Kanhai Mahto Vs The State of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.29320 of 2026

Arising Out of PS. Case No.-32 Year-2026 Thana- BHAPTIAHI District- Supaul

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Kanhai Mahto S/O Hari Mahto R/O Arya Kumar Road, Machhua Toli, Santoshi Mata Mandir, Ward No. 42, P.S- Kadamkuan, Distt.- Patna.

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... ... Petitioner/s

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Versus

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The State of Bihar ... ... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. N.K. Agarwal, Sr. Advocate Mr. Kumar Rajdeep, Advocate For the Opposite Party/s : Mrs. Pushpa Sinha, APP ======================================================

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CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY ORAL ORDER

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2 05-05-2026

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Heard learned counsel for the petitioner and learned APP for the State.

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The petitioner has prayed for bail in connection

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with Bhaptiyahi P.S. Case No. 32 of 2026 registered for the offence punishable under Sections 21(c), 25 and 29 of the N.D.P.S. Act.

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The case of the prosecution is that from a vehicle, altogether 168 liters of Wiscof cough syrup containing codeine was recovered.

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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. Nothing has been recovered from the possession of this petitioner. The petitioner has no concern in any way with the

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Patna High Court CR. MISC. No.29320 of 2026(2) dt.05-05-2026 2/4

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alleged contraband. There is no independent witness of the seizure list. Police has not complied section 105 of BNSS while preparing seizure. A statement has been made in para-3 of this petition that the petitioner has got no criminal antecedent and he is languishing in judicial custody since 07.02.2026.

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Learned counsel for the petitioner has further 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.

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In this case, wiscof Cough syrup containing codeine phosphate has been recovered from a vehicle and the concentration of the codeine in this drug is approximately 0.2%

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Patna High Court CR. MISC. No.29320 of 2026(2) dt.05-05-2026 3/4

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which is less than 2.5% as provided in the above notification.

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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 from the possession of the petitioner is commercial quantity.

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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.

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Having heard learned counsel for the parties and considering the facts and circumstances of the case, this Court is inclined to enlarge the petitioner on bail. The above named petitioner is directed to be enlarged on bail on furnishing bail bond of Rs. 10,000/- (Rs. ten thousand only) with two sureties of the like amount each to the satisfaction of the learned Court of Sessions Judge-cum-Special Judge (NDPS), Supaul connection with Bhaptiyahi P.S. Case No. 32 of 2026.

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Before parting, it is very strange that the cases

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Patna High Court CR. MISC. No.29320 of 2026(2) dt.05-05-2026 4/4

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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.

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(Ashok Kumar Pandey, J)

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Shubham/-

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U T

Kanhai Mahto v. The State of Bihar

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Kanhai Mahto v. The State of Bihar

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