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2026 Supreme(Online)(Pat) 2193
IN THE HIGH COURT OF JUDICATURE AT PATNA
Ashok Kumar Pandey, J
Ajay Kumar Thakur
CRIMINAL MISCELLANEOUS No.1103 of 2026
For the Appellants/Petitioners: Sanjay Kumar Jha
For the Respondents: Bharat Bhushan
If a drug preparation is exempted under a government notification (e.g., concentration below 2.5% for codeine), it is not considered a narcotic drug under Section 2(d) of the NDPS Act, thus negating the jurisdictional basis for prosecution regardless of the quantity recovered.
Headnote:The case involves allegations under Sections 27(b)(ii)/28 of the Drugs and Cosmetic Act and Sections 20/21/22 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, following the recovery of 20 bottles of Codeine cough syrup and 43 capsules of Spasmo Proxyvon Plus from the possession of the petitioner and another. The petitioner sought bail, contending that the recovered syrup's codeine concentration was below 2.5%, qualifying it as an exempted manufactured drug under Notification No. S.O. 826(E) dated 14.11.1985, and alleging non-compliance with Section 105 of the BNSS during seizure. The primary issue is whether the recovered substance constitutes a narcotic drug under the NDPS Act. The court reasoned that if a preparation is exempted as a manufactured drug under government notification because its concentration is below the prescribed limit, it does not qualify as a narcotic drug under Section 2(d) of the NDPS Act. Consequently, there is no jurisdictional basis for the case, rendering the question of quantity irrelevant. The above named petitioner is directed to be enlarged on bail on furnishing bail bond of Rs. 10,000/- (Rs. ten thousand only) with two sureties of the like amount each to the satisfaction of the learned Principal Sessions Judge, Madhubani in connection with Laukaha P.S. Case No. 158 of 2025.
| Table of Content |
|---|
| 1. procedural initiation of bail application and summary of prosecution facts regarding drug recovery. (Para 1 , 2 , 3) |
| 2. exemption of certain drug preparations from ndps act based on concentration limits per government notification. (Para 4 , 5 , 6) |
| 3. argument regarding the inclusion of non-toxic materials in the total weight of contraband. (Para 7) |
| 4. lack of jurisdictional basis for prosecution if the substance does not qualify as a narcotic drug. (Para 8) |
| 5. grant of bail based on the absence of jurisdictional basis for the charges. (Para 9) |
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Appearance :
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CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
2 05-02-2026 Heard Mr. Sanjay Kumar Jha, learned senior counsel for the petitioner and Mr. Bharat Bhushan, learned APP for the State.
2. The petitioner has prayed for bail in connection with Laukaha P.S. Case No. 158 of 2025 registered for the offence punishable under Sections 27(b)(ii)/28 of Drugs and Cosmetic Act and Sections 20/21/22 of the NDPS Act.
3. The case of the prosecution, in short, is that from the possession of this petitioner and one another altogether 20 bottles of Codeine cough syrup (Onerex and Wixdin) and 43 capsules of Spasmo Proxyvon Plus were recovered from two yellow sacks.
4. Learned counsel appearing on behalf of the petitioner has submitted that petitioner is innocent and has committed no offence. He has been falsely implicated in this case. Learned counsel for the petitioner submits that nothing has been recovered from the possession of this petitioner. The witness of the seizure list are police personnel and the police have not complied with Section 105 of the BNSS while making the seizure. He further submits that a statement has been made in para 3 of the petition that petitioner has no criminal antecedent and he is languishing in judicial custody since 21.09.2025.
5. Learned counsel for the petitioner has submitted that Under Notification No. S.O. 826(E) dated 14.11.1985 under the Narcotic Drugs and Psychotropic Substances Act and Rules, 1985 that preparations are exempted as manufactured drugs provided the preparations contained the narcotic drugs to the extent permitted in respect of codeine under Entry No. 35. It is stated that codeine and ethyle morphine and their salts including dionine all dilutions and preparations are considered to be manufactured drugs except those which are compounded with one or more other ingredients and containing not more than 100 miligrams of the drugs per doses unit and with a concentration of not more than 2.5 % in undivided preparations and which have been established in therapeutic practice.
6. In this case, Onerex Cough Syrup has been recovered from the possession of the petitioner and the concentration of the codeine in this drug is less than 2.5% as provided in the above notification.
7. Learned APP appearing for the State has vehemently the application for bail and has submitted that in the case of Hira Singh and Anr. V. Union of India and Anr., the Hon’ble Supreme Court has held that entire non-toxic material which is mixed with the contraband will be considered as the contraband and as such, the quantity which has been recovered form the possession of this petitioner is commercial quantity.
8. In this regard, it is worth mentioning that in view of Section 2(d) of the N.D.P.S. Act, the drug itself is not narcotic drug then there is no jurisdictional basis for the case and the Court would not have a reason to go into the question of quantities. The Central Government has power to issue notification time to time.
9. Having heard learned counsel for the parties and considering the facts and circumstances of the case, this Court is inclined to enlarge the petitioner on bail. The above named petitioner is directed to be enlarged on bail on furnishing bail bond of Rs. 10,000/- (Rs. ten thousand only) with two sureties of the li
