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Patna High Court

Abhimanyu Kumar @ Abhimanu Kumar @ MonuversusThe State of Bihar

Decided
Disposal
ALLOWED

Holding

The court held that the cough syrup does not constitute contraband under the NDPS Act because the codeine concentration is below the statutory limit, and therefore granted bail to the petitioner.

Summary

The petitioner, Abhimanyu Kumar, was arrested for allegedly possessing 135 litres of cough syrup containing codeine and was charged under sections 30(a) and 32 of the Bihar Prohibition and Excise Act. He contended that the syrup contained only 0.2% codeine, which is below the 2.5% limit prescribed in the NDPS Act notification, and therefore did not constitute contraband. The State relied on the Supreme Court decision in Hira Singh v. Union of India, arguing that any non‑toxic material mixed with a contraband renders the whole quantity contraband and that the seized amount was a commercial quantity. The court examined the applicability of Section 2(d) of the NDPS Act and the central government notification, concluding that the drug did not fall within the NDPS definition. Consequently, the court granted regular bail on a bond of Rs.10,000 with two sureties, directing the petitioner’s release.

Issues considered

  • Whether cough syrup containing 0.2% codeine falls within the definition of contraband under the NDPS Act and the Bihar Prohibition and Excise Act.
  • Whether the petitioner is entitled to regular bail despite the alleged possession of a commercial quantity of the syrup.

Legislation cited

Subjects

  • bail
  • NDPS Act
  • codeine concentration
  • contraband
  • Bihar Prohibition and Excise Act
  • commercial quantity
  • drug regulation

Judgment

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                               CRIMINAL MISCELLANEOUS No.9579 of 2026
                      Arising Out of PS. Case No.-965 Year-2025 Thana- AGAMKUAN District- Patna
                 ======================================================
                 Abhimanyu Kumar @ Abhimanu Kumar @ Monu S/O Ramesh Prasad R/O
                 Village- Bhapatiyahi, Ward No. 10, P.S- Bhaptiyahi, Distt.- Supaul.

                                                                                 ... ... Petitioner/s
                                                      Versus
                 The State of Bihar

                                                        ... ... Opposite Party/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s     :      Mr. Sanjeev Kumar Mishra, Sr. Adv.
                                                 Mr. Arvind Kumar, Advocate
                 For the Opposite Party/s :      Mr. Sunil Kumar Pandey, APP
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
                                       ORAL ORDER

3   19-03-2026                    Heard learned counsel for the petitioner and learned

                   APP for the State.

                                 2. The petitioner has prayed for regular bail in a case

                   registered for the offence punishable under sections 30(a), 32 of

                   the Bihar Prohibition and Excise Act.

                                 3.     The case of the prosecution is that from the

                   possession of this petitioner, altogether 135 liters of cough syrup

                   containing codeine was recovered.

                                 4. Learned counsel appearing on behalf of the

                   petitioners has submitted that petitioners are innocent and have

                   committed no offence. He has been falsely implicated in this

                   case. He has no concern in any way with the alleged contraband.

                   Moreover, he is languishing in judicial custody since 23.12.2025
Patna High Court CR. MISC. No.9579 of 2026(3) dt.19-03-2026
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          having no criminal antecedent.

                       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, Codeine Phosphate and Triprolidine

          Hydrochloride based cough Syrup have 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
Patna High Court CR. MISC. No.9579 of 2026(3) dt.19-03-2026
                                            3/4




          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. Considering the aforesaid facts and circumstances

          of the case, this court is inclined to enlarge the petitioner on

          bail. The above named petitioner is directed to be released on

          bail in connection with Agamkuan P.S. Case No. 965 of 2025 on

          furnishing bail bond of Rs.10,000/- (ten thousand) with two

          sureties of the like amount each to the satisfaction of learned

          Exclusive Special Court of Excise, Patna City, Patna.

                       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
           Patna High Court CR. MISC. No.9579 of 2026(3) dt.19-03-2026
                                                       4/4




                     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      T


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