The court establishes that possession of commercial quantities of narcotics under the NDPS Act necessitates considering both the drug content and neutral substances in the total weight.

CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA ORAL ORDER

3 10-12-2025 Heard learned counsel for the petitioner and learned APP for the State.

2. The petitioner seeks regular bail in connection with Sri Nagar P.S. Case No. 63 of 2025, registered for the offence punishable under Section 21(c), 22(c), 25 and 29 of the N.D.P.S.

Act.

3. As per prosecution case, there is a recovery of 300 bottles containing 100 ML Codine Syrup in bottle (Total 30 Litres) from first Motorcycle Bearing Registration No. BR11BJ3215 and total 59.9 litres of Codine Cough Syrup recovered from second Motorcycle Bearing Registration No.

BR11BJ/3215.

4. Learned counsel for the petitioner has submitted that petitioner has committed no offence and he is a driver but the said motorcycle does not belong to the petitioner. He further submits that petitioner possesses three criminal antecedent and has been falsely implicated in the present case and he is in custody from 12.06.2025. He further submits that from perusal of the provisions of section of the Drugs and Cosmetics Act , 2008, it appears that these provisions are applicable on manufacture, seller and distributors and even if the alleged 300 bottles of cough syrup recovered from possession of the petitioner, he is the driver of the said vehicle. He further contended that only psychotropic substance contained in the contraband is required to be taken into consideration while determining quantity of prohibited drug i.e. Codeine Phosphate & Triprolidine Hydrochloride Syrup and not the whole of the mixture contained in the cough syrup. He further submits that there is no independent witness to support the prosecution case and petitioner has no concern with the alleged seized article nor he is beneficiary, hence prayed for bail.

5. Learned APP vehemently opposed the instant bail petition. He has further submitted that the total recovery is more than commercial quantity under the NDPS Act and the state government vide circular no. 11/Adhi. Karya.–01-06/2016/4027 published in Bihar Gazette dated 19.10.2016 notified all the medicines or medicinal preparation containing the Codeine and Dextropropoxyphene medicinal ingredients to be intoxicants for the purpose of aforesaid act.

6. To determine as to whether the petitioner was in actual possession of commercial quantity of Codeine, it is relevant to refer to the notification specifying small and commercial quantity for the purpose of the Act S.O. 1055 (E) dated 19th October, 2001 published in Gazette of India, Extra Part-II, Section 3 (ii) dated 19th October, 2001, as amended on 18.11.2009. As per entry 28 of the list, small quantity of Codeine is defined as 10 gram and a commercial quantity of Codeine is defined as 1kg.

7. The scheme of NDPS Act provides graded sentences for possession of small, intermediate and commercial quantities of narcotic drugs or psychotropic substances. Therefore, the penalties or the sentencing has a direct nexus with the amount of contraband psychotropic substance. 8. The Judgment of Hira Singh vs. Union of India ( AIR 2020 SC 3255 ) squarely covers the issue and the Hon’ble Supreme Court held that total weight of the manufactured drug or preparation including the neutral material is required to be considered while determining small quantity or commercial quantity.

9. In Hira Singh (supra), the three Judge Bench of the Hon’ble Supreme Court had held thus: -

“In case of seizure of mixture of Narcotic Drugs or Psychotropic substances with one or more neutral substance(s), the quantity of neutral substance(s) is not to be excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the “small or commercial quantity of Narcotic Drugs or Psychotropic Substances.”

10. The Hon’ble Supreme Court in the Intelligence Officer, Thiruvanantapuram vs. Naushad K.K. &