Patna High Court – Orders
Vijay Kumar vs The State Of Bihar on 9 April, 2026
Author: Arun Kumar Jha
Bench: Mohit Kumar Shah, Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.285 of 2025
Arising Out of PS. Case No.-379 Year-2022 Thana- BODHGAYA District- Gaya
======================================================
Vijay Kumar, S/o Ram Charitra Chaudhary, Resident of village- Kendui, P.S-
Magadh Medical, District- Gaya, Bihar
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 291 of 2025
Arising Out of PS. Case No.-379 Year-2022 Thana- BODHGAYA District- Gaya
======================================================
Dharmendra Kumar, S/o Jatan Chaudhary, Resident of Kendui, P.S- Magadh
Medical, District- Gaya, Bihar
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 657 of 2025
Arising Out of PS. Case No.-379 Year-2022 Thana- BODHGAYA District- Gaya
======================================================
Ravindra Kumar, son of Pun Choudhari, resident of village - Chanhua Durjan
Khap, P.S- Mohanpur, District- Gaya
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 285 of 2025)
For the Appellant/s : Mr.Ritwaj Raman, Advocate
Ms. Shashi Priya, Advocate
Ms. Pankhuri, Advocate
For the Respondent/s : Ms. Shashi Bala Verma, APP
(In CRIMINAL APPEAL (DB) No. 291 of 2025)
For the Appellant/s : Mr.Ritwaj Raman, Advocate
Ms. Shashi Priya, Advocate
Ms. Pankhuri, Advocate
For the Respondent/s : Ms. Shashi Bala Verma, APP
(In CRIMINAL APPEAL (DB) No. 657 of 2025)
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
For the Respondent/s : Ms. Shashi Bala Verma, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
and
HONOURABLE MR. JUSTICE ARUN KUMAR JHA
Patna High Court CR. APP (DB) No.285 of 2025(16) dt.09-04-2026
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ORAL ORDER
(Per: HONOURABLE MR. JUSTICE ARUN KUMAR JHA)
16 09-04-2026
The records of the aforesaid three appeals have been
put up under the heading ‘For Orders’ on the point of suspension
of sentence and grant of bail to the appellants, who have been
convicted under Section 21(c) of Narcotic Drugs and
Psychotropic Substance Act, 1985 (hereinafter referred to as
‘NDPS Act‘) by the learned court of Additional Sessions Judge-
II-cum-Special Judge, NDPS Act, Gaya in NDPS Case No.
39/2022, arising out of Bodh Gaya P.S. Case No. 379/2022 vide
judgment of conviction dated 07.01.2025 and have been
sentenced to undergo rigorous imprisonment for 15 years with
fine of Rs.1,50,000/- and in default of payment of the fine, they
have been further directed to undergo simple imprisonment for a
term of one month for each fraction of fine of Rs.10,000/- vide
order of sentence dated 08.01.2025. Aggrieved by the judgment
of conviction and order of sentence, the appellants have
approached this Court by filing these appeals.
2. Brief facts of the case, as culled out from the records,
are that on 26.06.2022, while the informant had been on
patrolling duty with other police personnel, he received a
message from the SHO of Bodh Gaya Police Station regarding
three persons riding two motorcycles going to a hotel on NH 83
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for making delivery of consignment of Heroin. The informant
was told about appointment of one Kamal Nayan Kashyap,
Circle Officer, Bodh Gaya, as a Magistrate and also about
deployment of Panther constables to the spot. The informant
reached the spot in front of the named hotel where the
Magistrate and Panther constables also came and checking of
vehicles was started. At around 6:45 P.M., the informant found
three riders coming on two motorcycles, who were signaled to
stop, but on seeing the police party they tried to take a U-turn
and escape. Nonetheless, they were chased and the police party
caught them. The appellants Dharmendra Kumar and Ravindra
Kumar were found riding a Glamour Motorcycle bearing
Registration No.BR-02AN-1073 keeping a bag in between them
whereas the appellant Vijay Kumar had been riding a Pulsar
Motorcycle bearing Registration No.BR-02BC-2885 and he was
found having a white plastic bag hanging from the handle of the
motorcycle. The appellants were served with notice under
Section 50 of the NDPS Act. The appellants had asked for their
search before the Magistrate and as no person from public was
willing to become witness to the search, two police constables
were made witness of the search of the appellants. From the
motorcycle driven by the appellants Dharmendra Kumar and
Ravindra Kumar, recovery of 1.006 Kg of heroin like substance
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was made, whereas from the motorcycle driven by appellant
Vijay Kumar, recovery of 1.012 Kg of heroin like substance was
made. On testing the seized articles by DD Kit, prima facie
evidence of contraband containing heroin was found. Apart
from the contraband, mobile phones and motorcycles were also
seized. On interrogation, the apprehended persons named co-
accused Ram Chaudhary, who provided the appellants with
contraband. The seizure memo was prepared and the appellants
were brought to the police station with the seized articles.
