The content of the prohibited substance in a mixture and the quantity of the mixture are crucial factors in determining whether a product qualifies as a contraband under the NDPS Act.

JUDGMENT

Vibhu Bakhru, J. - The petitioner has filed the present petition, inter alia, praying for bail in Case No. SC/468 in Crime No.VIII/15/DZU/2019 dated 07.08.2019 under Sections 8 and 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

2. The said complaint was filed by Narcotic Control Bureau (NCB), New Delhi. It is NCB''s case that on 10.05.2019, secret information was received by one of the Intelligence Officers that one boy, who is proficient in Punjabi Language, will board a train to Punjab from Sakur Basti Railway Station and he may be carrying huge quantity of drugs. The aforesaid information was reduced to writing and on perusal of the same, the Superintendent NCB directed to take the necessary action. A team was constituted and at 0915 hours, they proceeded to the Railway Station and arrived there at 0950 hours. At their request, a team of Railway Police Force (RPF) also joined the proceedings. At 10.30 A.M., they noticed three persons on the platform approaching from the northern direction. One of them (the petitioner herein) was holding a white coloured plastic bag (plastic katta). The NCB team suspected the said persons and they were stopped and were informed of their rights. Presence of a Gazette Officer was requested and, on his arrival, the said NCB officials searched them in his presence. Nothing incriminating was found on either of them. However, the search of the white coloured bag carried by the petitioner yielded two black polythenes containing 57 bottles of "Onerex Cough Syrup" of 100 ml each. One of the ingredients of the cough syrup is codeine phosphate.

3. The statement of the petitioner under section 67 of the NDPS Act was recorded. He admitted to the recovery of the 57 bottles of Onerex cough syrup and disclosed that he had purchased the same from Bhagirath Place, New Delhi. The officials of NCB arrested the petitioner.

4. According to NCB, 57 bottles of Onerex Cough Syrup are contraband as they contained codeine phosphate. It is also alleged that the said quantity qualifies to be considered as a commercial quantity of the drug in question, namely, ''Codeine''.

5. Mr Dhaka, the learned counsel appearing for the petitioner contends that the cough syrup recovered was not narcotic drug as defined under Section 2(xiv) of the NDPS Act. He referred to the definition ''manufactured drug'', which reads as under:-

"Section 2(xi) "manufactured drug" means- (a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate; (b) any other narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare to be a manufactured drug."

6. He also referred to a Notification No.S.O.826(E) dated 14.11.1985 and S.O.40(E) dated 29.01.1993 and drew the attention of this Court to Entry 35, which pertains the substance Methyl Morphine (commonly known as ''Codeine''). The said Entry reads as under:-

"35. Methyl morphine (commonly known as ''Codeine'') and Ethyl morphine and their salts (including Dionine), all dilutions and preparations except those which are compounded with one or more other ingredients and containing not more than 100 milligrammes of the drug per dosage unit and with a concentration of not more than 2.5 % in undivided preparations and which have been established in Therapeutic practice."

7. Mr Dhaka submitted that the content of Codeine in the cough syrup was 0.17% and therefore, the cough syrup did not fall within the definition of a manufactured drug within the meaning of Section 2(xiv) of the NDPS Act.

8. The learned counsel petitioner also drew the attention of this Court to an order dated 26.10.2005 issued by the Drug Controller General of India, inter alia, directing that as under:-

"As you are aware there are number of Couth preparations like Corex of M/s. Pflzer Limited, Mumbai,