IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.22264 of 2026 Arising Out of PS. Case No.-212 Year-2025 Thana- R S P.S. District- Araria ====================================================== Md. Ashiq @ Aashik @ Md. Ashique, S/O Ghayas Uddin @ Md. Ghyas, Resident of Sisauna Gaiyari, Ward no.- 5, P.O- Gaiyari, P.S and District- Araria ... ... Petitioner/s Versus The State of Bihar ... ... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr.Ranjeet Choubey, Advocate For the Opposite Party/s : Mr.Rabindra Kumar, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY ORAL ORDER 2 17-04-2026 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 Sections 21, 22 and 23 of the NDPS Act and under Section 111(1) of the BNS. 3. The case of the prosecution, in short, is that from the possession of the petitioner along with two co-accused Shafi Ahmad and Md. Saheb, altogether 103 liters cough syrup containing codeine was recovered. 4. Learned counsel for the petitioner has submitted that nothing has been recovered from the possession of this petitioner. From perusal of the seizure list it will transpire that the witnesses of the seizure list are police personnel and they Patna High Court CR. MISC. No.22264 of 2026(2) dt.17-04-2026 2/4 have not complied Section 105 of the BNSS while making seizure. It has further been submitted that though police has stated that cough syrup containing codeine was recovered but has not mentioned brand name. Without brand name it cannot be ascertained as to what was the concentration of codeine in the said cough syrup. Learned counsel for the petitioner has submitted that the petitioner is having no criminal antecedent. It has also been submitted that similarly situated co-accused persons Md. Shafi Ahmad and Md. Shaheb have been granted bail by this Court vide Cr. Misc. Nos. 4819 of 2026 and 14466 of 2026 respectively. The case of this petitioner stands on similar footing. Moreover, he is in judicial custody since 30.11.2025. 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 Patna High Court CR. MISC. No.22264 of 2026(2) dt.17-04-2026 3/4 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. 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. 7. 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. 8. 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 R.S. P.S. Case No. 212 of 2025 on furnishing bail bond of Rs.10,000/- (ten thousand) with two Patna High Court CR. MISC. No.22264 of 2026(2) dt.17-04-2026 4/4 sureties of the like amount each to the satisfaction of learned Special Judge, NDPS Act, Araria. 9. 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