JUDGMENT : SANJEEV KUMAR SHARMA, J. Heard Mr. S. Hussain, learned counsel appearing for the petitioners. Also heard Mr. R.J. Baruah, learned Additional Public Prosecutor appearing for the State. 2. This application under Section 483 BNSS, 2023, has been filed by the accused petitioners, namely, Younus Khan @ Yunus Khan and Yusub Khan and Yousuf Khan, praying for grant of bail in connection with Dhubri P.S. Case No. 330/2025, under Sections 22(C)/27 of the NDPS Act. 3. An FIR was lodged on 28.07.2025 by one Moanty Basumatary, S.I., Dhubri Police Station alleging that on 27.07.2025, after receipt of information of drug peddlers, namely, Younus Khan, the police team arrived at the house of the said Younus Khan and conducted a search operation, after search, the police seized about 34 nos. of bottles of Phensigrip Anti-Allergic Anti Tussive Dry Cough Syrup from the bag of Yusub Khan and 17 nos. of bottles of Phensigrip Anti Allergic Tussive Dry Court Syrup from the bag of Younus Khan and both are brothers. 4. After receipt of the FIR, Dhubri P.S. Case No. 330/2025, under Sections 22(C)/27 of the NDPS Act was registered against the accused persons named in the FIR. Subsequently, after investigation, the police on the basis of the statement made by the arrested persons, the accused-applicant, namely, Jannatul Islam was arrested on 02.08.2025 and since then he is behind the bars. 5. After investigation, the police filed a Charge Sheet vide C.S. No.354/2025 dated 28.09.2025 against 3 (three) accused persons including the present 2 (two) petitioners. The subsequently charge was framed under Section 22 (c)/27 of the NDPS Act against the present petitioners. 6. It has been stated at paragraph 5 of the instant bail application as follows:- “That the accused/petitioners begs to state that on explicit perusal of the allegation that has been narrated in the FIR and Forwarding Report, it is apparent that offence under Section 27/22(c) of the Narcotic Drugs and Psychotropic Substances Act made out against them as 17 nos. of Phensigrip Anti-Allergic anti tussive Dry Cough Syrup were seized from the accused/petitioner no.1 and 34 nos. of Phensigrip Anti-Allergic anti tussive Dry Cough Syrup were seized from the accused/petitioner no.2 as per seizure list but as per inventory there is no actual weight of the contrabands and which category of drugs/narocotics which creates doubt whether the contrabands will comes under the commercial quantity/NDPS Act or not”. of Phensigrip Anti-Allergic anti tussive Dry Cough Syrup were seized from the accused/petitioner no.2 as per seizure list but as per inventory there is no actual weight of the contrabands and which category of drugs/narocotics which creates doubt whether the contrabands will comes under the commercial quantity/NDPS Act or not”. 7. Therefore, recovery of the contraband from the possession of the petitioners is not disputed. The dispute, if any, is with regard to the quantity as per the pleadings of the petitioners. 8. It is the further case of the petitioners, as stated in the instant bail application, that the Notice under Sections 47 and 48 of BNSS have not been properly served by informing the notices of the grounds of arrest. However, it has not been stated anywhere as to how the aforesaid provisions have not been complied with. 9. As regards the first contention regarding quantity, a perusal of the seizure list as well as the inventory prepared by the police and certified by the magistrate could show that 51 numbers of bottles of Phensigrip and dry Cough syrup of 100 ml each was seized and as per FSL report, the samples of the same seized items sent for chemical analysis confirmed the presence of codeine (codeine phosphate) in the said samples. Therefore, the quantity of Cough Syrup is well in excess of the limit of 1000 milligrams and therefore the same amounts to commercial quantity. It may be noted at this stage that in, Hira Singh and another – Vs- Union of India and another , Criminal Appeal No. 772/2017, the Hon’ble Supreme Court has held that the quantity of the mixture of a manufactured drug and a neutral substance would require to be considered for the purpose of determining whether the quantity is a commercial quantity or a small quantity for the purpose of the NDPS Act and only the component of the offending material cannot be considered in isolation. There is no dispute that codeine or codeine phosphate is a manufactured drug and therefore, any quantity in excess of 1000 ml would amount to commercial quantity as per the notification issued by the central government dated 19.10.2001, under the NDPS Act. 10. There is no dispute that codeine or codeine phosphate is a manufactured drug and therefore, any quantity in excess of 1000 ml would amount to commercial quantity as per the notification issued by the central government dated 19.10.2001, under the NDPS Act. 10. With regard to the contention regarding violation of Section 47 and 48 BNSS, as already stated hereinbefore nothing has been stated as to how the said provisions have been violated, and the perusal of the aforesaid notices available on record do not prima-facie indicate any deficiency, and hence the said contention also deserves to be rejected. 