Patna High Court – Orders
Md. Parvez @ Md. Parwez @ Prawez vs The State Of Bihar on 28 July, 2026
Author: Ashok Kumar Pandey
Bench: Ashok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.37665 of 2026
Arising Out of PS. Case No.-155 Year-2024 Thana- JOGBANI District- Araria
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Md. Parvez @ Md. Parwez @ Prawez S/o Md. Elahi R/o Village and Post -
Rampur, P.S - Forbesganj, District - Araria
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Rahul Raj, Advocate.
For the Opposite Party/s : Mr. Prem Kumar Jha, APP
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CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
2 28-07-2026
Heard learned senior counsel for the petitioner and
learned APP for the State.
2. The petitioner has prayed for bail registered for the
offence punishable under Sections 21 and 22 of the Narcotic
Drugs & Psychotropic Substances Act, 1985.
3. The case of the prosecution, in short, is that 90
bottles, containing total of 9 liters of Eskuf Cough Syrup, along
with Nitravate-10 tablets, Nitrazip-10 tablets, and Spasm-
Proxyvon Plus capsules, were recovered from an e-rickshaw.
4. Learned counsel appearing on behalf of the petitioner
has submitted that the petitioner is innocent and has committed no
offence. He has been falsely implicated in the present case.
Learned counsel further submits that nothing has been recovered
from the possession of the petitioner. The alleged recovery, if any,
was made from an e-rickshaw and the driver of the said e-
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rickshaw stated that he was carrying the contraband for the
petitioner. It is further submitted that the witnesses to the seizure
list are police personnel and that the police have not complied
with Section 105 of the BNSS while making the seizure. Police
has also not complied with mandatory provision of Section 52A of
the NDPS Act. Learned counsel also submits that a statement has
been made in paragraph 3 of the bail petition that the petitioner
has no criminal antecedents and he is languishing in judicial
custody since 04.05.2025. It is next submitted that co-accused
Md. Irshad, who was apprehended along with the e-rickshaw, has
already been granted bail by this Court vide Cr. Misc. No. 73017
of 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
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% in undivided preparations and which have been established in
therapeutic practice.
6. In this case, Eskuf Cough Syrup, along with
Nitravate-10 tablets, Nitrazip-10 tablets, and Spasm-Proxyvon
Plus capsules have been recovered from an e-rickshaw 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. 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
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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 must be a licensed one. Such type of cases should
be filed under Drugs and Cosmetic Act. It is only the violation of
Drugs and Cosmetic Act whereas, police is invariably misusing
the procedure.
10. 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, Araria in connection with Jogbani P.S. Case
No. 155 of 2024.
(Ashok Kumar Pandey, J)
Sudhanshu/-
U T
