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2025 Supreme(Online)(Pat) 518
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.20522 of 2021 ======================================================
Om Logistics Limited, a company registered under Companies Act, 1956 having its registered address at 130 Transport Centre, Ring Road, P.S. West Punjabi Bagh, District West Punjabi Bagh, New Delhi through its authorised respresentative Shri Tap Narayan Pandey, male, aged 59 years, S/o Anirudh Pandey, R/o Makaan No. 200, Road No. 1D, P.S. Patliputra Colony, District Patna ... ... Petitioner/s Versus
1. The State of Bihar through the Chief Secretary, Govt. of Bihar, Patna
2. Additional Chief Secretary, Prohibition, Excise and Registration Department, Govt. of Bihar, Patna
3. Principal Secretary, Prohibition, Excise and Registration Department, Govt.
of Bihar, Patna
4. Excise Commissioner, Prohibition, Excise and Registration Department, Govt. of Bihar, Patna
5. The Collector cum District Magistrate, Madhepura
6. The Additional Collector cum Additional District Magistrate, Madhepura
7. Superintendent of Excise and Prohibition, Madhepura
8. The Superintendent of Police, Madhepura
9. The S.H.O., Singheshwar Police Station, Madhepura.
... ... Respondent/s ======================================================
with Criminal Writ Jurisdiction Case No. 558 of 2021 Arising Out of PS. Case No.-228 Year-2020 Thana- SINGHESHWAR District- Madhepura ======================================================
Sooryamani Prasad Pandey @ Sooryamani Pandey @ Suryamani Pandey S/O Lalta Prasad Pandey Resident Of War No.14, Noun Khurd, P.S-Hanumana, District-Rewa (Madhya Pradesh)
... ... Petitioner/s Versus
1. The State of Bihar Through The D.G.P. Bihar, Patna Bihar
2. The Director General of Police, Bihar, Patna
3. The Inspector General of Police, Darbhanga Range, Darbhanga 4. The Deputy Inspector General of Police, Koshi Range, Saharsa
5. The Superintendent of Police, Madhepura
6. The S.H.O., Singheshwar Police Station, Madhepura ... ... Respondent/s ======================================================
Appearance :
(In Civil Writ Jurisdiction Case No. 20522 of 2021)
For the Petitioner/s : Mr. Jitendra Kumar Singh, Sr. Advocate Mr. Harsh Singh, Advocate For the State : Mr. P.K. Shahi, A.G.
Mrs. Shama Sinha, AC to SC 5 For the Respondent/s : Mr. Nadim Seraj, G.P. 5 Mr. Asif Iqbal Niazi, AC to GP 5 Mr. Kumar Manish (SC 5)
(In Criminal Writ Jurisdiction Case No. 558 of 2021)
For the Petitioner/s : Mr. Harsh Singh, Advocate For the Respondent/s : Mr. Md. Nadim Seraj, G.P. 5 ======================================================
CORAM: HONOURABLE THE ACTING CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY
The court upheld the validity of a notification declaring Codeine-containing medicines as intoxicants, affirming the State's legislative competence to regulate substances for public health.
Headnote:(A) Bihar Prohibition and Excise Act, 2016 - Sections 3, 14, 15, 16, 27; Drugs and Cosmetics Act, 1940 - Sections 26A, 26B; Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 2(xi)(b) - Constitution of India - Article 47 - The petitioner challenges the validity of a notification declaring medicines containing Codeine as intoxicants, claiming it is ultra vires the Drugs and Cosmetics Act and beyond the legislative competence of the State. (Paras 1, 12, 25)
(B) The court finds that the notification is a legitimate exercise of power under Entry 8 of List II of the Seventh Schedule, aimed at preventing misuse of Codeine-based substances, and does not conflict with central laws. (Paras 75)
(C) The court emphasizes the importance of public health and the State's duty to regulate intoxicants under Article 47. (Paras 75)
Facts of the case:
The petitioner, a logistics company, transported Wiscof Cough Syrup containing Codeine, which was seized under the Bihar Prohibition and Excise Act. The petitioner contended that the syrup was legally manufactured and not an intoxicant. (Paras 5, 8)
Findings of Court:
The court upheld the notification's validity, stating it is within the State's legislative powers to regulate substances that can be misused as intoxicants. (Paras 75)
Issues: The main issues addressed include the constitutionality of the notification, the legislative competence of the State, and the definition of intoxicants under the relevant laws. (Paras 12, 25)
Ratio Decidendi: The court reasoned that the notification is a valid exercise of State power to regulate substances that can be misused, aligning with the State's constitutional obligation to protect public health. (Paras 75)
Result: The petition is dismissed, affirming the notification's validity.
CAV JUDGMENT
(Per: HONOURABLE THE ACTING CHIEF JUSTICE)
Date : 16-05-2025
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 (Met