11. The petitioner, by filing an additional affidavit, has sought to bring out an additional ground by bringing on record a notification No. 826 (E) dated 14/11/1985 and S.O.40 (E) dated 29/01/1993 which is titled as Manufactured Narcotic Drugs (as contained in Government of India's Notification SO 826 (E) dated 14/11/1985, and S.O.40 (E) dated 29/01/1993). Entry 35 thereof is as follows: “Methyl morphine (commonly known as ‘Codeine’) and Ethyl morphine and their salts (including Dionine), all dilutions and preparations except those which are compounded with one or more other ingrediants and containing not more that 100 milligrams of the drug per dosage unit and with a concentration of not more than 2.5% in undivided preparations and which have been established in Therapeutic practice.” 12. It is further stated that as per Schedule H1 of the Drugs and Cosmetics Rules, 1945, The Phensigrip cough syrup is a prescribed medicine. It is further stated that as per the label of the alleged Phensigrip Cough Syrup, the composition is : Each 5ml. (one teaspoonful) contains: Codeine Phosphate I.P. 10mg i.e. 0.2% which is less than the permissible limit of 2.5% and therefore selling, keeping the drugs does not amount to an offence under NDPS Act. 13. In support of the aforesaid contention, to the effect that the seized Articles do not come within the ambit of the NDPS Act, the learned counsel for the petitioner has relied upon two judgments of the Hon’ble Delhi High Court. 14. The first of the said judgment is Iqbal Singh –Vs- State , dated 31/7/2020 in Bail Application No. 645/2020, by which a learned Single Judge of the Delhi High Court held that the cough syrup involved in that case, which contained 0.17% codeine, is a medicinal product and falls outside the ambit of the NDPS Act. 14. The first of the said judgment is Iqbal Singh –Vs- State , dated 31/7/2020 in Bail Application No. 645/2020, by which a learned Single Judge of the Delhi High Court held that the cough syrup involved in that case, which contained 0.17% codeine, is a medicinal product and falls outside the ambit of the NDPS Act. 15. The second judgment relied upon by learned counsel is that of a Division Bench of the Delhi High Court in Mohd Ahsan –Vs- Customs , pronounced on 16/09/2022 in Bail Application No. 1136/2021. The said judgment pertained to a reference made by another Single Bench of the same High Court, which bench of the same High Court which doubted the correctness of the decision in Iqbal Singh (Supra). And the following two questions were formulated while referring the case:- “a) whether in cases specifically related to manufactured drug with a miniscule percentage of a narcotic substance, the weight of the neutral substance ought to be ignored while determining the nature of the quantity seized i.e. small, commercial or in between? b) whether Note 4 of the S.O.1055 (E) dated 19 th October, 2001 published in the Gazette of India, Extra., Pt.II Sec3(ii) dated 19 th October 2001, as amended on 18.11.2009, should be held inapplicable to manufactured drug which contain a miniscule percentage of a narcotic drug? c) whether Note 4 of the S.O. 1055 (E) dated 19 th October, 2001 published in the Gazette of India,. Extra., Pt.II, Sec3 (ii) dated 19 th October 2001, as amended on 18.11.2009, should be made applicable to cough syrups containing miniscule percentage of Codeine since it has medicinal value and is also easily available?” 16. The background for such reference is that during the course of the hearing of the bail application, filed on behalf of the petitioner, in a Complaint Case No. 62/2020, dated 31.01.2018, filed by customs under Section 21(C) and 23(C) of the Narcotic Drugs and Psychotropic Substances Act 1985 (hereinafter “NDPS Act”), one of the points that arose for consideration was whether the recovery of 110 bottles of ‘Phensedyl New’ weighing 100 gms each and having a Codeine concentration of 0.17% per bottle would be considered as ‘commercial quantity’ under the NDPS Act. 17. 