================
Md. Nur Islam Son of Late Mujmil Haque Resident of Village-Mirjabri,
Police Station-Kasba, Dist-Purnea
... ... Petitioner/s
Versus
The State of Bihar bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr.Rakesh Kumar Jha, Advocate
For the Opposite Party/s : Mr.Jitendra Kumar Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
5 10-04-2026 Heard learned counsel for the petitioner and learned
APP for the State.
2. The petitioner has prayed for bail in connection
with Sadar P.S. Case No. 498 of 2025 registered for the
offence punishable under Sections 8(c), 21(c) and 29 of the
N.D.P.S. Act.
3. The case of the prosecution is that the informant
received an informant received an information that huge
quantity of codeine syrup concealed in the godown of
Jharkhand Bengal Freight Carrier Private Limited Company,
Hansda Road at Gulabbagh in Purnea. On this information, he
searched the aforesaid godown and from that godown,
altogether 479 liters of cough syrup containing codeine was
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recovered. The petitioner disclosed that the said company is
running by him and Manoranjan Kumar and consignor of the
aforesaid codeine syrup is Zigwell Biotech Private Limited,
Delhi and Md. Noorislam visited their company for taking
delivery. Petitioner produced bilty of the company. The said
bilty perused by the Drug Inspector and came to know that in
the said bilty, 5760 bottles containing codeine syrup in the
name of AS Pharma Medical, Hope Chauk, Shanti Nagar, Line
Bazar, Purnea and two others was to be transported.
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. He is only an employee and the codeine was to be
transported to AS Pharma. It is the godown of the transport
company and his work is only to transport the consignment
from one man to another man. From perusal of the F.I.R., it is
clear that the cough syrup containing codeine was recovered
from the godown which was to be transported to M/s As
Pharma and Aaradhya pharma. From perusal of the F.I.R., it is
also clear that Triprolidine Hydrochloride & Codeine
Phosphate having brand name of Berry Safe Cough Syrup was
recovered. Petitioner is having no criminal antecedent and he
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is languishing in judicial custody since 09.10.2025.
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 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, Triprolidine Hydrochloride &
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Codeine Phosphate having brand name of Berry Safe Cough
Syrup has been recovered from the godown where the
petitioner is working as an employee 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 from 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
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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, N.D.P.S., Purnea in connection with Sadar P.S.
Case No. 498 of 2025.
(Ashok Kumar Pandey, J)
Jagdish/-
U
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