3. On the basis of written information of the informant,
Bodh Gaya P.S. Case No. 379 of 2022 was registered under
Sections 8, 21(c), 25 and 29 of the NDPS Act. After
investigation, police submitted charge sheet against the accused
persons for offences under Sections 8, 21(c), 25 and 29 of the
NDPS Act and the learned Sessions Judge, Gaya vide order
dated 12.10.2022 took cognizance for the offences under
Section 8, 21(c), 25 and 29 of the NDPS Act. On 04.07.2024,
charges for the offences under Sections 21(c), 25 and 29 of
NDPS Act were framed against the accused persons. It further
transpires that after considering the evidence brought on record,
the learned trial court convicted the accused persons, who are
appellants before this Court and sentenced them as already
detailed hereinbefore.
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4. Mr. Ajay Kumar Thakur, learned counsel for the
appellants while assailing the impugned judgment of conviction
and order of sentence on a number of grounds has submitted
that the judgment of conviction and order of sentence are
completely erroneous as no offence under any of the provisions
of the NDPS Act is made out against the appellants. At the
outset, Mr. Thakur drew our attention to the FSL report dated
28.03.2023 (Exhibit 15) and has submitted that the result of the
report of contraband seized from the appellants shows that the
seized substance is “Phenothiazine along with Promethazine”.
Mr. Thakur has further submitted that these substances namely
“Phenothiazine” and “Promethazine” are neither narcotic drugs
nor psychotropic substance under the NDPS Act. Mr. Thakur
has next submitted that these substances are not covered under
the Schedule appended with the NDPS Act wherein list of
psychotropic substance have been provided. Mr. Thakur has also
submitted that these two compounds have not been notified as
narcotic drug and psychotropic substance by any government
notification, rather they are compounds which are covered by
Drugs and Cosmetics Act, 1940 and are having antihistamine
and antipsychotic properties and are used in medicines.
5. Mr. Thakur has contended that the substances
‘Phenothiazine’ and ‘Promethazine’ are specified under
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Schedule H and Schedule G, respectively of the Drugs Rules,
1945. The substance Phenothiazine has been mentioned as item
no.397 in Schedule H. Similarly, the substance Promethazine is
covered under Schedule G of Drugs Rules, 1945. Schedule G
relates to Rule 97 of the Drugs Rules which pertains to the
labelling of medicines, whereas Schedule H derives its authority
from both Rule 97 and Rule 65 of the Drugs Rules. Similarly
Promethazine is covered under Schedule G of Drugs Rules,
1945 which is said to be an antihistamine substance. Mr.
Thakur has also submitted that if supply of any drugs under
Schedule H is made, the particulars are to be entered in the
register and Rule 65(3)(1)(f) of Drugs Rules, 1945 further
prescribes mentioning the name of manufacturer of drugs and its
batch number and the date of expiry of potency. In case of
violation of these conditions, the same would be punishable
under Section 27 of the Drugs and Cosmetics Act, 1940. Mr.
