IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.28274 of 2026 Arising Out of PS. Case No.-58 Year-2026 Thana- SONBERSA District- Sitamarhi ====================================================== Deosharan Mahto @ Deo Sharan Kumar Mahto S/o Late Vishwanath Mahto @ Late Vishw Nath Mahto Resident of village - Sonbarsa, P.S - Sonbarsa, District - Sitamarhi ... ... Petitioner/s Versus The State of Bihar ... ... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Ayush Kumar, Advocate For the Opposite Party/s : Mr. Satyendra Prasad, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY ORAL ORDER 2 04-05-2026 Heard learned counsel for the petitioner and learned APP for the State. 2. The petitioner has prayed for regular bail in a case registered for the offence punishable under section 21 (C) of the N.D.P.S. Act. 3. The case of the prosecution is that seeing the police, the petitioner has thrown a bag and from that bag, altogether, 15 bottles of RTX-SCEN cough syrup containing codeine each of 100 ml and 13 bottles of WINGS ONEREX cough syrup containing codeine each of 100 ml were recovered. It is further alleged that 120 pieces of Spasmo Proxyvon plus tablets were also recovered. 4. Learned counsel for the petitioner submits that the petitioner is innocent and has committed no offence. He has Patna High Court CR. MISC. No.28274 of 2026(2) dt.04-05-2026 2/4 falsely been implicated in this case. Learned counsel for the petitioner has submitted that while making seizure, Section 105 of B.N.S.S. has not been complied and the seizure list witnesses are police personnel. Nothing has been recovered from his conscious possession. It has also been submitted that though the quantum of the contraband i.e., Spasmo Proxyvon Plus tablets which has been recovered is more than small quantity but is much less than commercial quantity. Moreover, he is languishing in judicial custody since 28.02.2026. 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 Patna High Court CR. MISC. No.28274 of 2026(2) dt.04-05-2026 3/4 therapeutic practice. 6. In this case, RTX-SCEN cough syrup and WINGS ONEREX cough syrup containing codeine phosphate have been recovered and the concentration of the codeine in these drugs 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 released on bail in connection with Patna High Court CR. MISC. No.28274 of 2026(2) dt.04-05-2026 4/4 Sonbarsa P.S. Case No. 58 of 2026 on furnishing bail bond of Rs.10,000/- (ten thousand) with two sureties of the like amount each to the satisfaction of learned Court of Special Judge, Sitamarhi. 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. Shubham/- (Ashok Kumar Pandey, J) U T