Patna High Court
Nilendra Kumar Karan @ Nilendra vs The State Of Bihar on 27 August, 2025
Author: Jitendra Kumar
Bench: Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.54100 of 2025
Arising Out of PS. Case No.-64 Year-2025 Thana- HARLAKHI District- Madhubani
======================================================
Nilendra Kumar Karan @ Nilendra S/o Rajbanshi Lal Karan, R/o Village-
Dudhali Ward No.10, PS- Sindhuli, District- Sindhuli (Janakpur, Nepal)
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Jitendra Kumar Bharti, Advocate
Mr. Pankaj Kumar Jha, Advocate
For the State : Mr. Upendra Kumar, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE JITENDRA KUMAR
CAV JUDGMENT
Date : 27-08-2025
Introduction
The present Criminal Miscellaneous petition has been
filed under Sections 483 and 484 of the B.N.S.S., 2023 for
regular bail in connection with Harlakhi P.S. Case No. 64 of
2025, corresponding to G.R. No. 24 of 2025, dated 19.03.2025,
registered for the offences punishable under Sections 20 and 22
of the N.D.P.S., Act, pending in the Court of learned Principal
Sessions Judge-cum-Special Court, N.D.P.S. Act, Madhubani.
Prosecution Case
2. The prosecution case, as emerging from the written
report of the SSB personnel, is that the informant along with
five S.S.B, personnel were on check-post duty. They got
information that some intoxicating medicine is being carried by
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a four wheeler of silver colour. Subsequently, they intercepted
one such vehicle going from India to Nepal and in the presence
of the driver and one person sitting in the car, the vehicle was
searched, and hence, the intoxicating medicine was recovered
from below the seat of the car, the medicine comprising forty
bottles of 100 ml each containing codeine phosphate &
Triprolidine Hydrochloride cough syrup, oxerex, bearing B. NO
ONTS-1663. The persons who were present in the car were the
Petitioner and co-accused, Giban Patal. The vehicle Tata Indigo
Manza (Four wheeler)-01 bearing Reg No. BaE 2295, Eng. No.
101A20000557474, CH NO-MAT613421FPA04429, and the
recovered one mobile phone OPPO RAENO-8 5G along with
two sim cards bearing IMEI-86539206416654, IMEI-2-
865392064126647 were also seized. The two persons, including
the Petitioner and the co-accused, Giban Patal, who were found
in the car were also arrested and FIR was lodged against them.
Rejection of Anticipatory Bail Petition of the petitioner by
learned Special Court NDPS, Madhubani
3. Prior to moving this Court, the petitioner had
preferred anticipatory bail petition before the Special Court,
NDPS, Madhubani. However, his anticipatory bail application
was rejected by learned Special Court, holding that 40 bottles of
cough syrup have been recovered from the vehicle of the
Patna High Court CR. MISC. No.54100 of 2025 dt.27-08-2025
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petitioner and the amount of the contraband constitutes
commercial quantity in the light of Hira Singh v. Union of
India, as reported in (2020) 20 SCC 272. It has been also found
by learned Special Court that in the case diary, the witnesses
who have been examined, have supported the prosecution case
against the petitioner and hence, in the light of Section 37 of the
NDPS Act, his anticipatory bail petition was rejected.
4. I heard learned counsel for the petitioner and
learned APP for the State.
Submission on behalf of the Petitioner
5. Learned counsel for the Petitioner submits that the
Petitioner is innocent and has falsely been implicated in this
case. He further submits that the prosecution against the
Petitioner is vitiated in view of the non-compliance of the
mandatory provisions of Section 42 of the N.D.P.S., Act at the
time of making search and seizure.
6. He further submits that the alleged contraband
recovered from the Petitioner is not a narcotic drug and
psychotropic substance punishable under the N.D.P.S., Act. It is
cough syrup containing less than 2.5 per cent codeine of the
total preparation. Hence, it is an essential drug, not punishable
under the N.D.P.S., Act. At the most, the Petitioner may be
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prosecuted under the Drugs and Cosmetics Act, 1940. In this
context, he refers to and relies upon Vibhor Rana v. Union of
India, 2021 SCC OnLine All 908.