Thakur has contended that for argument sake if it is supposed
that any violation of the provisions of the Drugs and Cosmetics
Act, 1940 and the Drugs Rules, 1945 are made, the same would
be punishable under the Drugs and Cosmetics Act, 1940 and not
under the NDPS Act. Mr. Thakur has further submitted that the
power granted to Central Government under Section 3 of NDPS
Act to add or omit from the list of psychotropic substances has
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not been exercised to include Phenothiazine and Promethazine
in the said list and, therefore, these two substances do not find
mention in the gazette notification no. S.O. 1055(E) dated
19.10.2001 or any other gazette notification which has been
published till date by the Central Government for adding the
names of substances in the list of psychotropic substances. Thus,
Mr. Thakur has submitted that Phenothiazine and Promethazine
do not find mention under the list of narcotic drugs or
psychotropic substances, hence, conviction can not be sustained
under any of the provisions of the NDPS Act. Mr. Thakur has
referred to the case of Aditya Raj @ Suraj Kumar vs. State of
Bihar (Cr. Misc. No. 72197 of 2022) wherein seizure of
Phenothiazine and Promethazine was made and a report was
called for from the FSL as to whether the substance was
psychotropic substance or not. The FSL, in its report dated
08.04.2023, clarified that seized substance is not a psychotropic
substance and on this ground bail was granted to the petitioner
of the said case vide order dated 27.04.2023. Similar issue was
raised in Roshan Lal vs. State of Bihar (Cr. Misc. No. 39411
of 2020) wherein a form of Phenothiazine and Promethazine
were seized. The Union of India, by way of an affidavit,
admitted that as per the opinion of the FSL, Patna, recovered
substances do not fall under the NDPS Act or the Schedule
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thereto. Thus, Mr. Thakur has finally contended that in the
background of the aforesaid facts and circumstances, the
judgment of conviction and order of sentence qua the appellants
are illegal and unsustainable, hence during pendency of the
aforesaid appeals, the appellants be enlarged on bail after
suspending their sentence.
6. Ms. Shashi Bala Verma, learned APP, appearing on
behalf of the State has though conceded that the seized
substances do not find mention in the list of psychotropic
substances under the NDPS Act, but has contended that these
substances are used as ‘cutting agent’ to enhance the potency.
The learned APP has further submitted that the expression
“cutting agent” is used in forensic and narcotics parlance to
denote a substance which is mixed with an illicit narcotic drug
for specific purposes, namely, (i) to increase the bulk/ weight of
the contraband so as to maximise illegal profit; (ii) to reduce the
purity/ strength of the narcotic substance and thereby make it
suitable for street-level sale; (iii) to modify, mimic or enhance
the Pharmacological effect (such as sedation or euphoria)
perceived by the consumer; and (iv) to mask the identity of the
narcotic drug and to evade detection during preliminary
screening. The learned APP has further submitted that the seized
substances are capable of enhancing sedative effects and are
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used for dilution/adulteration and in the DD Kit testing, which is
used for prima facie test, a positive result for Heroin was found.
The learned APP has further submitted that NDPS Act is special
statute enacted with a clear legislative intention to curb the
growing menace of drug abuse and illicit trafficking by
providing stringent control over narcotic drugs and psychotropic
substances, by ensuring that offenders dealing in such
contraband are dealt with strictly, particularly in cases involving
commercial quantity. The object of the NDPS Act is not merely
to regulate scheduled substances in isolation, but to effectively
combat illicit drug trade and the public health hazards arsing
thereform. If an unduly narrow interpretation is adopted in such
matters, the very purpose and object of the NDPS Act would be
defeated.
7. We have given our thoughtful consideration to the
rival submission of the parties and perused the record.
8. Section 2 (xiv) of the NDPS Act defines “narcotic
drug” to mean coca leaf, cannabis (hemp), opium poppy straw
and includes all manufactured drugs. Similarly Section 2 (xxiii)
defines “Psychotropic Substance” as any substance, natural or
synthetic, or any natural material or any salt or preparation of
such substance or material included in the list of psychotropic
substances specified in the Schedule. Thus, these provisions
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broadly define the contours under which a substance would be
qualified to be classified as a narcotic drug or psychotropic
substance.
9. Further power has been given to the Central
Government to add or omit from the list of psychotropic
substances. Section 3 of the NDPS Act reads as under :
“3. Power to add to or omit from the list of
psychotropic substances.–The Central Government
may, if satisfied that it is necessary or expedient so to
do on the basis of– (a) the information and evidence
which has become available to it with respect to the
nature and effects of, and the abuse or the scope for
abuse of, any substance (natural or synthetic) or
natural material or any salt or preparation of such
substance or material; and (b) the modifications or
provisions (if any) which have been made to, or in, any
International Convention with respect to such
substance, natural material or salt or preparation of
such substance or material, by notification in the
Official Gazette, add to, or, as the case may be, omit
from, the list of psychotropic substances specified in the
Schedule such substance or natural material or salt or
preparation of such substance or material”.
10. Under the mandate of Section 3 of the NDPS Act,
the Central Government from time to time can add or omit
substances from the list of psychotropic substances. The
Schedule attached with the NDPS Act provides the list of
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psychotropic substances under Clause (xxiii) of Section 2 as on
date since certain substances have been substituted/inserted time
to time. But this list does not contain either Phenothiazine or
Promethazine. Similarly, Schedule I of NDPS Rules, 1985,
which contains a list of narcotic drugs and psychotropic
substances for which import into and export out of India has
been provided for medical, scientific and training purposes, also
does not contain the aforementioned two substances, i.e.,
Phenothiazine and Promethazine.