17. The facts, of the present case are also similar, involving the same composition/drug, and weight of the quantity contained in the bottles involved in both the cases, that is 100 ml per bottle, is also same. The above reference was answered by the Hon’ble Division Bench in the following manner:- “27. In March 2009 the Drugs Controller General (India) had issued a letter to the Associated Chambers of Commerce and Industry of India in response to a request for clarification of drug substance Cough Linctus containing codeine Phosphate stating that:— “In this connection this Directorate had already issued a circular letter vide our letter number X-11029/27/05-D dated 26/10/2005 to all State Drugs Controllers with a copy to various associations and a copy Narcotic Control Bureau New Delhi (copy enclosed). The above circular inter alia stated that these preparations (Cough Linctus containing Codeine Phosphate) contains among other drugs Codeine Phosphate 10 mg as one of the ingredients. By virtue of the fact that these preparations contain Codeine and its salts they do not fall under the provisions of NDPS Act and the Rules of 1985 but they fall under Schedule H of the Drugs and Cosmetic Rules and are governed by the said rules. Though stocking and sale of these drugs do not attract the provisions of NDPS Act and Rules 1985, however these formulations are prescriptions drugs and are to be dispensed on the prescriptions of a registered Medical Practioner only. Further you may be aware that under notification number S.O.826(E) dated 14th November, 1985 under the Narcotic Drugs and Psychotropic Substances Act and Rules 1985 certain preparations are exempted as manufactured drugs provided the preparations contain the Narcotic drug to the extent permitted. In respect of Codeine under entry no. 35 it is stated that Codeine and Ethyl 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 drug per dosage unit and with a concentration of not more than 2.5 per cent in undivided preparations and which have been established in therapeutic practice”. 37. It may be noted that in the judgment of Hon?ble Supreme Court in Md. 37. It may be noted that in the judgment of Hon?ble Supreme Court in Md. Sahabuddin (supra) it had been observed that the twin conditions in Entry 35, as aforesaid mentioned, would be fulfilled only if the recovered substance was “being used for therapeutic practice” and further observed in Para 11 of the said judgment; “11…Therapeutic practice as per dictionary meaning means “contributing to cure of disease”. In other words, the assessment of codeine content on dosage basis can only be made only when the cough syrup is definitely kept or transported which is exclusively meant for its usage for curing a disease and as an action of remedial agent”. 39. The aforesaid judgments, however, have not considered the scope of Section 9(1)(a)(va) of the NDPS Act which provides as under: “9. Power of Central Government to permit, control and regulate.- (1) Subject to the provisions of Section 8, the Central Government may, by rules- (a) permit and regulate— xxx (va) the manufacture, possession, transport, import inter-State, export inter- State, sale, purchase, consumption and use of essential narcotic drugs: Provided that where, in respect of an essential narcotic drug, the State Government has granted licence or permit under the provisions of Section 10 prior to the commencement of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2014, such licence or permit shall continue to be valid till the date of its expiry or for a period of twelve months from such commencement, whichever is earlier. xxx” 40. The aforesaid sub-clause (va) was introduced by the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2014 (No. 16 2014), which came into effect on 01.05.2014. The said amendment was introduced subsequent to the judgment of Hon’ble Supreme Court in Mohd. Sahabuddin’s case (supra). A bare reading of the said amended provision shows that the same was introduced in the NDPS Act authorizing the government to permit and regulate the manufacture, possession, transport, import interstate, export interstate, sale, purchase, consumption and use of the “essential narcotic drugs”. The term ‘essential narcotic drugs’ has not been defined in the NDPS Act. However, exercising powers under Section 9(1)(a)(va) of the NDPS Act, the Central Government vide notification dated 05.05.2015 (w.e.f. 05.05.2015) added Chapter –VA to The Narcotic Drugs and Psychotropic Substances Rules 1985 (hereinafter “NDPS Rules”). Rule 52A of the said Chapter providedas under: “52A. The term ‘essential narcotic drugs’ has not been defined in the NDPS Act. However, exercising powers under Section 9(1)(a)(va) of the NDPS Act, the Central Government vide notification dated 05.05.2015 (w.e.f. 05.05.2015) added Chapter –VA to The Narcotic Drugs and Psychotropic Substances Rules 1985 (hereinafter “NDPS Rules”). Rule 52A of the said Chapter providedas under: “52A. Possession of essential narcotic drug.—(1) No person shall possess any essential narcotic drug otherwise than in accordance with the provisions of these rules. (2) Any person may possess an essential narcotic drug in such quantity as has been at one time sold or dispensed for his use in accordance with the provisions of these rules. (3) A registered medical practitioner may possess essential narcotic drug, for use in his practice but not for sale or distribution, not more than the quantity mentioned in the Table below, namely— TABLE Sl. No. Name of the essential narcotic drug Quantity (1) (2) (3) 1 Morphine and its salts and all preparations containing more than 0.2 per cent of Morphine 500 Milligrammes 2 Methyl morphine (commonly known as ‘Codeine’) and Ethyl morphine and their salts (including Dionine), all dilutions and preparations except those which are compounded with one or more other ingredients and containing not more than 100 milligrammes of the drug per dosage unit and with a concentration of not more than 2.5% in undivided preparations and which have been established in therapeutic practice. 