7. In Vibhor Rana case (supra), Allahabad High
Court was seized with the writ petition, involving question
whether "New Fancy Deal Linctus Cough Syrup" is a narcotic
drug and it comes within the purview of N.D.P.S., Act. Here,
Allahabad High Court has held as follows:
"23. Thus, as per the aforesaid Notification, if any
drug contains not more than 100 milligrams of Methyl
Morphine, which is commonly known as Codeine, per
dosage unit, and in that drug Codeine is compounded with
one or more other ingredients and if in the drug the
concentration of Codeine is not more than 2.5% in
undivided preparations and the drug has been established
in Therapeutic practice, will not be a "Manufactured
Drug" and, therefore, it will not be a "Narcotic Drug".
24. The prohibition contained in Section 8 of the Act
is applicable to "Narcotic Drugs" and since Phensedyl
New Cough Linctus contains Codeine compounded with
one other ingredient, namely Chlorpheniramine Maleate
and since Phensedyl New Cough Linctus contains merely
10 milligrams per dosage unit of 5 ml, which is not more
than 100 milligrams of the drug per dosage unit in
undivided preparations and the concentration of Codeine
in Phensedyl New Cough Linctus is merely 0.2%, which
obviously is not more than 2.5% and which has been
established in Therapeutic practice, it is not a
"Manufactured Drug" and, therefore, it is not a "Narcotic
Drug", the prohibition contained in Section 8 of the Act
does not apply to it.
25. Phensedyl New Cough Linctus contains Codeine
which is mentioned at Serial Number 20 in Schedule H1
appended to the Drugs Rules, 1945 and a note appended to
Schedule H1 provides that "Preparations containing the
above drug substances and their sales excluding those
intended for topical or external use (except opthalmic and
ear or nose preparations) containing above substances are
Patna High Court CR. MISC. No.54100 of 2025 dt.27-08-2025
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also covered by this Schedule". Therefore, Phensedyl New
Cough Linctus is a drug covered by the Drugs and
Cosmetics Act, 1940.
26. To clarify this position, on 26.10.2005 the Drug
Controller General of India had written letter to all the
State Drugs Controllers stating as follows:--
"As you are aware there are number of Cough
preparations like Corex of M/s Pfizer Ltd. Mumbai,
Phensedyl of M/s. Nicholas Piramal India Limited,
Mumbai, Codokuff of M/S. German Remedies, Codeine
Linctus of M/s Zydus Alidac etc. moving in inter state
commerce. These preparations contain among other drugs
Codeine Phosphate 10 mg as one of the ingredients. By
virtue of the fact that these preparations contain Codeine
and it salts they do not fall under the provisions of NDPS
Act and Rules of 1985 but they fall under Schedule H of
the Drugs and Cosmetics Rules and are 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 drug and are to be
dispensed on the prescription of a registered Medical
Practitioner only. Further you may be already aware that
under notification number S.O. 826(E) dated 14 th Nov.
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 milligrams 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."
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
Patna High Court CR. MISC. No.54100 of 2025 dt.27-08-2025
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 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."
8. He also submits that if the quantity of the neutral
substance of the cough syrup is excluded, the quantity of
codeine in the total seized cough syrup is much less than the
commercial quantity, and hence, the rigors or Section 37 of the
N.D.P.S., Act would not apply and the Petitioner would be
entitled to get bail.
9. Learned counsel for the Petitioner also submits that
the Petitioner has no criminal antecedents and he has been in
custody since 20.03.2025 without any fault.
Patna High Court CR. MISC. No.54100 of 2025 dt.27-08-2025
Submission on behalf of the State
10. However, learned APP for the State submits that
40 bottles of cough syrup of 100 ml each, containing codeine
has been recovered from the Petitioner, and hence, narcotic
drugs of commercial quantity is seized from the vehicle in
which the Petitioner and the accused were sitting, and hence,
rigors of Section 37 of the N.D.P.S., Act comes into play and
the Petitioner is not entitled to get regular bail, in view of the
material in support of the prosecution case.
