ORAL ORDER

Heard learned counsel for the petitioner and learned APP for the State.

2. The petitioner has prayed for bail in connection with NDPS Spl. Case No. 28 of 2026 arising out of Chautham P.S. Case No. 157 of 2026 registered for the offence punishable under Sections 21(c), 8(c) and 29 of the NDPS Act.

3. The case of the prosecution, in short, is that from a pick-up van, altogether 484 liters of Cough Linctur RJT-SCEN syrup containing codeine was recovered.

4. Learned counsel appearing on behalf of the petitioner has submitted that petitioner is innocent and has committed no offence. He has falsely been implicated in this case. It has further been submitted that nothing has been recovered from the possession of the petitioner. It has further been submitted that the petitioner was only standing near the said pick-up. He is not concerned in any way with the alleged pick-up and recovery. It has further been submitted that the witnesses of the seizure list are police personnel and police have not complied Section 105 of the BNSS while making seizure. Petitioner is having no criminal antecedent and he is in judicial custody since 16.05.2026. It has also been submitted that similarly situated co-accused person has already been granted bail by this Court vide Cr. Misc. No. 58140 of 2026.

5. Learned counsel for the petitioner has further 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, Cough Linctur RJT-SCEN Syrup containing codeine has been recovered and the concentration of the codeine in this drug is less than 2.5% as provided in the above notification. This is only contravention of Drugs and Cosmetics Act.

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 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 like amount each to the satisfaction of the learned Special Judge, NDPS Act, Khagaria in connection with N.D.P.S. Spl. Case No. 28 of 2026 arising out of Chautham P.S. Case No. 157 of 2026.

10. Before parting, it is very strange that the cases where cough syrups containing codeine are recovered, the police is invariably filing cases under N.D.P.S. Act whereas in view of the notification of Central Government (supra) concentration of codeine being less than 2.5 %, the quantity does not come under the ambit of contraband. Cough syrup containing codeine is only a Schedule-H drug for which, the shopkeeper has to maintain register and he mu