2000 Milligrammes 3 ........ 4 ......... 5 ....... 42. As mentioned earlier, the term ‘ essential narcotic drugs’ has not been defined under the NDPS Act but the table in Rule 52A, Sub Rule (3), at serial no. 2, under the title “Name of essential narcotic drug” gives a description of Methyl Morphine (commonly known as ‘Codeine’), which is an exact verbatim copy of Entry no. 35 in notification titled “Manufactured Narcotics Drug” (as contained in Government of India Notification No. S.O. 826 (E) dated 14.11.1985 and S.O. 40(E) dated 21.09.1993 and S.O. no. 1431 (E) dated 21.06.2011). A combined reading of Rule 52A of The NDPS Rules and Entry no. 35, in the aforementioned notification, would demonstrate that the exception carved out in Entry no. 35, of the aforesaid notifications, with respect to codeine, has been further qualified by way of its inclusion under the category of ‘ essential narcotic drug’ under Section 9(1)(a) (va) of the NDPS Act 1985. 35, in the aforementioned notification, would demonstrate that the exception carved out in Entry no. 35, of the aforesaid notifications, with respect to codeine, has been further qualified by way of its inclusion under the category of ‘ essential narcotic drug’ under Section 9(1)(a) (va) of the NDPS Act 1985. In our considered opinion, Rule 52A further regulates the manner of possession and other related activities enumerated therein, with respect to substances/preparations covered under the aforesaid Entry 35. 43. Section 21 of the NDPS Act provides for prosecution for contravention of any of the provision of the NDPS Act or any Rule made thereunder. Needless to say that Rule 52A clearly prohibits any person from possessing any ‘ essential narcotic drug’ otherwise than in accordance with the provisions of the rules made thereunder. The amended provision i.e. Section 9(1)(a)(va) of the NDPS Act and the rules made thereunder clearly and unequivocally declare that any substance covered under the description given in the Table to Rule 52A(3) would be considered as an ‘essential narcotic drug’, even if the said substance is otherwise covered under The Drugs and Cosmetic Act including cough syrup containing codeine phosphate. 44. The aforesaid interpretation is supported by a judgment rendered by the Hon’ble Supreme Court in Union of India and Anr. vs. Sanjeev V. Deshpande (2014) 13 SCC 1 , wherein it was held as follows: “25. In other words, DEALING IN narcotic drugs and psychotropic substances is permissible only when such DEALING is for medical purposes or scientific purposes. Further, the mere fact that the DEALING IN narcotic drugs and psychotropic substances is for a medical or scientific purpose does not by itself lift the embargo created under Section 8(c). Such a dealing must be in the manner and extent provided by the provisions of the Act, Rules or Orders made thereunder. Sections 9 and 10 enable the Central and the State Governments respectively to make rules permitting and regulating various aspects (contemplated under Section 8(c), of DEALING IN narcotic drugs and psychotropic substances. 26. The Act does not contemplate framing of rules for prohibiting the various activities of DEALING IN narcotic drugs and psychotropic substances. Such prohibition is already contained in Section 8(c). It only contemplates of the framing of Rules for permitting and regulating any activity of DEALING IN narcotic drugs or psychotropic substances. (emphasis supplied) 45. 26. The Act does not contemplate framing of rules for prohibiting the various activities of DEALING IN narcotic drugs and psychotropic substances. Such prohibition is already contained in Section 8(c). It only contemplates of the framing of Rules for permitting and regulating any activity of DEALING IN narcotic drugs or psychotropic substances. (emphasis supplied) 45. The aforesaid amended provisions of the NDPS Act and the Rules made thereunder were not brought to the notice of the learned Single Judge of this court in Iqbal Singh’s case (supra) as well as to the notice of the division bench of the Hon’ble Allahabad High Court in Vibhor Rana’s case (supra). 