Himachal Pradesh High Court
Reserved On : 9.10.2025 vs State Of H.P on 20 November, 2025
Author: Virender Singh
Bench: Virender Singh
1 2025:HHC:39167
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP(M) No. 2315 of 2025
Reserved on : 9.10.2025
Decided on : 20.11.2025
Shivam Shukla ...Applicant
Versus
State of H.P.
...Respondent
Coram
The Hon'ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?1
For the Applicant : Mr. K.B. Khajuria, Advocate.
For the respondent : Mr. Tejasvi Sharma, Additional
Advocate General with Mr.
Rohit Sharma, Dy. Advocate
General.
Virender Singh, Judge
Applicant Shivam Shukla has filed the present application, under Section 483 of Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as 'the BNSS') for releasing him, on bail, during the pendency of the trial, arising out of FIR No. 42 of 2025, dated 15.4.2025, registered under Sections 22 and 29 of the Narcotic Drugs and Psychotropic Substances Act 1 Whether Reporters of local papers may be allowed to see the judgment? Yes.
2 2025:HHC:39167 (hereinafter referred to as 'the NDPS'), with Police Station, Rohru, District Shimla, H.P.
2. The applicant has pleaded the fact that he is innocent person and has falsely been implicated, in the present case.
3. According to the applicant, he has been nabbed in this case, on the alleged disclosure statement, made by his co-accused, during investigation. He has further pleaded that he has no concern whatsoever, with the contraband, allegedly recovered, in the present case.
4. As per the further stand of the applicant, investigation, in the present case, is complete and charge sheet has been filed before the learned Additional Sessions Judge-I, Shimla, and the matter is stated to be fixed for supplying the documents.
5. It is the further stand of the applicant that he is a young man of 28 years, having bright future, and in case, he is not released on bail, it will adversely affect his future.
3 2025:HHC:39167
6. It is the further case of the applicant that the recovered cough syrup does not fall within the definition of manufactured drugs as per Section 2 (xi) of the NDPS Act.
7. Elaborating his stand, it has been pleaded that although, cough syrup contains Codeine Phosphate, however, same does not fall under the ambit of Narcotic Drugs and Psychotropic Substances Act, since the same is schedule H1 drug as per the Drugs and Cosmetics Act, 1940 and Rules 1945. As such, according to the applicant, rigors of Section 37 are not applicable, in the present case. 8 The applicant has further pleaded that as per notification No. S.O. 826 (E), dated 14.11.2985, the Central Government has declared certain narcotic substances and preparations to be manufactured drug, and as per Entry at serial No. 35 of the said notification, methyl morphine and ethyl morphine and their salts have been explained.
4 2025:HHC:39167
9. The applicant, through his counsel, has undertaken to abide by the terms and conditions, to be imposed by this Court, in case, he is ordered to be released on bail, during the pendency of the trial.
10. On these submissions, a prayer has been made to allow the bail application.
11. When put to notice, the police has filed the status report, disclosing therein, that on 15.4.2025, H.C.Vishal Nainta No. 88, alongwith other police officials, in a private vehicle bearing registration No.HP-77-0243 had left Police Station, Rohru, for patrolling duty, traffic checking duty and duty to detect the crime, relating to Excise and Narcotics, within the jurisdiction of Police Station, Rohru, Police Station, Jubbal and Chirgaon etc. 11.1. When, I.O., H.C. Vishal Nainta No. 88, alongwith other police officials, was present at Samala, Rohru, then, at about 5:05 a.m., he received a secret information that one Sanju Rai, who is resident of Nepal, and presently residing at Parola in Uttrakhand, 5 2025:HHC:39167 has kept prohibited drugs Codeine and Nitrazepam with him, and that said Sanju Rai was present in the premises of New Bus Stand, Rohru, District Shimla. As per the information, he is having a green and black coloured zip bag, and containing a large quantity of prohibited drugs, i.e. Codeine and Nitrazepam. His age is stated to be 30 years. The information was found to be authentic and reliable, upon which, I.O. complied with the provisions of Section 42(2) of the NDPS and submitted the same to the Supervisory Officer.
11.2 Thereafter, the I.O. requested the counselor Jitender Chauhan to be the witness, upon which, said Jitender Chauhan gave his consent to be so. Jitender Chauhan also brought one Narender Chauhan, who was also associated in the investigation. 11.3 Thereafter, the Police party alongwith the independent witnesses proceeded towards New Bus Stand, Rohru. At about 5:45 a.m., near bus stand Rohru, on the bank of Shikdi river, they noticed a 6 2025:HHC:39167 person, who was having a carry bag, in his lap. The appearance of the said person seemed to be as per the secret information, upon which, the I.O., alongwith police party, proceeded towards the said person. 11.4 On seeing the Police party, the aforesaid person got perplexed, and he was nabbed by the police officials. On inquiry, he disclosed his name as Sanju Rai. Thereafter, the I.O. apprised him about the secret information. The carry bag, which, he was having, was checked, and on checking the same, it was found containing two card board boxes. On opening the card board boxes, Nitrazepam tablets I-P 10 mg Nitrcor-10 was found written on the same.
