Page No.# 1/17 GAHC010042752026 2026:GAU-AS:13269 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./598/2026 MANIK SINGHA S/O LT BASANTA KR SINGHA, R/O HOUSE NO 06, JAYMATI NAGAR, ADABARI, PS JALUKBARI, DIST KAMRUP METRO, ASSAM, PIN 781012 VERSUS THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM Advocate for the Petitioner : MR D MEDHI, S YESMIN,MR. S SARKAR,MR. SANU HUSSAIN Advocate for the Respondent : PP, ASSAM, B E F O R E HON’BLE MR. JUSTICE SANJEEV KUMAR SHARMA ORDER 11.09.2026 Heard Mr. D Medhi, learned counsel for the petitioner. Also heard Mr. P M Goswami, learned Additional Public Prosecutor for the State. 2. This is an application filed under Section 483 of the BNSS, 2023 for granting bail to the accused/petitioner, namely, Manik Singha, who was arrested Page No.# 2/17 on 14.02.2026, in connection with Fatashil Ambari P.S. Case No. 29/2026 under Section 20(b)(II)(B)/21(b)/22(c)/29 of the NDPS Act. 3. The prosecution story in short is that on 13.02.2026 the Officer-in-Charge of Fatashil Ambari Police Station received information at about 8.46 A.M. that some persons were engaged in selling illegal NDPS substances at Prabhat Boro Path, Dhirenpara under Fatashil Ambari Police Station and the I/O being empowered and being equipped with the necessary staff proceeded to the place of occurrence in a Government vehicle bearing Registration No. AS-30-8837 and searched House No. 60, Prabhat Boro Path, in the presence of two independent witnesses and the accused, Rohit Uddin Laskar, the items mentioned in the FIR were recovered from his house. It was also alleged that during investigation of the case accused, Rohit Uddin Laskar disclosed the source of the supply and also led the police team to Jalukbari where another accused Rantu Ali was apprehended and the apprehended accused disclosed that he had purchased the codeine Cough Syrup from one Pharmacy under the name and style of “Akula Pharmacy”, the basis of the disclosure statement made by the aforesaid Rantu Ali, the police arrived at the wholesale pharmacy i.e., Akula Pharma, belonging to the present petitioner, and recovered 860 bottles of Triprolidine Hydrochloride Syrup, with the brand names Cuff Linctus and Novo Gold, each Page No.# 3/17 bottle containing 100 ml of liquid. 4. As per the prosecution, the said contraband was duly seized in the presence of independent witnesses as the petitioner could not produce any valid documents to show the valid possession and storage of the aforesaid huge quantity of codeine phosphate. Further, the petitioner was also taken into custody and since then he has been behind bars about six months. The case has already been charge-sheeted. 5. The recovery of the contraband as aforesaid from the pharmacy of the petitioner is not disputed. However, it is the contention of the learned counsel for the petitioner that the contraband so seized does not attract the provisions of the NDPS Act. 6. The learned counsel has referred to 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 Page No.# 4/17 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." 7. 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. 8. 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 judgments of the different High Courts. 9. 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. To the same effect is the decision of a Division Bench of the Allahabad High Court in Vibhor Rana vs. Union of India, Criminal Misc. Writ Petition No. 8403 of 2021. Page No.# 5/17 10. However, a 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, which also considered Vibhor Rana (supra) cited by the learned counsel for the petitioner. The said judgment pertained to a reference made by another Single Bench of the same High Court, which bench 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?" 11. The background for such reference is that during the course of the hearing of the bail application, filed on behalf of the petitioner, in Complaint Case No. Page No.# 6/17 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, 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. 12. 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 Page No.# 7/17 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. 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 Page No.# 8/17 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 Page No.# 9/17 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. 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) Page No.# 10/17 1. Morphine and its salts and all 500 Milligrammes preparations containing more than 0.2 per cent of Morphine 2. Methyl morphine (commonly known 2000 Milligrammes 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. 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 Page No.# 11/17 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). Page No.# 12/17 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. 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 Page No.# 13/17 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. 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 Page No.# 14/17 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."" 13. 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 4 of the S.O. 1055/E dated 19th 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 Page No.# 15/17 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". 14. In view of the above, the very decision i.e. Mohd Ahsan (supra) relied upon by the learned counsel for the petitioner goes against the petitioners. 15. It is the submission of the learned counsel for the petitioner that the petitioner has the requisite licence to run the business of wholesale pharmacy and the said licence permits him to store Schedule H drugs, and the seized contraband also belongs to the said category, which is not in dispute. However, a perusal of the Case Diary would show that the petitioner failed to produce any documents to establish that the said quantity of cough syrup was procured by him in the regular course of business through legal means and kept for the purpose of supply to authorised retailers. That much also appears from the Page No.# 16/17 statements of the independent witnesses as well. Furthermore, the co-accused, on the basis of whose statement the discovery was made, was not a person authorised to obtain such cough syrup without the prescription of a registered medical practitioner or in the course of any legitimate business. It has been submitted that the brand name of the cough syrup that was recovered from one of the co-accused is different from the brand name of the same composition that was recovered from the warehouse of the petitioner. In the considered opinion of this Court, the difference in the brand names would hardly make any difference in view of the fact that contraband of identical nature was recovered from the said co-accused, as also the fact that the statement of the co-accused led to the discovery of the contraband. 16. In view of the above discussion, I find no force in the contention of the learned counsel for the petitioner. Since the seized contraband which was recovered from the possession of the petitioner 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 petitioner may not be guilty of the alleged offence of possessing a commercial quantity of contraband. Page No.# 17/17 17. The prayer for bail stands rejected at this stage, and the bail petition stands dismissed. 18. Send back the TCR. JUDGE Comparing Assistant