11. He further submits that even if codeine constitutes
less than 2.5 per cent of the total preparation of cough syrup,
it comes in the category of manufactured narcotic drugs,
though, it has been categorized as essential drugs. But even
possession of such essential drug is regulated by the N.D.P.S.,
Act and in violation of such regulations, the Petitioner is liable
to be prosecuted under the N.D.P.S., Act because it is not the
case of the Petitioner that the Petitioner has permit or license
to possess such cough syrup in the quantity as recovered from
him. In this regard, he refers to and relies upon the following
judicial precedents:
(i) Mohd. Ahsan Vs. Customs,
2022 SCC OnLine Del 2910
(ii) Azhar Javad Rather Vs. UT of J and K,
AIR OnLine 2023 J & K 270
Patna High Court CR. MISC. No.54100 of 2025 dt.27-08-2025
12. In Mohd. Ahsan case (supra), there was recovery
of 110 bottles of cough syrup "New Fancy Drug Linctus
Cough Syrup" containing a minuscule quantity of codeine i.e
0.17 per cent in each bottles. Here, Delhi High Court referred
to all relevant statutory provisions of the N.D.P.S., Act and the
relevant judicial precedents including the Vibhor Rana case
(supra) and held that even in case of cough syrup, the N.D.P.S.
Act and the Rules as made thereunder are applicable. It has
further held that in the Vibhor Rana Case (supra), Section 9
of the N.D.P.S. Act, providing for power to the Central
Government to control and regulate and consequent Central
Government Notifications were not considered.
13. Jammu and Kashmir High Court has also taken
similar view in Azhar Javad Rather case (supra).
Legal Provisions
14. Before I consider the rival submissions of the
parties, it is imperative to discuss the relevant statutory
provisions and binding judicial precedents.
15. The NDPS Act and the Rules made thereunder are
in addition to and not in derogation of the Drugs and Cosmetics
Act, 1940 of the Rules made thereunder as has been clearly
provided under Section 80 of NDPS Act. Hence, the NDPS Act
Patna High Court CR. MISC. No.54100 of 2025 dt.27-08-2025
should not be read in exclusion of the Drugs and Cosmetics Act,
1940. Section 80 of the N.D.P.S., Act reads as follows:
"80. Application of the Drugs and
Cosmetics Act, 1940 not barred.--The provisions of
this Act or the rules made thereunder shall be in
addition to, and not in derogation of, the Drugs and
Cosmetics Act, 1940 (23 of 1940) or the rules made
thereunder."
16. The Drugs and Cosmetics Act, 1940 deals with the
drugs which are intended to be used for therapeutic or medical
uses. The NDPS Act, on the other hand, is a special law and it
intends to curb and penalize the use of narcotic drugs which are
used for intoxication or for getting stimulant effect.