11.5 On checking the said boxes, one box having 7 strips of tablets, containing 15 tablets, in each strip and 18 small strips, containing 10 tablets in each strip, were found. On calculating, total 530 tablets were found. Apart from this, 48 vials of Codeine Phosphate and Triprolidine HCL Syrup ANREX 100 ML and 22 vials of Hydrocholoride and Codeine Phosphate 7 2025:HHC:39167 Cough Syrup Codilante-T 100 ML were found. On each vial, manufacture date, March 2025 and expiry date, February 2025, was found printed. The said substance was found to be prohibited drugs, under the NDPS Act. Accused Sanju Rai could not produce any license or prescription slip.
11.6 On weighment, one tablet of Nitrazepam tablet IP 10 mg Nitrcor-10 was found to be 0.55 grams and total weight of 530 tablets was found to be 291.5 grams. Similarly, weight of one vial was found to be 137.45 grams and weight of total 70 vials were found to be 291.5 grams.
11.7 The case property was taken into possession and FIR was registered. Thereafter, accused Sanju was inquired. On inquiry, he has disclosed his name as Madhav. He has disclosed that he is also known by the name of Sanju. He has further disclosed that in the year 2020, he was nabbed alongwith the Chitta, within the jurisdiction of Police Station, Jubbal. In the said case also, his name has been mentioned as Sanju Rai.
8 2025:HHC:39167 Thereafter, accused Sanju was arrested and produced before the Court, from where, he was remanded to Police custody for three days.
11.8 During investigation, accused Sanju has disclosed that he has purchased the contraband from Shivam Shukla (applicant), who is running the shop under the name and style 'Rajan Medical Store'. He has disclosed that he can identify the said shop. The statement of accused Sanju was recorded under Section 23 of Bharatiya Sakshya Adhiniyam (hereinafter referred to as 'the BSA'). 11.9 On 18.4.2025, accused Sanju was further remanded to Police custody for 11 days. On 22.4.2025, he was taken to Rupedia, Uttar Pradesh, and as per his statement, recorded under Section 23 of BSA, Rajan Medical Store was searched in the presence of Drugs Inspector, local police and independent witnesses.
11.10 During investigation, from the shop of applicant, 6 vials of AMDITUSS Batch No. NLE 0530, 9 2025:HHC:39167 5 vials of ANREX Batch No. AN-1689, 1 vial of RAYTUSS Batch No. NLE 0009 and 1 vial of CODILANTE-T Batch No. AML-102, which, according to the Police, were narcotic substance/prohibited substance.
11.11 According to the Police, 102 vials of CODILANTE-T of Batch No. AML-102 have been recovered from accused Sanju earlier also. All the prohibited drugs were taken into possession. Spot map was prepared. Applicant Shivam Shukla was arrested and Section 29 of the NDPS Act was added, in this case.
11.12 The contraband, so recovered, was sent to SFSL, Junga, from where, following report has been received:
Laboratory Examination and Result NITCOR-10 The exhibit stated to be Nitcor-10 tablets in cloth parcel marked as A-1 is a sample of NITRAZEPAM TABLETS Total weight of tablets =296.800 g. CODILANTE-T 10 2025:HHC:39167 Codeine is present in the exhibit stated to be Codilante-T Syrup in cloth parcel marked as A-2 Total weight of Syrup=2.721 Kg ANREX Codeine is present in the exhibit stated to be Anrex Syrup in cloth parcel marked as A-2 Total weight of Syrup=5.923 kg.
Laboratory Examination and Result AMDITUSS (Batch No. NLE530) Codeine is present in the exhibit stated to be Amdituss in cloth parcel marked as P-1 Total weight of Syrup=696.600 gm Codeine is present in the exhibit stated to be Codilante-T in cloth parcel marked as P-1 Total weight of Syrup=123.700 gm ANREX(Batch No. AN-1689) Codeine is present in the exhibit stated to be Anrex in cloth parcel marked as P-1 Total weight of Syrup = 603.0 gm RAYTUSS (Batch No. NLF0003) Codeine is present in the exhibit stated to be Raytuss in cloth parcel marked as P-1.
Total weight of Syrup = 114.100 gm.