11. It is pertinent to take note of the fact here that the
Central Government has issued a notification bearing no. S.O.
1055(E) dated 19.10.2001 wherein exercising the power under
clauses (viia) and (xxiiia) of Section 2 of NDPS Act, a table has
been provided wherein while mentioning the names of narcotic
drug and psychotropic substance, their small and commercial
quantity have been prescribed respectively. But even this list
does not contain either Phenothiazine or Promethazine.
However, the substances Phenothiazine and Promethazine find
mention under Schedule H and G, respectively of the Drugs
Rules, 1945. The substance “Phenothiazine, derivatives of and
salts of its derivatives” has been mentioned as item no.397 in
Schedule H. Similarly, the substance “Promethazine” has been
mentioned under the heading ‘Antihistaninic substances the
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following, their salts, their derivatives, salts of their derivatives’
in Schedule G of Drugs Rules, 1945. These two Schedules are
relatable to Rule 65 and 97 of the Drugs Rules, 1945. Rule 65
deals with condition of licenses and Rule 97 deals with the
labelling of medicines.
12. Cumulative reading of these two provisions makes it
clear as to how licenses are to be provided and what condition
should be imposed while providing licenses and at the same
time how labelling of these medicines are to be done. Violation
of the conditions of the provision in this regard has been made
punishable under Section 27 of the Drugs and Cosmetics Act,
1940, which prescribes penalty for manufacture, sale, etc. of
drugs in contravention of Chapter IV.
13. Further it is also pertinent to take note of the law in
this regard to the effect that if any cognizable offence has been
committed under Chapter IV of Drugs and Cosmetics Act, 1940,
the police is not empowered to register an FIR. It has been held
by the Hon’ble Supreme Court in the case of Union of India vs.
Ashok Kumar Sharma and Ors. reported in (2021) 12 SCC 674
that for the offence under Chapter IV of the Drugs and
Cosmetics Act, 1940, the Drug Inspector alone is authorized to
register an FIR and arrest the offender.
14. Further in the case of Bablu @ Rajesh Kumar vs.
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The State of Bihar & Ors. reported in 2021(3) PLJR 220, the
Hon’ble Special Bench of this Court has held that police has no
power to institute FIR and investigate the offences under
Chapter III, IV and IV-A of the Drugs and Cosmetics Act, 1940.
The Hon’ble Special Bench further held that the prosecution
under Section 32 of the Drugs and Cosmetics Act, 1940 shall be
instituted only by way of filing of complaint and that police
cannot register and investigate offences under Chapter IV. Thus,
the prosecution for violation of any of the offences under the
Drugs and Cosmetics Act, 1940 is not maintainable on a police
complaint.
15. The discussions made hereinbefore clearly shows
that the seized articles which have been found to be
Phenothiazine and Promethazine do not come within the ambit
of any narcotic drug and psychotropic substances for the
purposes of NDPS Act. Therefore, the judgment of conviction
and order of sentence qua the appellants for possession of these
two substances, prima facie, appears to be against the provisions
of the NDPS Act and might not be sustainable, hence we find
that the appellants have been able to make out a strong case in
their favour for suspension of sentence and grant of bail to them
during the pendency of their respective appeals. Therefore, we
are inclined to suspend the sentence and release the appellants
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on bail during the pendency of their respective appeals.
16. Accordingly, we direct suspension of order of
sentence dated 08.01.2025 qua the appellants above-named as
also direct to release them on bail, during the pendency of their
respective appeals, on furnishing bail bonds of Rs.10,000/-(Ten
Thousand) each with two sureties of the like amount each to the
satisfaction of learned Additional Sessions Judge-II-cum-the
Special Judge (NDPS Act), Gaya, in connection with NDPS
Case No. 39/2022, arising out of Bodh Gaya P.S. Case No. 379
of 2022.
17. It is made clear that the discussion hereinbefore
has been made for the purpose of suspension of sentence of the
appellants and their release on bail during the pendency of their
respective appeals and their respective appeals would be taken
up for consideration on the merit of their respective cases,
without any prejudice being caused by the present order.
18. List the aforesaid appeals for hearing in their own
turn.
(Mohit Kumar Shah, J)
( Arun Kumar Jha, J)
V.K.Pandey/-
U T