17. The Drugs and Cosmetics Act is intended to
prevent sub-standard drugs and to maintain high standards of
medical treatment and curtail the menace of adulteration of
drugs and also of the production, manufacture, distribution and
sale of spurious and sub-standard drugs. However, the NDPS
Act, on the other hand, intends to control and regulate the
operation relating to Narcotic Drugs and Psychotropic
Substances. In this context, one may refer to the following
judicial precedents:-
(i) Directorate of Revenue Intelligence vs. Raj
Kumar Arora, 2025 SCC OnLine SC 819
(ii) State of Punjab vs. Rakesh Kumar,
(2019) 2 SCC 466
Patna High Court CR. MISC. No.54100 of 2025 dt.27-08-2025
(iii) Union of India vs. Sanjeev V. Deshpande,
(2014) 13 SCC 1
18. Now coming to the statutory provisions of the
NDPS Act, one may find that Section 8 prohibits certain
operations. Section 8 reads as follows:-
"8. Prohibition of certain operations.- No person
shall-
(a) cultivate any coca plant or gather any portion of
coca plant; or
(b) cultivate the opium poppy or any cannabis plant;
or
(c) produce, manufacture, possess, sell, purchase,
transport, warehouse, use, consume, import inter-State,
export inter-State, import into India, export from India or
tranship any narcotic drug or psychotropic substance,
except for medical or scientific purposes and in the
manner and to the extent provided by the provisions of
this Act or the rules or orders made thereunder and in a
case where any such provision, imposes any requirement
by way of licence, permit or authorisation also in
accordance with the terms and conditions of such licence,
permit or authorisation:
Provided that, and subject to the other provisions of
this Act and the rules made thereunder, the prohibition
against the cultivation of the cannabis plant for the
production of ganja or the production, possession, use,
consumption, purchase, sale, transport, warehousing,
import inter-State and export inter-State of ganja for any
purpose other than medical and scientific purpose shall
take effect only from the date which the Central
Government may, by notification in the Official Gazette,
specify in this behalf:
Provided further that nothing in this section shall
apply to the export of poppy straw for decorative
purposes."
(Emphasis supplied)
19. However, Section 9 of the NDPS Act gives power
to the Central Government to permit, control and regulate
certain operations. It reads as follows:-
Patna High Court CR. MISC. No.54100 of 2025 dt.27-08-2025
"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--
.....................................................................
..............................................................
(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.
(vi) the manufacture, possession, transport import
inter-State, export inter-State, sale, purchase, consumption
or use of psychotropic substances;
.....................................................................
..............................................................
(ha) prescribe the forms and conditions of
licences or permits for the manufacture, possession,
transport, import inter-State, export inter-State, sale,
purchase, consumption or use of essential narcotic drugs,
the authorities by which such licence or permit may be
granted and the fees that may be charged therefore;
(i) prescribe the forms and conditions of licences or
permits for the manufacture, possession, transport, import
inter-State, export inter-State, sale, purchase, consumption
or use of psychotropic substances, the authorities by
which such licences or permits may be granted and the
fees that may be charged therefore;
.......................................................................
......................................................................"
(Emphasis Supplied)
20. Section 21 of the NDPS Act provides for
punishment for contravention in relation to manufactured drugs
and preparations. It reads as follows:-
Patna High Court CR. MISC. No.54100 of 2025 dt.27-08-2025
"21. Punishment for contravention in relation to
manufactured drugs and preparations.- Whoever, in
contravention of any provision of this Act or any rule or
order made or condition of licence granted thereunder,
manufactures, possesses, sells, purchases, transports,
imports inter-State, exports inter-State or uses any
manufactured drug or any preparation containing any
manufactured drug shall be punishable,--
(a) where the contravention involves small quantity,
with rigorous imprisonment for a term which may extend
to one year, or with fine which may extend to ten thousand
rupees, or with both;
(b) where the contravention involves quantity, lesser
than commercial quantity but greater than small quantity,
with rigorous imprisonment for a term which may extend
to ten years and with fine which may extend to one lakh
rupees;
(c) where the contravention involves commercial
quantity, with rigorous imprisonment for a term which
shall not be less than ten years but which may extend to
twenty years and shall also be liable to fine which shall
not be less than one lakh rupees but which may extend to
two lakh rupees:
Provided that the court may, for reasons to be
recorded in the judgment, impose a fine exceeding two
lakh rupees."