11.13 No other case is found to have been registered against applicant Shivam Shukla. Charge sheet is stated to have been filed on 5.8.2025. 11.14 On the basis of above facts, a prayer has been made to dismiss the application.
11 2025:HHC:39167
12. In this case, accused Sanju Rai was found in possession of one box, having 7 strips of tablets, containing 15 tablets, in each strip and 18 small strips, containing 10 tablets in each strip. On counting, total 530 tablets were found. Apart from this, 48 vials of codeine phosphate and triprolidine HCL Syrup ANREX 100 ML and 22 vials of Hydrocholoride and codeine phosphate Cough Syrup Codilante-T 100 ML were found. On each vial, manufacture date, March 2025 and expiry date, February 2025, were found printed, whereas, applicant Shivam Shikla was found in the possession of 6 vials of AMDITUSS Batch No. NLE 0530, 5 vials of ANREX Batch No. AN-1689, 1 vial of RAYTUSS Batch No. NLE 0009 and 1 vial of CODILANTE-T Batch No. AML-10.
13. The Police registered the case under Sections 22 and 29 of the NDPS Act, as such, in order to decide the question of bail to the applicant, the entire substance has to be considered.
12 2025:HHC:39167
14. The total weight of 530 tablets of Nitrazepam was found to be 291.5 grams, and as per the notification, specifying the quantity of the contraband, Nitrazepam, weighing more than 500 grams, falls within the definition of 'commercial quantity'. As such, Nitrazepam, recovered in this case, does not fall within the definition of 'commercial quantity', whereas, the other substance, i.e. the vials, containing Codeine Phosphate admittedly falls within the definition of commercial quantity.
15. However, the question, as to whether, the drug containing Codeine Phosphate falls within the definition of manufactured drug, under the NDPS Act, has been referred to a larger Bench by this Court in Cr. MP(M) No. 328 of 2024, titled as 'Deepak Rawat versus State of H.P.' Relevant portion of the judgment is reproduced as under:
"Learned counsel for the petitioner submitted that as per the prosecution case, the petitioner was involved in the commission of offence punishable under Sections 22 and 29 of the Narcotic Drugs and Psychotropic Substances Act (ND&PS Act) 13 2025:HHC:39167 involving a drug containing Codeine Phosphate. He submitted that a drug containing Codeine Phosphate does not fall within the definition of manufactured drugs under the ND & PS Act. He has relied upon the judgments of Co-ordinate Bench of this Court in Kesar Singh versus State of H.P in Cr.MP(M) No. 2619 of 2023 decided on 01.03.2024, Raghav Saini vs. State of Himachal Pradesh, 2023 HLJ 2023 (HP)(2) 905 and Bablu vs. State of Himachal Pradesh in Cr. MP(M) No.480 of 2024 decided on 05.04.2024 and judgment of Allahabad High Court in Vibhor Rana versus Union of India, (2022) 119 ACRC 117 in support of his submission.
2. A Co-ordinate Bench of this Court held in Om Pal vs. State of H.P. 2014 Cri L. J. 4147 that a drug containing Codeine Phosphate is a manufactured drug covered under the ND & PS Act. This judgment was followed in Praduman Justa vs. State of Himachal Pradesh 2016 Cri.L. J. 3639 and it was held that a drug containing Codeine Phosphate cannot be excluded on a percentage basis from the definition of the manufactured drugs. Another Co-ordinate Bench of this Court without noticing Om Pal (supra) and Praduman Justa (supra) held in Raghav Saini (supra) that a drug containing Codeine Phosphate having a concentration of not more than 2.5 percent in undivided preparations does not fall within the definition of manufactured drugs.
14 2025:HHC:39167 Another Co-ordinate Bench without noticing Praduman Justa (supra) held in Kesar Singh (supra) that without mentioning whether the concentration of the drug met the requirements mentioned in Entry No.35 of S.O. 826 (E) dated 14.11.1985 the drug will not fall within the definition of manufactured drug. The same Hon'ble judge reiterated this position in Bablu (supra) and held that the concentration of Codeine dilution and preparation has to be more than 2.5% in undivided preparation for the drug(Methyl Morphine) to be termed as manufactured drugs under the NDPS Act.
3. This Court without noticing the judgments of Praduman Justa (supra) and Raghav Saini (supra) held in Nasir Hussain versus State of H.P. in Cr.MPM No. 319 of 2024 decided on 30.04.2024 that a drug containing Codeine Phosphate falls within the definition of a manufactured drug. This Court reiterated this position in Ramesh Kumar versus State of H.P. Cr.MP(M) No. 1111 of 2024 decided on 14.06.2024 after distinguishing Raghav Saini (supra).
