Patna High Court
CR. MISC./34671/2026 of Shyamnandan Kumar Vs The State of Bihar on 20 May 2026
COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.34671 of 2026 Arising Out of PS. Case No.-216 Year-2025 Thana- PRATAPGANJ District- Supaul ====================================================== Shyamnandan Kumar S/o Domi Mehta R,o - Sukhanagar, Ward No. 2, P.S - Pratapganj, District -
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.34671 of 2026
Arising Out of PS. Case No.-216 Year-2025 Thana- PRATAPGANJ District- Supaul ======================================================
Shyamnandan Kumar S/o Domi Mehta R,o - Sukhanagar, Ward No. 2, P.S - Pratapganj, District - Supaul
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s
:
Mr. Kumar Rajdeep, Advocate
For the Opposite Party/s :
Mr. Abhay Kumar Roy, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
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ORAL ORDER
20-05-2026 Heard learned counsel for the petitioner and learned APP for the State through Video Conferencing.
2. The petitioner has prayed for regular bail in a case registered for the offence punishable under Sections 8(c), 21 (c) of the NDPS Act.
3. The case of the prosecution, in brief, is that from the possession of this petitioner altogether 7560 bottles of WISCOF cough syrup of 100 ml each containing Codeine was recovered.
4. Learned counsel for the petitioner submits that nothing has been recovered from possession of the petitioner. It is also submitted that all the witnesses to the seizure list are police personnel, and the police have not complied the mandatory provisions of Section 105 of the B.N.S.S. It is further submitted that, in this case the charge-sheet was filed without the FSL report vide Notification No. S.O. 826(E) dated 14.11.1985 under the Narcotic Drugs and Psychotropic Substances Act of the Central Government. Learned counsel for the petitioner further submits that no recovery has been made from the conscious possession of the petitioner, as the alleged recovery was effected from a house. The petitioner is in custody since 14.10.2025, having no criminal antecedent.
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.
6. In this case, Codeine Cough syrup containing codeine phosphate has been recovered from a magic vehicle 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 Special Judge (NDPS), Supaul/concerned Court, in connection with Pratapganj P.S. Case No. 216 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.
khushbu/- (Ashok Kumar Pandey, J) U T