Possession of cough syrup containing codeine qualifies as a narcotic under the NDPS Act, with strict bail conditions imposed that were not satisfied in this case.

JUDGMENT :

Jitendra Kumar, J.

Introduction

The present Criminal Miscellaneous petition has been filed under Sections 483 and 484 of the B.N.S.S., 2023 for regular bail in connection with Harlakhi P.S. Case No. 64 of 2025, corresponding to G.R. No. 24 of 2025, dated 19.03.2025, registered for the offences punishable under Sections 20 and 22 of the N.D.P.S., Act, pending in the Court of learned Principal Sessions Judge-cum-Special Court, N.D.P.S. Act, Madhubani.

Prosecution Case

2. The prosecution case, as emerging from the written report of the SSB personnel, is that the informant along with five S.S.B, personnel were on check-post duty. They got information that some intoxicating medicine is being carried by a four wheeler of silver colour. Subsequently, they intercepted one such vehicle going from India to Nepal and in the presence of the driver and one person sitting in the car, the vehicle was searched, and hence, the intoxicating medicine was recovered from below the seat of the car, the medicine comprising forty bottles of 100 ml each containing codeine phosphate & Triprolidine Hydrochloride cough syrup, oxerex, bearing B. NO ONTS-1663. The persons who were present in the car were the Petitioner and co-accused, Giban Patal. The vehicle Tata Indigo Manza (Four wheeler)-01 bearing Reg No. BaE 2295, Eng. No. 101A20000557474, CH NO-MAT613421FPA04429, and the recovered one mobile phone OPPO RAENO-8 5G along with two sim cards bearing IMEI-86539206416654, IMEI-2- 865392064126647 were also seized. The two persons, including the Petitioner and the co-accused, Giban Patal, who were found in the car were also arrested and FIR was lodged against them.

Rejection of Anticipatory Bail Petition of the petitioner by learned Special Court NDPS, Madhubani

3. Prior to moving this Court, the petitioner had preferred anticipatory bail petition before the Special Court, NDPS, Madhubani. However, his anticipatory bail application was rejected by learned Special Court, holding that 40 bottles of cough syrup have been recovered from the vehicle of the petitioner and the amount of the contraband constitutes commercial quantity in the light of Hira Singh v. Union of India , as reported in (2020) 20 SCC 272 . It has been also found by learned Special Court that in the case diary, the witnesses who have been examined, have supported the prosecution case against the petitioner and hence, in the light of Section 37 of the NDPS Act, his anticipatory bail petition was rejected.

4. I heard learned counsel for the petitioner and learned APP for the State.

Submission on behalf of the Petitioner

5. Learned counsel for the Petitioner submits that the Petitioner is innocent and has falsely been implicated in this case. He further submits that the prosecution against the Petitioner is vitiated in view of the non-compliance of the mandatory provisions of Section 42 of the N.D.P.S., Act at the time of making search and seizure.

6. He further submits that the alleged contraband recovered from the Petitioner is not a narcotic drug and psychotropic substance punishable under the N.D.P.S., Act. It is cough syrup containing less than 2.5 per cent codeine of the total preparation. Hence, it is an essential drug, not punishable under the N.D.P.S., Act. At the most, the Petitioner may be prosecuted under the Drugs and Cosmetics Act, 1940. In this context, he refers to and relies upon Vibhor Rana v. Union of India , 2021 SCC OnLine All 908.

7. In Vibhor Rana case (supra), Allahabad High Court was seized with the writ petition, involving question w