4. Thus, different Benches of this Court have taken different views on the question, whether a drug containing Codeine Phosphate falls within the definition of manufactured drugs or not. This question is likely to arise frequently and is required to be decided by a Larger Bench authoritatively. Hence, the following question of 15 2025:HHC:39167 law is submitted for the decision by the Larger Bench: -
1. Whether the drug containing Codeine Phosphate falls within the definition of manufactured drugs under the NDPS Act?
5. These papers be placed before Hon'ble the Chief Justice for referring the matter to a Larger Bench if deemed proper."
Hence, in view of the aforesaid order, it would be in the interest of justice to await the decision of the Larger Bench on the question in issue."
15. Thereafter, the reference was placed before a Division Bench of this Court, but, vide order dated 22.08.2024, the Division Bench deferred the consideration of the reference, i.e. Cr. MP(M) No.328 of 2024, on the ground that Hon'ble Supreme Court is already seized of the matter. It was observed as under:-
"Since the Hon'ble Supreme Court is already seized of the matter in a batch of appeals, lead being Criminal Appeal No.115/2018, titled as Union of India Vs. Ashok Kumar and the same is otherwise scheduled to be listed for 29.08.2024, we deem it appropriate to defer the consideration of this case.
16 2025:HHC:39167 Learned counsel for the petitioner would, however, argue that the liberty of the petitioner is at stake and the matter regarding bail is not being taken up for consideration only on account of the reference made by the learned Single Judge of this Court to the learned Division Bench. We really wonder as to why the application of the petitioner for grant of bail cannot be heard till and so long the reference is not decided. Accordingly, the petitioner is at liberty to approach the learned Single Judge by making an appropriate request for taking up his application for grant of bail. List on 19.09.2024.
It is, however, made clear that the aforesaid liberty shall also be available to all other similarly situate persons."
16. In the present case, investigation is almost complete. Considering the fact that the matter is already under consideration, before the Hon'ble Supreme Court, in Cr. Appeal No. 115 of 2018, titled as, 'Union of India versus Ashok Kumar', this Court is of the view that till the decision of the aforesaid reference, before the Hon'ble Supreme Court, the applicant can be released on interim bail, as his liberty cannot be curtailed, for unlimited period.
17 2025:HHC:39167
17. Considering all these facts, this Court is of the view that the bail application is liable to be allowed and is accordingly allowed.
18. Consequently, the applicant is ordered to be released on interim bail, during the pendency of trial, arising out of FIR No. 42 of 2025, dated 15.4.2025, registered under Sections 22 and 29 of the NDPS Act with Police Station, Rohru, District Shimla, H.P. on his furnishing personal bond in the sum of Rs. 1,00,000/-, with one surety in the like amount, to the satisfaction of the learned trial Court.
19. This order, however, shall be subject to the following conditions:-
a) Applicant shall regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing the appropriate application;
b) Applicant shall not tamper with the prosecution evidence nor hamper the investigation of the case, in any manner, whatsoever;
c) Applicant shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or the Police Officer, and 18 2025:HHC:39167
d) Applicant shall not leave the territory of India without the prior permission of the Court.
20. It is clarified that the interim bail granted to the applicant, would be subject to final decision of the question, as to whether the drug containing Codeine Phosphate falls within the definition of manufactured drugs, under the NDPS Act, and in case such question is decided against the applicant, then, he shall surrender before the learned trial Court, forthwith.
21. It is also made clear that the interim order does not give any right to the applicant for seeking regular bail, in future, and the regular bail, can be filed, after the decision of reference, by the Hon'ble Supreme Court.
22. Any of the observations, made herein above, shall not be taken, as an expression of opinion, on the merits of the case, as these observations are confined, only to the disposal of the present bail application.
23. It is made clear that the respondent-State is at liberty to move an appropriate application, in case, 19 2025:HHC:39167 any of the bail conditions is found violated by the applicant.
24. The Registry is directed to forward a soft copy of the bail order to the Superintendent of Model Central Jail, Kanda, Shimla, through e-mail, with a direction to enter the date of grant of bail in the e- prison software.
25. In case, the applicant is not released within a period of seven days from the date of grant of bail, the Superintendent of Model Central Jail, Kanda, Shimla is directed to inform this fact to the Secretary, DLSA, Shimla. The Superintendent of Model Central Jail, Kanda, Shimla is further directed that if the applicant fails to furnish the bail bonds, as per the order passed by this Court within a period of one month from today, then, the said fact be submitted to this Court.
(Virender Singh) Judge November 20, 2025 Kalpana Digitally signed by KALPANA KALPANA Date: 2025.11.20 14:39:26 +0000 20 2025:HHC:39167