CR. MISC./36592/2026 of Md. Saheb Vs The State of Bihar on 22 June 2026

ORAL ORDER

22-06-2026 Heard learned counsel for the petitioner and learned APP for the State.

2. The instant application for anticipatory bail has been filed by the petitioner apprehending his arrest 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 altogether 479 liters of Berry Safe 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 falsely been implicated in this case. Learned counsel has submitted that the recovery has been made from the Godown of the transporter. It has further been submitted that out of the total recovery, 280 liters of cough syrup was for them. The petitioner is having no criminal antecedent.

5. Learned counsel for the petitioner has relied on an order of this Court passed in Cr. Misc. No. 86288 of 2025 wherein this Court has held that according to a Central Government Notification, the recovery of cough syrup containing codeine comes in the ambit Drugs and Cosmetics Act and the said notification is being reproduced hereunder for reference:- “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, Berry Safe cough Syrup containing codeine 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.

7. Learned counsel for the petitioner has further been submitted that the petitioner is also having license under Drugs and Cosmetics Act. From perusal of the license furnished by the petitioner, it is clear that the said license was issued on 09.1.2025 and is valid till 08.01.2030 and the petitioner is licensed to sell, stock or exhibit or offer for sale or distribute by wholesale trucks other than those specified in Schedule C(1) and X on the premises. Learned counsel has submitted that the drug which has been recovered does not fall in the exception schedule rather this is merely a Schedule-H drug.

8. 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 petitioners is commercial quantity.

9. 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.

10. Having heard learned counsel for the parties and in the facts and circumstances of the case as stated above, this Court is inclined to enlarge the petitioner on bail. The petitioner is directed to surrender in the Court below within a period of four weeks from today and in the event of his arrest or surrender in connection with Sadar P.S. Case No. 498 of 2025, he will be enlarged on bail on furnishing bail bond of Rs. 10,000/- (Rupees ten thousand) with two sureties of the like amount each to the satisfaction of learned Special Judge, NDPS, Purnea subject to the conditions as laid down under section 482(2) of B.N.S.S.

11. 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.

Shubham/- (Ashok Kumar Pandey, J) U T