(Emphasis Supplied)
21. Section 2 (xi) of the NDPS Act defines the word
"manufactured drug". It reads as follows:-
"2 (xi). "manufactured drug" means--
(a) all coca derivatives, medicinal cannabis,
opium derivatives and poppy straw concentrate;
(b) any other narcotic substance or preparation
which the Central Government may, having regard to the
available information as to its nature or to a decision, if
any, under any International Convention, by notification in
the Official Gazette, declare to be a manufactured drug;
but does not include any narcotic substance or
preparation which the Central Government may, having
regard to the available information as to its nature or to a
decision, if any, under any International Convention, by
Patna High Court CR. MISC. No.54100 of 2025 dt.27-08-2025
notification in the Official Gazette, declare not to be a
manufactured drug;"
(Emphasis Supplied)
22. Section 22 of the NDPS Act provides for
punishment for contravention in relation to psychotropic
substances. It reads as follows:-
"22. Punishment for contravention in
relation to psychotropic substances.--Whoever, in
contravention of any provision of this Act or any rule or
order made or condition of licence granted thereunder,
manufactures, possesses, sells, purchases, transports,
imports inter-State, exports inter-State or uses any
psychotropic substance shall be punishable,--
(a) where the contravention involves small
quantity, with rigorous imprisonment for a term which
may extend to 5[one year], or with fine which may extend
to ten thousand rupees, or with both;
(b) where the contravention involves quantity
lesser than commercial quantity but greater than small
quantity, with rigorous imprisonment for a term which
may extend to ten years, and with fine which may extend
to one lakh rupees;
(c) where the contravention involves
commercial quantity, with rigorous imprisonment for a
term which shall not be less than ten years but which may
extend to twenty years, and shall also be liable to fine
which shall not be less than one lakh rupees but which
may extend to two lakh rupees:
Provided that the court may, for reasons to be
recorded in the judgment, impose a fine exceeding two
lakh rupees:"
(Emphasis Supplied)
23. Section 2 (xxiii) of the NDPS Act defines the
word "psychotropic substance". It reads as follows:-
"2 (xxiii). "psychotropic substance" means
any substance, natural or synthetic, or any natural material
or any salt or preparation of such substance or material
included in the list of psychotropic substances specified in
the Schedule;"
(Emphasis Supplied)
Patna High Court CR. MISC. No.54100 of 2025 dt.27-08-2025
24. In the Schedule to the NDPS Act, 1985, there are
111 entries. Up to entry No. 110, specific names have been
provided and as per entry No. 111, salts and preparations of
above has been also categorized as psychotropic substances.
25. The word "Preparation" has been defined by
Section 2 (xx) of the NDPS Act. It reads as follows:-
"2 (xx). "preparation", in relation to a
narcotic drug or psychotropic substance, means any one or
more such drugs or substances in dosage form or any
solution or mixture, in whatever physical state, containing
one or more such drugs or substances;"
26. In exercise of the powers conferred by Section 9
read with Section 76 of NDPS Act, Central Government has
made NDPS Rules, 1985. In the year, 2015, Chapter VA has
been added to the Rules dealing with possession, transport,
import inter-State, export inter-State, sale, purchase,
consumption and use of essential narcotic drug.
27. Section 2 (viiia) defines essential narcotic drug,
as per which, essential narcotic drug means a narcotic drug
which has been notified by Central Government for medical and
scientific use. In the table provided under the Rule 52A(3) of the
NDPS Rules, 1985, the names of essential narcotic drugs have
been given and there are five entries in this table. Methyl
morphine (commonly known as 'Codeine') and Ethyl morphine
and their salts (including Dionine), all dilutions and preparations
Patna High Court CR. MISC. No.54100 of 2025 dt.27-08-2025
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, has been provided in entry
No. 2 of the Table.
28. Sub-Rule 1 of Rule 52A provides that no person
shall possess any essential narcotic drug otherwise than in
accordance with the provisions of these Rules. As per Sub-Rule
2 of Rule 52A, even quantity of such essential narcotic drug in
possession must be in permitted limit. The Controller of drugs
or his authorized officer has been given power to give such
licence/permit for medical practitioner, medical institutions,
manufacturer, licenced dealer or a licenced chemist. Other
detailed provisions in regard to control of essential narcotic
drugs have been also given in Chapter VA of the NDPS Rules,
1985.
