Sunil Dutta Mishra, J. – Heard learned counsel for the petitioner and learned APP for the State.

2. The petitioner seeks regular bail in connection with Special (NDPS) Case No. 47 of 2022, arising out of GRP Patna P.S. Case No. 238 of 2022 registered for the offence punishable under Sections 21 C/29 of the NDPS Act and under Sections 274, 275, 276/ 34 of the IPC.

3. As per prosecution case, on 25.04.2022 during the course of checking at railway platform, petitioner with co-accused were found in suspicious condition and on search, from the possession of the petitioner 98 pieces of WISCOF Cough Syrup – 100 ml containing Codeine Phosphate and Triprolidine Hydrochloride and a touch screen mobile were recovered from his pitthu bag and the same quantity of the said cough syrup and touch screen mobile also recovered from the co-accused from his pitthu bag. The total quantity of cough syrup recovered is 19.6 litres. They could not produce any valid document to carry the said quantity of contraband.

4. Learned counsel for the petitioner has submitted that petitioner is a student having no criminal antecedent and has been falsely implicated in the present case. He has further submitted that even if the alleged recovered 98 bottles of cough syrup from possession of the petitioner containing only 9.8 gram of Codein Phosphate if taken into account it would tantamount to small quantity and is not commercial quantity.

5. Learned counsel for the petitioner further contended that only psychotropic substance contained in the contraband is required to be taken into consideration while determining quantity of prohibited drug i.e. Codein Phosphate and not the whole of the mixture contained in the cough syrup.

6. He has further submitted that there is no independent witness to support the prosecution case. The investigation in the present case is completed and charge-sheet has already been submitted and as such there is no chance of his absconding and tampering with the evidence. The conclusion of trial will take time, hence prayed for release of the applicant on bail.

7. Learned APP vehemently opposed the instant bail petition. He has submitted that the petitioner is indulged in illegal business of drug trafficking and thus is not entitled to bail on the contours of Section 37 of the NDPS Act. There is recovery of contraband bottles from the present accused thus there is statutory presumption under Section 35 and 54 of the NDPS Act against the accused person.

8. Learned APP has submitted that there is direct recovery of 98 pieces of WISCOF cough syrup carrying 100 ml each i.e. total 9.8 litres which was carrying in his hand in a black colour bag and there is similar recovery from the co-accused namely Ayush Kumar (a juvenile) i.e. 9.8 litres and thus the total recovery in the case is 19.600 litres and they were not having documents to keep the same in their possession. It is further submitted that total recovery in commercial quantity under the NDPS Act and the petitioner does not deserve bail.

9. To determine as to whether the petitioner was in actual possession of commercial quantity of Codein, it is relevant to refer to the notification specifying small and commercial quantity for the purpose of the Act S.O. 1055 (E) dated 19th October, 2001 published in Gazette of India, Extra Part-II, Section 3 (ii) dated 19th October, 2001, as amended on 18.11.2009. As per entry 28 of the list, small quantity of Codein is defined as 10 gram and a commercial quantity of Codein is defined as 1kg.

10. The question for consideration in this case is as to whether for the purpose of the NDPS Act, 1985, a commercial quantity of Codein has been recovered from the petitioner and whether the rigour of Section 37 of the NDPS Act which regulate the grant of bail for offence involving commercial quantity of drugs is attracted or not.

11. The scheme of NDPS Act provides graded sentences for possession of small, intermediate and commercial quantities of narcotic drugs or psychotropi