Patna HC Grants Bail in NDPS Case, Says Phenothiazine, Promethazine Not Covered Under Law

New Delhi: In a significant ruling, the Patna High Court granted bail to three appellants convicted under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, observing that the seized substances, later identified as Phenothiazine and Promethazine, do not fall within the ambit of narcotic drugs or psychotropic substances under the law.

The judgment was delivered by a Division Bench comprising Justice Mohit Kumar Shah and Justice Arun Kumar Jha while hearing Criminal Appeal (DB) Nos. 285, 291, and 657 of 2025 filed by Vijay Kumar, Dharmendra Kumar, and Ravindra Kumar against the State of Bihar.

The case stems from an incident dated June 26, 2022, when police officials on patrol in Bodh Gaya received information about three individuals transporting heroin on motorcycles. Acting on the tip-off, the police intercepted the accused near a hotel on NH-83. Upon search conducted in the presence of a Magistrate, the police recovered over 2 kg of a suspected heroin-like substance from the appellants along with mobile phones and motorcycles. A case was subsequently registered under Sections 8, 21(c), 25, and 29 of the NDPS Act, and after investigation and trial, the appellants were convicted and sentenced to 15 years of rigorous imprisonment along with a fine of Rs. 1.5 lakh.

Counsel for the appellants, Ajay Kumar Thakur, challenged the conviction, arguing that the Forensic Science Laboratory (FSL) report clearly indicated that the seized substance was “Phenothiazine along with Promethazine,” which are neither classified as narcotic drugs nor psychotropic substances under the NDPS Act. It was further contended that these substances are covered under the Drugs and Cosmetics Act, 1940, appearing in Schedule H and Schedule G of the Drugs Rules, 1945, and are commonly used in medicines for their antihistamine and antipsychotic properties.

The counsel emphasized that since these substances are not listed in the Schedule of the NDPS Act nor notified by the Central Government, the conviction under NDPS provisions is legally unsustainable. Reliance was also placed on previous cases where similar substances were held not to fall under the NDPS Act.

On the other hand, the State of Bihar, represented by APP Shashi Bala Verma, conceded that the substances were not listed under the NDPS Act but argued that they are commonly used as “cutting agents” in narcotics to enhance bulk, reduce purity, and modify pharmacological effects. The State contended that the NDPS Act should be interpreted broadly to curb drug trafficking and that a narrow interpretation would defeat the object of the legislation.

After examining the submissions and the statutory framework, the Court observed in detail that Phenothiazine and Promethazine are not included in the list of narcotic drugs or psychotropic substances under the NDPS Act or its Schedule. The Court further noted that although these substances are regulated under the Drugs and Cosmetics Act, violations relating to them are punishable under that Act and not under the NDPS Act. The Bench also referred to legal precedents and clarified that offenses under the Drugs and Cosmetics Act cannot be prosecuted through police FIRs but require complaints by authorized Drug Inspectors.

The Court concluded that the conviction of the appellants under the NDPS Act appeared prima facie unsustainable, observing that the substances recovered do not meet the statutory definition required for such offenses.

In the final judgement, the court held,

"Accordingly, we direct suspension of order of sentence dated 08.01.2025 qua the appellants above-named as also direct to release them on bail, during the pendency of their respective appeals, on furnishing bail bonds of Rs.10,000/-(Ten Thousand) each with two sureties of the like amount each to the satisfaction of learned Additional Sessions Judge-II-cum-the Special Judge (NDPS Act), Gaya, in connection with NDPS Case No. 39/2022, arising out of Bodh Gaya P.S. Case No. 379 of 2022."

To view the official order, click the link below: