Patna High Court – Orders
Chandan Kumar vs The State Of Bihar on 2 July, 2026
Author: Ashok Kumar Pandey
Bench: Ashok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.43053 of 2026
Arising Out of PS. Case No.-134 Year-2026 Thana- CHAUTHAM District- Khagaria
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Chandan Kumar S/O Late Lakhandeo Roy R/O Village- Gulmahiyachak
Sabalpur, P.S.- Nadi, Distt.- Patna.
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Pramod Kumar, Advocate
For the Opposite Party/s : Mr. Sanjay Kumar Singh, APP
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CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
2 02-07-2026
Heard learned counsel for the petitioner and learned
APP for the State.
2. The petitioner has prayed for bail in connection
with NDPS Special Case No.21 of 2026 arising out of
Chautham P.S. Case No.134 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
truck loaded with 7140 bottles of Sephax-TC of 100ml each
altogether 714 litres containing codeine was recovered.
4. Learned counsel appearing on behalf of the
petitioner has submitted that nothing has been recovered from
the possession of this petitioner. 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
Patna High Court CR. MISC. No.43053 of 2026(2) dt.02-07-2026
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making seizure. It has further been submitted that the petitioner
is co-driver of the said truck. It has further been submitted that
the petitioner is having no criminal antecedent and he is in
judicial custody since 22.04.2026.
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, Sephax-TC containing codeine has
been recovered from the truck and the concentration of the
codeine in this drug ranges between 0.2% to 0.4% which is less
than 2.5% as provided in the above notification.
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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 Court
of Special Judge (NDPS Act), Khagaria in connection with
NDPS Special Case No.21 of 2026 arising out of Chautham P.S.
Case No.134 of 2026.
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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)
durgesh/-
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