29. The commercial quantity of contraband has been
defined by Section 2 (viia) as per which it means any quantity
greater than the quantity specified by the Central Government
by notification in the Official Gazette, whereas Section 2(xxiiia)
defines small quantity as per which it means any quantity
Patna High Court CR. MISC. No.54100 of 2025 dt.27-08-2025
lesser than the quantity specified by the Central Government by
notification in the Official Gazette. In pursuance of these sub-
Sections viia and xxiiia of Section 2 of NDPS Act, Central
Government had issued a notification in the year, 1996 and
thereafter, the same was replaced by notification dated
19.10.2001, specifying the small and commercial quantity of
narcotic drugs and psychotropic substances by way of providing
a table of such narcotic drugs and psychotropic substances.
There were three Notes to this Table. However, on 18.11.2009,
Note no. 4 was added, as per which the quantity of the neutral
substances of any mixture or other preparations of narcotic
drugs or psychotropic substances has to be taken into
consideration while determining the "small or commercial"
quantity of the Narcotic Drugs or Psychotropic Substances.
30. This addition of Note 4 was made subsequent to
judgment of Hon'ble Supreme Court in E. Micheal Raj vs.
Narcotic Control Bureau as reported in (2008) 5 SCC 161, in
which Hon'ble Supreme Court has taken view that when any
narcotic drug or psychotropic substance is found mixed with
one or more neutral substance(s), for the purpose of imposition
of punishment it is the content of the narcotic drug or
psychotropic substance which shall be taken into consideration.
Patna High Court CR. MISC. No.54100 of 2025 dt.27-08-2025
31. The notification dated 18.11.2009 adding Note 4
to the notification dated 19.10.2001, was challenged. However,
Hon'ble Full Bench of Supreme Court in Hira Singh case
(supra) held that the notification is not ultra vires to the Scheme,
Rules and provisions of the NDPS Act, and hence, the writ
petitions challenging the notification was dismissed. It was
further held by Hon'ble Supreme Court in Hira Singh Case
(supra) that 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 it
has 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.
32. As such, it clearly emerges from the statutory
provisions of the NDPS Act and Rules made thereunder, that
even the cough syrup containing codeine with concentration of
less than 2.5% of total preparation is controlled and regulated
for its possession, sale, purchase, transport, export, import etc.
In this regard, Chapter-VA of the NDPS rules, 1985, containing
Rules 52A to 52M provide detailed provisions, as it has been
discussed above. Hence, the violation of such Rules in regard to
Patna High Court CR. MISC. No.54100 of 2025 dt.27-08-2025
Control and Regulation of the Essential Drugs is punishable
under the NDPS Act. As such, if someone is found to be in
possession of such drugs without authorization, he is liable to be
prosecuted under the NDPS Act and not under the Drugs and
Cosmetic Act, 1940.
33. Similar view has been taken by Delhi High Court
in Mohd. Ahsan Vs. Customs case (supra) and Jammu &
Kashmir High Court in Azhar Javed Rather Case (supra). In
Vibhor Rana Case (supra), Allahabad High Court has reached
different conclusion, because Section 9 of the NDPS Act and
Chapter VA of the NDPS Rules, 1985 made thereunder, was not
brought to the notice of the Court and hence, the same was not
considered and, therefore, there was different conclusion.
34. The aforesaid view of this Court gets reinforced
also in view of the decision of Union of India and Anr. Vs.
Sanjeev V. Deshpande, (2014) 13 SCC 1, wherein Hon'ble
Supreme Court has 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). 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
Patna High Court CR. MISC. No.54100 of 2025 dt.27-08-2025
(contemplated under Section 8(c), of DEALING IN narcotic
drugs and psychotropic substances."
(Emphasis supplied)
35. Hon'ble Apex Court in Mohd. Sahabuddin and
Anr. Vs. State of Assam, (2012) 13 SCC 491, has again held as
follows:
"10. It is not in dispute that each 100 ml bottle of
Phensedyl cough syrup contained 183.15 to 189.85 mg of
codeine phosphate and the each 100 ml bottle of Recodex
cough syrup contained 182.73 mg of codeine phosphate.
