1. Application for pre-arrest bail under special criminal procedure code following registration of case for possession of alleged narcotic cough syrup containing prohibited substances while in commercial transit. (Para 2 , 3 , 4 )
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2026 Supreme(Online)(Gau) 24101
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Robin Phukan, J
Pawan Kumar Rajgarhia – Appellant
Versus
State of Assam – Respondent
AB/2530/2026
Important Points
Preparations containing codeine and its salts are governed by Schedule H of the Drugs and Cosmetic Rules rather than the NDPS Act, 1985, provided they are prescription drugs, and thus do not attract the provisions of the NDPS Act.
Subject
Criminal - Bail
Act Referred
NDPS Act, 1985: S.22(c), S.25, S.67
Bharatiya Nagarik Suraksha Sanhita, 2023: S.482
Drugs and Cosmetic Rules
Bharatiya Nagarik Suraksha Sanhita, 2023: S.482
Drugs and Cosmetic Rules
Headnote
(A) NDPS Act, 1985 - Narcotic Substances - Cough syrups containing codeine phosphate - Preparations containing codeine and its salts, as per the Drugs Controller General (India), fall under Schedule H of the Drugs and Cosmetic Rules and not under the provisions of the NDPS Act, provided they are prescription drugs. (Para 8)
(B) Pre-arrest Bail - Interim Protection - Grant of interim protection is permissible where the nature of the seized substance is disputed and supported by official guidelines indicating the substance is governed by the Drugs and Cosmetic Rules rather than the NDPS Act. (Para 9, 10)
Issues: Whether the seized cough syrup containing codeine phosphate falls under the NDPS Act or the Drugs and Cosmetic Rules, and whether the applicant is entitled to pre-arrest bail.
(B) Pre-arrest Bail - Interim Protection - Grant of interim protection is permissible where the nature of the seized substance is disputed and supported by official guidelines indicating the substance is governed by the Drugs and Cosmetic Rules rather than the NDPS Act. (Para 9, 10)
Issues: Whether the seized cough syrup containing codeine phosphate falls under the NDPS Act or the Drugs and Cosmetic Rules, and whether the applicant is entitled to pre-arrest bail.
Legal Category Hierarchy
Advocates:
For the Appellants/Petitioners: M Ahmed, A Hai
For the Respondents: PP, Assam, P. Borthakur
For the Appellants/Petitioners: M Ahmed, A Hai
For the Respondents: PP, Assam, P. Borthakur
Table of Contents
2. Applicant claims intercepted goods are medicinal preparations under prescribed regulatory licensing, while prosecution asserts seized substances constitute contraband under narcotic statutes requiring denial of relief. (Para 5 , 6 )
3. The court scrutinized regulatory documentation identifying the seized syrup as Schedule H drugs per governmental directives, distinguishing the current matter from cited precedent due to existing documentary evidence. (Para 7 , 8 )
4. Documentary evidence from regulatory authorities clarifying that specific medicinal formulations fall under drug licensing rules rather than narcotic statutes warrants interim protection against arrest. (Para 8 , 9 )
5. The court granted interim pre-arrest bail subject to the execution of a personal bond, surety, and specific conditions regarding interrogation, conduct, and geographical movement. (Para 10 , 11 )
6. Can drugs containing codeine and salts be classified as narcotic substances under the NDPS Act notwithstanding regulatory letters?
While the prosecution may rely on precedent to treat such substances as contraband, where valid documentation from regulatory authorities establishes that specific pharmacological preparations are governed by drug licensing laws rather than narcotic legislation, such evidence informs the court's discretion for interim relief. (Para 6 , 8 , 9 )
7. What conditions may a court impose while granting anticipatory or pre-arrest bail?
A court may mandate that the applicant cooperate with the investigating officer, refrain from inducing or threatening witnesses, and remain within the jurisdictional limits of the court to ensure legal compliance during the investigation. (Para 11 )
ORDER
Heard Mr. M. Ahmed, learned counsel for the applicant and also heard Mr. P.Borthakur, learned Additional Public Prosecutor, Assam, appearing for the State respondent.
2. Apprehending arrest in connection with Ramnathpur P.S. Case No.57/2026, under Section 22(c)/25 of the NDPS Act, 1985 , this application under Section 482 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, is preferred by the applicant, namely, Pawan Kumar Rajgarhia, for grant of the privilege of pre-arrest bail.
3. It is to be noted here that the above-noted case has been registered on the basis of one FIR lodged by S.I. Dharmendra Das of Ramnathpur P.S., on 21.09.2026.
4. The essence of allegation, as reflected in the aforementioned FIR is that a large quantity of cough syrup (suspected to be narcotic contraband) were recovered from a vehicle bearing Registration No.AS-01VC-4973, while the same were carried from Hailakandi side towards Mizoram via Ramnathpur and the driver of the said vehicle, namely, Sabirul Islam Laskar and the co-driver Masum Ahmed Talukdar were apprehended and during search, 10 nos. of cartons containing codeine phosphate and triproline hydrochloride syrup Phorex (Potent Cough Syrup) (narcotic substance) were found, which were kept concealed and hidden under the transport goods and on further search, 160 nos. of bottles of codeine phosphate and triproline hydrochloride syrup Phorex were recovered containing total 1600 bottles.
5. Mr. Ahmed, learned counsel for the applicant submits that the vehicle was hired by the company to transport the shipments from Guwahati to Churachandpur, Manipur and that the shipments were loaded at Narol, Gujarat and those were supposed to be delivered at Churachandpur, Manipur and the vehicle was changed at North Guwahati and the shipments were loaded in the vehicle bearing Registration No.AS-01VC-4973 and that at the time of booking the items, the invoice was also given to the transport company and in the invoices description of all medicines were stated clearly and E-way bills were also generated in the name of the transporter i.e. 'Maa Annapurna Transport' and the applicant is the Managing Director of the company and the seized codeine phosphate syrups are not narcotic drugs and psychotropic substances, but medicines and the applicant is innocent and no way involved with the offence alleged in the FIR and ready to cooperate with the investigating agency and therefore, it is contended to allow this application.
6. Per contra, Mr. Borthakur, learned Additional Public Prosecutor, Assam, has vehemently opposed the petition. Mr. Borthakur submits that in view of the decision of Hon'ble Supreme Court in the case of Md. Sahabuddin & Anr. v. State of Assam, reported in (2012) 13 SCC 213, the seized articles are contraband substance under the NDPS Act and that the I.O. has already issued notice under Section 67 of the NDPS Act and the applicant has not been appearing before the Court and under such circumstances, he has contended to dismiss the petition.
7. Having heard the submission of learned Advocates of both sides, this Court has carefully gone through the petition and the documents placed on record and also perused the notices under Section 67 (b) & (c) of the NDPS issued to the applicant and the reply submitted by him and also gone through the documents from Annexures-A, B, D11-A.
8. It appears that the applicant herein has all the relevant documents and the same are being enclosed with this application. And it also appears from the letter of the Drugs Controller General (India), dated 01.03.2009, that those preparations containing codeine and its salts do not fall under the provisions of NDPS Act and the Rules of 1985, but they fall under the Schedule H of the Drugs and Cosmetic Rules and are governed by the said Rules and stocking and sale of those drugs do not attract the provisions of the NDPS Act and Rules, 1985 and these formulations are prescription drugs and are to be dispensed on the pr