46. In view of the foregoing analysis of various provision of the NDPS Act, NDPS Rules, The Drugs and Cosmetics Act and the Drugs and Cosmetics Rules and the judgments referred to, we answer the reference in the following terms: Question - “(c) whether Note 4 of the S.O. 1055 (E) dated 19th October, 2001 published in the Gazette of India,. Extra., Pt.II, Sec3 (ii) dated 19th October 2001, as amended on 18.11.2009, should be made applicable to cough syrups containing miniscule percentage of Codeine since it has medicinal value and is also easily available?” Ans: If the contraband recovered in a particular case is covered by Rule 52A of the NDPS Rules made under Section 9(1)(a)(va) of the NDPS Act, then violation of the said Rules would be punishable under the NDPS Act. In that situation, Note 4 of the S.O. 1055 (E) dated 19th October, 2001 would be applicable to such substances including cough syrup. 47. As far as the questions (a) and (b) referred to us by the learned Single Judge are concerned, the same are squarely covered by the judgment of the Hon’ble Supreme Court in Hira Singh (supra) wherein the Hon’ble Supreme Court was disposing of a reference as well as a challenge to the validity of notification bearing no. S.O. 2941(E) dated 18.11.2009, adding ‘Note 4’ to the notification bearing no. S.O. 1055(E) dated 19.10.2001. The Hon’ble Supreme Court in Hira Singh (supra) has clearly held as under: “12.2. S.O. 2941(E) dated 18.11.2009, adding ‘Note 4’ to the notification bearing no. S.O. 1055(E) dated 19.10.2001. The Hon’ble Supreme Court in Hira Singh (supra) has clearly held as under: “12.2. In case of seizure of mixture of narcotic drugs or psychotropic substances with one or more neutral substance(s), the quantity of neutral substance(s) is not to be excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the “small or commercial quantity” of the narcotic drugs or psychotropic substances.” 48. In view of the aforesaid decision, the questions (a) and (b) referred to us are answered as follows: Question - “(a) whether in cases specifically related to manufactured drug with a miniscule percentage of a narcotic substance, the weight of the neutral substance ought to be ignored while determining the nature of the quantity seized i.e. small, commercial or in between?” Ans: If the contraband seized falls within the provisions of NDPS Act, the weight of the neutral substance would not be ignored while determining the nature of the quantity seized, whether small quantity, commercial quantity or in between. Question - “(b) whether Note 4 of the S.O. 1055 (E) dated 19th October, 2001 published in the Gazette of India, Extra., Pt.II, Sec3 (ii) dated 19th October 2001, as amended on 18.11.2009, should be held inapplicable to manufactured drug which contain a miniscule percentage of a narcotic drug?” Ans: If the alleged contraband seized falls within the definition of ‘manufactured drug’ under Section 2(xi) of the NDPS Act, then the entire notification including the aforesaid ‘Note 4’ will be applicable.”” 18. In the instant case, it is seen that as per FSL report, the seized contraband contained codeine, which finds mention in serial number 2 of the table appended under Rule 52A of the NDPS rules, and therefore violation of the said rules would be punishable under the NDPS Act. And therefore, Note 4th of the S.O. 1055/E dated 19 October 2001 would be applicable to the substance, that is, cough syrup seized in the present case. Further, the weight of the neutral substance also cannot be ignored while determining the nature of the quantity seized, and therefore, the same amounts to the contraband seized in the present case amounts to commercial quantity, as already held earlier. Further, the weight of the neutral substance also cannot be ignored while determining the nature of the quantity seized, and therefore, the same amounts to the contraband seized in the present case amounts to commercial quantity, as already held earlier. There is also no dispute that codeine is a manufactured drug under Section 2(11) of the NDPS Act and therefore the aforesaid Note 4 will be applicable, which is as follows:- “4. The quantities shown in column 5 and column 6 of the Table relating to the respective drugs shown in column 2 shall apply to the entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers and salts of these drugs, including salts of esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content”. 19. In view of the above, the very decision relied upon by the learned counsel for the petitioner goes against the petitioners. 20. In view of the above discussion, I find no force in the contention of learned counsel for the petitioner. Since the seized contraband which was recovered from the possession of the petitioners is of commercial quantity, the provision of Section 37 of the NDPS Act is squarely attracted in the facts of the present case as prima facie discernible from the documents on record. Therefore, there is no reason to arrive at a view that the petitioners may not be guilty of the alleged offense of possession of commercial quantity of contraband items. 21. The bail prayer for bail stands rejected at this stage, and the bail petition stands dismissed.