Md. Jubair vs The State Of Bihar on 21 May, 2026

Patna High Court – Orders

Md. Jubair vs The State Of Bihar on 21 May, 2026

Author: Ashok Kumar Pandey

Bench: Ashok Kumar Pandey

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                              CRIMINAL MISCELLANEOUS No.33135 of 2026
                     Arising Out of PS. Case No.-10 Year-2026 Thana- SHAHKUND District- Bhagalpur
                 ======================================================
                 Md. Jubair, Son of Hakman, Resident of Village- Douna, P.S.- Amarpur,
                 District- Banka
                                                                         ... ... Petitioner/s
                                               Versus
                 The State of Bihar
                                                                  ... ... Opposite Party/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s     :       Mr. Swapnil Kumar Singh, Advocate
                 For the Opposite Party/s :       Mr. Satyendra Prasad, APP
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
                                       ORAL ORDER

2   21-05-2026

Heard the learned counsel for the petitioner and

learned APP for the State through Video Conferencing.

SPONSORED

2. The petitioner has prayed for regular bail in a case

registered for the offence punishable under Sections 20, 22 of

N.D.P.S Act and Section 30(a) of Bihar Excise and Prohibition

Act.

3. The case of the prosecution in brief is that, from

possession of this petitioner, altogether 33 bottles each of 100

ml Maxitox Premium cough syrup containing Codeine were

recovered.

4. Learned counsel for the petitioner has submitted

that, nothing has been recovered from the possession of this

petitioner. It is also submitted that all the witnesses to the

seizure list are police personnel, and the police have not

complied the mandatory provisions of Section 105 of the
Patna High Court CR. MISC. No.33135 of 2026(2) dt.21-05-2026
2/4

B.N.S.S. while making the Seizure List. Learned counsel for the

petitioner also submits that the petitioner is innocent and he has

falsely been implicated in this case. It has further been

submitted by the learned counsel for the petitioner that

petitioner is having three criminal antecedents and that are not

of similar nature. He is in custody since 14.01.2026.

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, Codeine Cough syrup containing

codeine phosphate has been recovered from the motorcycle and
Patna High Court CR. MISC. No.33135 of 2026(2) dt.21-05-2026
3/4

the concentration of the codeine in this drug is approximately

0.2% which 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 from the

possession of the 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 like amount each to the satisfaction of the learned CJM,

Bhagalpur/concerned Court, in connection with Shahkund P.S.
Patna High Court CR. MISC. No.33135 of 2026(2) dt.21-05-2026
4/4

Case No. 10 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 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.

                                           (Ashok Kumar Pandey, J)
khushbu/Ritwika

U      T