When the appellants were not in a position to explain as to
whom the supply was meant either for distribution or for
any licensed dealer dealing with pharmaceutical products
and in the absence of any other valid explanation for
effecting the transportation of such a huge quantity of the
cough syrup which contained the narcotic substance of
codeine phosphate beyond the prescribed limit, the
application for grant of bail cannot be considered based on
the above submissions made on behalf of the appellants."
(Emphasis supplied)
Present Case
36. Coming to the case on hand, I find that the
petitioner was found to be in possession of forty bottles of 100
ml each containing codeine phosphate & Triprolidine
Hydrochloride cough syrup, oxerex, bearing B. NO ONTS-
1663. However, it is not a case of the petitioner that he has any
authorization to possess such cough syrup in such a huge
quantity. As such, Sections 21 and 22 read with Section 8 of the
NDPS Act get applicable in the alleged facts and circumstances
of the case on hand.
Patna High Court CR. MISC. No.54100 of 2025 dt.27-08-2025
37. Moreover, when weight of the codeine along with
the weight of neutral substance is taken into consideration, the
weight of the seized cough syrup constitutes "commercial
quantity" in the light of Note-4 to the Notification specifying
small quantity and commercial quantity, dated 19.10.2001 and
in the light of Hira Singh Case (supra). Hence, Section 37 of
the NDPS Act also comes into play against grant of bail to the
petitioner, as per which not only Public Prosecutor is required to
be heard at the time of consideration of the bail petition of the
accused, even twin conditions as provided in Section 37 of the
NDPS Act have to be fulfilled to grant bail to the accused.
Moreover, these conditions are cumulative and not alternative
ones. Here, negation of bail is a rule and grant of it is an
exception.
38. The twin conditions as provided in Section 37 of
the NDPS Act are as follows:
(a) The satisfaction of the court that there
are reasonable grounds for believing that the accused
is not guilty of the alleged offence, and that
(b) He is not likely to commit any offence
while on bail.
39. While considering the scope of Section 37 of the
Patna High Court CR. MISC. No.54100 of 2025 dt.27-08-2025
N.D.P.S., Act in the light of the scheme of the act, Hon'ble
Supreme Court in State of M.P. Vs. Kajad, 2001 7 SCC 673
has held as follows:
"5. ... A perusal of Section 37 of the Act leaves no doubt
in the mind of the court that a person accused of an
offence, punishable for a term of imprisonment of five
years or more, shall generally be not released on bail.
Negation of bail is the rule and its grant an exception
under sub-clause (ii) of clause (b) of Section 37(1). For
granting the bail the court must, on the basis of the record
produced before it, be satisfied that there are reasonable
grounds for believing that the accused is not guilty of the
offences with which he is charged and further that he is
not likely to commit any offence while on bail. It has
further to be noticed that the conditions for granting the
bail, specified in clause (b) of sub-section (1) of Section
37 are in addition to the limitations provided under the
Code of Criminal Procedure or any other law for the time
being in force regulating the grant of bail. Liberal
approach in the matter of bail under the Act is uncalled
for."
(Emphasis supplied)
40. Similarly, in Narcotics Control Bureau Vs.
Mohit Aggarwal, (2022) 18 SCC 374, Hon'ble Supreme Court
has again held as follows:
"11. It is evident from a plain reading of the non
obstante clause inserted in sub-section (1) and the
conditions imposed in sub-section (2) of Section 37 that
there are certain restrictions placed on the power of the
court when granting bail to a person accused of having
committed an offence under the NDPS Act. Not only
are the limitations imposed under Section 439 of the
Code of Criminal Procedure, 1973 to be kept in mind,
the restrictions placed under clause (b) of sub-section
(1) of Section 37 are also to be factored in. The
conditions imposed in sub-section (1) of Section 37 is
that : (i) the Public Prosecutor ought to be given an
opportunity to oppose the application moved by an
accused person for release and ( ii) if such an
application is opposed, then the court must be satisfied
Patna High Court CR. MISC. No.54100 of 2025 dt.27-08-2025
that there are reasonable grounds for believing that the
person accused is not guilty of such an offence.
