IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.29234 of 2026 Arising Out of PS. Case No.-16 Year-2026 Thana- Chakia District- Begusarai ====================================================== 1. Dilip Kumar, Son of Sikander Yadav @ Sakinder Yadav, Resident of Village -Shahpur, PS -Sonvarsha Raj, District -Saharasa, Bihar 2. Abhishek Kumar Son of Pawan Kumar @ Pawan Kumar Yadav, Resident of Village -Shahpur, PS -Sonvarsha Raj, District -Saharasa, Bihar ... ... Petitioner/s Versus The State of Bihar ... ... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr.Aditya Raj, Advocate For the Opposite Party/s : Mr.Shailendra Kumar, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY ORAL ORDER 2 05-05-2026 Heard learned counsel for the petitioners and learned APP for the State. 2. The petitioners have prayed for bail in connection with Chakia P.S. Case No. 16 of 2026 registered for the offence punishable under Section 21(c) of the N.D.P.S. Act. 3. The case of the prosecution, in short, is that from a car, 752 bottles (100 ml each) of Wiscorex Cough Syrup containing codeine were recovered. 4. Learned counsel appearing on behalf of the petitioners has submitted that petitioners are innocent and have committed no offence. They have been falsely implicated in this case. The car does not belong to the petitioners. They were Patna High Court CR. MISC. No.29234 of 2026(2) dt.05-05-2026 2/4 merely passengers in the car. Nothing has been recovered from their possession. Learned counsel for the petitioners has submitted that from perusal of the seizure list, it will transpire that the seizure witnesses are not independent witness rather they are police personnel. Police has also not followed the provision of Section 105 of B.N.S.S. while making seizure. Petitioner no.1 is having no criminal antecedent and petitioner no. 2 is having one criminal antecedent in which he is on bail. They are languishing in judicial custody since 02.03.2026. 5. Learned counsel for the petitioner has 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. Patna High Court CR. MISC. No.29234 of 2026(2) dt.05-05-2026 3/4 6. In this case, Wiscorex Cough Syrup has been recovered from a car and 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 form the possession of this 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 petitioners on bail. The above named petitioners are directed to be enlarged on bail on furnishing bail bond of Rs. 10,000/- (Rs. ten thousand only) each with two Patna High Court CR. MISC. No.29234 of 2026(2) dt.05-05-2026 4/4 sureties of the like amount each to the satisfaction of the learned Principal Sessions Judge (NDPS), Begusarai in connection with Chakia P.S. Case No. 16 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. lata/- (Ashok Kumar Pandey, J) U T