Patna High Court
Upendra RaiversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
Because the codeine concentration is below 2.5% as per the central notification, the seized cough syrup does not constitute contraband under the NDPS Act, and the petitioner is entitled to bail.
Summary
The petitioner, Upendra Rai, was arrested as the driver of a truck from which 392 litres of Wiscof cough syrup containing 0.2% codeine were seized, and he was charged under Sections 21(c) and 29 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act. He contended that he had no knowledge of the contraband, that the seizure violated Section 105 of the Bihar Narcotic Substances Act, and that the syrup’s codeine concentration fell below the 2.5% threshold prescribed in Central Government Notification S.O. 826(E), thereby exempting it from the definition of contraband. The State relied on the Supreme Court’s decision in Hira Singh v. Union of India, arguing that the non‑toxic material mixed with the drug makes the entire quantity contraband and commercial in nature. The Court examined Section 2(d) of the NDPS Act and the central notification, concluding that the syrup does not qualify as a narcotic drug under the Act. Consequently, the Court ordered the petitioner’s release on bail upon furnishing a bond of Rs 10,000 with two sureties.
Issues considered
- Does a cough syrup containing 0.2% codeine fall within the definition of contraband under the NDPS Act?
- Can the petitioner be held liable under Sections 21(c) and 29 of the NDPS Act for the seized syrup?
- Does non‑compliance with Section 105 of the Bihar Narcotic Substances Act affect the bail application?
- Is the Supreme Court’s ruling in Hira Singh v. Union of India applicable to this case where the drug is present in a non‑toxic concentration?
Legislation cited
- Bihar Narcotic Substances Act — s. 105
- Drugs and Cosmetics Act
- Narcotic Drugs and Psychotropic Substances Act — s. 21(c), 29, 2(d)
Subjects
- bail
- NDPS Act
- codeine concentration
- contraband definition
- central notification
- seizure procedure
- commercial quantity
- driver liability
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.9508 of 2026
Arising Out of PS. Case No.-388 Year-2025 Thana- JANDAHA District- Vaishali
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Upendra Rai S/O Late Saryug Rai R/O village - Rustampur, Ward no - 15 ,P.
S - Raghupur, District - Vaishali
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Hemant Kumar, Advocate
For the Opposite Party/s : Mr. Aditya Narayan Singh. 1, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
2 19-02-2026 Heard learned counsel for the petitioner and learned
APP for the State.
2. The petitioner has prayed for bail in connection
with Jandaha P.S. Case No. 388 of 2025 registered for the
offence punishable under Sections 21(c) and 29 of the N.D.P.S.
Act.
3. The case of the prosecution is that a truck was
stopped by the police in which this petitioner and one Lalu Rai
were there. Lalu Rai managed to escape from there and this
petitioner was apprehended and from the truck, altogether 392
liters of wiscof 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
Patna High Court CR. MISC. No.9508 of 2026(2) dt.19-02-2026
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case. He is the driver of the said truck. One Lalu Rai who
managed to escape, had knowledge about the alleged recovery.
The petitioner has no concern in any way with the alleged
contraband. There is no independent witness of the seizure list.
Police has not complied section 105 of BNSS while preparing
seizure. A statement has been made in para-3 of this petition that
the petitioner has got no criminal antecedent and he is
languishing in judicial custody since 25.09.2025.
5. Learned counsel for the petitioner has further
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.
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6. In this case, wiscof Cough syrup containing codeine
phosphate has been recovered from the truck 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 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 Court
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of Sessions cum the Special Judge, NDPS, Vaishali at Hajipur in
connection with Jandaha P.S. Case No. 388 of 2025.
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)
Shubham/-
U T
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