Additionally, the court must be satisfied that the
accused person is unlikely to commit any offence while
on bail.
..................................................................
15. We may clarify that at the stage of examining an
application for bail in the context of Section 37 of the
Act, the court is not required to record a finding that the
accused person is not guilty. The court is also not
expected to weigh the evidence for arriving at a finding
as to whether the accused has committed an offence
under the NDPS Act or not. The entire exercise that the
court is expected to undertake at this stage is for the
limited purpose of releasing him on bail. Thus, the
focus is on the availability of reasonable grounds for
believing that the accused is not guilty of the offences
that he has been charged with and he is unlikely to
commit an offence under the Act while on bail.
..................................................................
19. In our opinion the narrow parameters of bail
available under Section 37 of the Act, have not been
satisfied in the facts of the instant case. At this stage, it
is not safe to conclude that the respondent has
successfully demonstrated that there are reasonable
grounds to believe that he is not guilty of the offence
alleged against him, for him to have been admitted to
bail. The length of the period of his custody or the fact
that the charge-sheet has been filed and the trial has
commenced are by themselves not considerations that
can be treated as persuasive grounds for granting relief
to the respondent under Section 37 of the NDPS Act."
(Emphasis supplied)
41. In a recent judgment of Narcotics Control
Bureau Vs. Kashif, (2024) 11 SCC 372, Hon'ble Supreme
Court has again held as follows:
"9. There has been consistent and persistent view of
this Court that in the NDPS cases, where the offence is
punishable with minimum sentence of ten years, the
accused shall generally be not released on bail.
Negation of bail is the rule and its grant is an exception.
While considering the application for bail, the court has
to bear in mind the provisions of Section 37 of the
Patna High Court CR. MISC. No.54100 of 2025 dt.27-08-2025
NDPS Act, which are mandatory in nature. The
recording of finding as mandated in Section 37 is a sine
qua non for granting bail to the accused involved in the
offences under the said Act.
10. Apart from granting the opportunity of hearing to
the Public Prosecutor, the other two conditions i.e. (i)
the satisfaction of the court that there are reasonable
grounds for believing that the accused is not guilty of
the alleged offence, and that (ii) he is not likely to
commit any offence while on bail, are the cumulative
and not alternative conditions."
(Emphasis supplied)
42. In the alleged facts and circumstances of the case
on hand, there are no reasonable grounds to believe that the
petitioner is not guilty of the alleged offence and he is unlikely
to commit an offence under the NDPS Act while on bail.
43. As far as the claim of the petitioner that the
mandatory provisions of Section 42 of the NDPS Act have not
been complied with at the time of search and seizure of the
contraband, it would be relevant to point out that in Karnail
Singh Vs. State of Haryana, (2009) 8 SCC 539, Hon'ble Apex
Court has clearly held in para-35 of the judgment whether there
is adequate or substantial compliance with Section 42 of the
NDPS act or not is a question of fact to be decided in each case.
Similar view has been taken by Hon'ble Apex Court in Union
of India Vs. Mohd. Nawab Khan (AIR 2021 SC 4476), and
Buta Singh Vs. State of Haryana (AIR 2021 SC 1913).
44. Hence, violation of Section 42 of the NDPS Act
Patna High Court CR. MISC. No.54100 of 2025 dt.27-08-2025
being a question of fact can be decided during the trial only and
is not available to the petitioner in a Bail proceeding.
45. Considering the aforesaid facts and circumstances,
the petitioner is not entitled to be enlarged on bail at this stage.
46. Accordingly, the present petition stands rejected.
(Jitendra Kumar, J.)
Ravishankar/
Shoaib/chandan/
-
AFR/NAFR AFR
CAV DATE 13.08.2025
Uploading Date 27.08.2025
Transmission Date 27.08.2025
