Patna High Court
Abhimanyu Kumar @ Abhimanu Kumar @ MonuversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
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
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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
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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
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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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