IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.24996 of 2026 Arising Out of PS. Case No.-250 Year-2025 Thana- GAIGHAT District- Muzaffarpur ====================================================== Rakesh Rai, S/o Jainandan Rai, R/o Villaage- Sakri Balua, P.S.- Turki, Distt.- Muzaffarpur ... ... Petitioner/s Versus The State of Bihar ... ... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Ranjeet Kumar Singh, Advocate For the Opposite Party/s : Mr. Ganesh Prasad Singh, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY ORAL ORDER 2 01-05-2026 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 NDPS Act. 3. The case of the prosecution, in short, is that altogether 760 liters of Eskuf Cough Syrup containing codeine was recovered from a Pick-up van. 4. Learned counsel appearing on behalf of the petitioner has submitted that petitioner is innocent and has committed no offence. He has been falsely implicated in this case. He is neither the driver nor the owner of the said vehicle. Nothing has been recovered from his possession. Learned counsel for the petitioner has submitted that from perusal of the Patna High Court CR. MISC. No.24996 of 2026(2) dt.01-05-2026 2/4 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 the seizure. It has further been submitted that similarly situated co-accused Bhola Rai has been granted bail by this Court vide Cr. Misc. No. 11557 of 2026. Moreover, he is languishing in judicial custody since 10.10.2025. 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. 6. In this case, Eskuf cough Syrup has been recovered been recovered from a Pick-up Van and the concentration of the Patna High Court CR. MISC. No.24996 of 2026(2) dt.01-05-2026 3/4 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 petitioner is having criminal antecedent of one case. It has further been 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 petitioners 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. Considering the aforesaid 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 NDPS Case No. 174 of 2025 arising out of Gaighat P.S. Case No. 250 of 2025 on furnishing bail bond of Rs.10,000/- (ten thousand) with two sureties of the like amount each to the satisfaction of learned Special Judge, NDPS Court Patna High Court CR. MISC. No.24996 of 2026(2) dt.01-05-2026 4/4 No.-II, Muzaffarpur. 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