Shivaji Baitha @ Shivji Baitha v. The State Of Bihar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.84065 of 2025 Arising Out of PS. Case No.-134 Year-2025 Thana- GANGABRIDGE District- Vaishali ====================================================== Shivaji Baitha @ Shivji Baitha, Son of Late Sattan Baitha, Resident of Village- Chotahi, P.S.- Riga, District- Sitamarhi Bihar ... ... Petitioner/s
Versus
The State of Bihar ... ... Opposite Party/s ====================================================== Appearance :
For the Petitioner/s :
Mr. Shri Prakash Tiwari, Advocate For the Opposite Party/s :
Mr. Md. Fahimuddin, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY ORAL ORDER 12-12-2025 Heard learned counsel for the petitioner and learned APP for the State.
2. The petitioner has prayed for bail in connection with Ganga Bridge P.S. Case No. 134 of 2025 registered for the offence punishable under Sections 21(C ) and 29 of the N.D.P.S. Act.
3. The case of the prosecution is that the petitioner and one Sachin Kumar were arrested. Petitioner is the driver of the Bolero Pickup on which Parle Biscuits and 76 cartoons of Onerex Wings Codeine Phosphate Cough Syrup were recovered.
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 only the driver and the consignment was sent by
2/4 Guddu Kumar and Raju Kumar to Sitamarhi. He was having no knowledge regarding the alleged cough syrup being loaded on the said Pickup. Petitioner is having no criminal antecedent and he is languishing in judicial custody since 19.08.2025.
5. Learned counsel for the petitioner has submitted that the Central Government has issued Notification No. S.O. 826(E) dated 14.11.1985 which is given hereunder:- "S.O. 826(E). - In exercise of the powers conferred by sub-clause (b) of clause (xi) of section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), the Central Government hereby declares the following narcotic substances and preparations to be manufactured drugs, namely:- xxx
35. Methyl morphine (commonly known as 'Codeine') and Ethyle morphine and their salts (including Dionine), all dilutions and preparations 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% in undivided preparations and which have been established in Therapeutic practice.
xxx"
6. In this case, Onerex Wings Codeine Phosphate Cough Syrup has been recovered from the possession of the
3/4 petitioner 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 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 Principal District and Sessions Judge, Vaishali at Hajipur in
4/4 connection with Ganga Bridge P.S. Case No. 134 of 2025. (Ashok Kumar Pandey, J) lata/- U T