Back
2025 Supreme(Pat) 452
IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHUTOSH KUMAR, ACJ and PARTHA SARTHY, J.
CWJC No.20522 with 558 of 2021
(16.5.2025)
2025(4) BLJ 353
Om Logistics Ltd. (in 20522)
Sooryamani Prasad Pandey @ Sooryamani Pandey @ Suryamani Pandey (in 558) ... Petitioners
vs.
State of Bihar & Ors. ... Respondents
(in both)
For the Petitioners: M/s Jitendra Kumar Singh, Sr. Adv.,(in 20522); Harsh Singh (in both).
For the State : M/s P.K. Shahi, A.G., Shama Sinha, AC to SC-5 (in 20522)
For the Respondents: M/s Nadim Seraj, G.P.-5, Asif Iqbal Niazi, AC to GP 5, Kumar Manish (SC-5)(in 20522); Md. Nadim Seraj, G.P.-5 (in 558).
Headnote:
Drugs and Cosmetics Act, 1940 – Sections 26-A and 26-B read with Entry 132 of Schedule-H read with Drugs and Cosmetics Rules, 1945 – Rules 65 and 97 and Bihar Prohibition and Excise Act, 2016 – Sections 3, 14, 15, 16 and 27 – State Government by the impugned notification declaring all medicines and medical preparations containing medical preparation 'Codeine' to be an intoxicant for the purposes of Bihar Prohibition and Excise Act – It has been held by the Hon'ble Supreme Court that only medicinal preparations which are capable of being misused or noxious purpose can be considered intoxicating liquor – The test to determine it is can be misused is whether the article in question can be used as beverage – 'Codeine' is capable of being used as an intoxicant – Therein lies the jurisdiction for the State to come out with the notification as impugned in the present writ petition – Thus the impugned notification is a legitimate exercise of power under Entry 8 List II read with Hon'ble S.C. judgment Lalta Prasad Vaish [2024 SCC Online SC 3029] – There is no repugnancy with the Drugs and Cosmetics Act, 1940, as the State action targets the abuse and non-medicinal use of the Codeine based versions – The notification is in furtherance of the States' constitutional obligation under Article 47 to prevent intoxicating substance abuse – Intoxicants and intoxicants drugs, when misused would fall in the category of res extra commercium – CrWJC No. 558 of 2021 referred to the Hon'ble Single Judge hearing such Criminal Writ Petitions – CWJC No. 20522 of 2021 disposed off. (Paras 73 to 77)
Ashutosh Kumar, ACJ. – The petitioner, a Transportation and Logistics Company, has filed this petition for quashing the Notification No. 11 dated 18.10.2016 (Annexure-18), whereby, in exercise of powers under Section 3 of the Bihar Prohibition and Excise Act, 2016 (hereinafter referred to as ‘the Act’), the State Government has notified all medicines and medicinal preparations containing medicinal preparation ‘Codeine’ to be an intoxicant for the purposes of the Act, for it being ultra vires Sections 26-A and 26-B of the Drugs and Cosmetics Act 1940, read with Entry 132 of Schedule-H read with Rules 65 and 97 of the Drugs and Cosmetics Rules, 1945 as also for the notification being beyond the legislative competence of the State Legislature and its Executive. The English version of the notification, referred to above, and impugned in the present petition, is being extracted hereinunder for ready reference:
2. Alongside, the petitioner has also prayed for quashing the order dated 06.09.2021 (Annexure-17) passed in Excise Confiscation Case No. 32 of 2021 by the Additional Collector-cum-Additional District Magistrate, Madhepura (Respondent No. 6), whereby the truck belonging to the petitioner has been confiscated and has been directed to be auction sold.
3. The further prayer in the petition is for release of the truck of the petitioner forthwith and also for release of the consignment of drugs viz. Wiscof Cough Syrup containing Codeine which was being transported in the truck in question and for which Singheshwar P.S. Case No. 228 of 2020 has been registered.
4. The short facts leading to the filing of the present petition are required to be stated here for proper appreciation.
5. The petitioner received instructions for booking a shipment containing consignment of Wiscof Cough Syrup on the instructions of M/s Windlas Biotech Pvt. Ltd., Dehradun, the manufacturer of Wiscof Cough Syrup, which was to be picked up from the authorized and licensed distributor, viz. M/s Maa Durga Enterprises (Consignor) which has valid drug license and which company is based in Ranchi (Jharkhand). The consignment had to be transported to Madhepura (Bihar) for being delivered to two licensed pharmacies.
6. The contention of the petitioner is that M/s Windlas Biotech Pvt. Ltd., the manufacturer of the cough syrup in question containing Codeine Phosphate, has a valid license in terms of Rule 70 of the Drugs and Cosmetics Rules, 1945 entitling it to manufacture all prescription drugs including Codeine mentioned in Schedule-H of the said rules.
7. M/s Maa Durga Enterprises (Consignor), as noted above, is the authorized distributor of M/s Windlas Biotech Private Limited. It is a licensed proprietorship concern holding licences both in Form 20B and 21B enabling it to sell or exhibit (or offer) for sale or distribute by wholesale, drugs specified in Schedule-H of the Drugs and Cosmetics Rules, 1945. The consignees viz., M/s Bimal Medical Agency as well as M/s Yash Enterprises also have valid licences under Form 20B and 21B to sell Schedule-H drugs including Codeine.
8. When the truck of the petitioner reached Madhepura with the consignment, the same was seized and an FIR vide Singheshwar P.S. Case No. 228 of 2020 was instituted for offenses punishable under Sections 8(c), 21(c), 22(c), 23, 24, 25, 27A and 29 of the NDPS Act, 1985 and Section 30(a) of the Bihar Prohibition and Excise Act, 2016 against the driver of the truck, the consignor, the consignees and the owner of the petitioner/company.
9. The contention of the petitioner before the courts below was that transporting the cough syrup with Codeine is neither illegal nor prohibited as cough syrup is not an intoxicant or a drug or a psychotropic substance.
10. The further contention of the petitioner was that the Central Government, in exercise of powers conferred under Section 2(xi)(b) of the NDPS Act vide S.O. No. 826(E) dated 14.11.1985, has declared Codeine (Methyl Morphine) and its salts (i.e. including Codei
