In Dharmendra Kumar v. The State of Bihar (2026), Patna High Court's Division Bench of Justices Mohit Kumar Shah and Arun Kumar Jha delivered a 14-page long judgement dated April 9, 2026. It directed the suspension of the order of sentence imposed upon the accused persons booked under the Narcotic Drugs and Psychotropic Substance (NDPS) Act, 1985. The judgement was authored by Justice Jha. The Court has held that Phenothiazine and Promethazine do not come within the ambit of the NDPS Act, and they are covered under the Drugs and Cosmetics Act, 1940.
The High Court was considering an appeal filed by the appellant convicts seeking the suspension of sentence and grant of bail who were convicted under Section 21(c) of the NDPS Act.
Justice Jha held, “The discussions made hereinbefore clearly shows that the seized articles which have been found to be Phenothiazine and Promethazine do not come within the ambit of any narcotic drug and psychotropic substances for the purposes of NDPS Act. Therefore, the judgment of conviction and order of sentence qua the appellants for possession of these two substances, prima facie, appears to be against the provisions of the NDPS Act and might not be sustainable, hence we find that the appellants have been able to make out a strong case in their favour for suspension of sentence and grant of bail to them during the pendency of their respective appeals.”
The police officials had received information that three persons riding two motorcycles were going to a hotel to make a delivery of a consignment of Heroin. The informant reached the spot in front of the named hotel, where the Magistrate and Panther constables also came, and the checking of vehicles started. The police party caught hold of the suspected persons, and they were served with notice under Section 50 of the NDPS Act. From the motorcycle driven by the appellants Dharmendra Kumar and Ravindra Kumar, recovery of 1.006 Kg of heroin like substance was made, whereas from the motorcycle driven by appellant Vijay Kumar, recovery of 1.012 Kg of heroin like substance was made. On testing the seized articles, prima facie evidence of contraband containing heroin was found.
On the basis of the written information of the informant, a case was registered under Sections 8, 21(c), 25 and 29 of the NDPS Act. Charges were framed, and the Trial Court convicted the appellants. The appellants approached the High Court in appeal on the ground that, as per the result of the report, the seized substances were “Phenothiazine along with Promethazine” and they are neither narcotic drugs nor psychotropic substances under the NDPS Act. Reasoning The Bench, at the outset, explained that Section 2 (xiv) of the NDPS Act defines “narcotic drug” to mean coca leaf, cannabis (hemp), opium poppy straw and includes all manufactured drugs. Similarly, Section 2 (xxiii) defines “Psychotropic Substance” as 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.
Referring to the Schedule attached with the NDPS Act, which provides the list of psychotropic substances under Clause (xxiii) of Section 2, the Bench noted that this list does not contain either Phenothiazine or Promethazine. Similarly, Schedule I of NDPS Rules, 1985, which contains a list of narcotic drugs and psychotropic substances for which import into and export out of India has been provided for medical, scientific and training purposes, also does not contain the aforementioned two substances, i.e., Phenothiazine and Promethazine.
Justice Jha found that the substances Phenothiazine and Promethazine find mention under Schedule H and G, respectively, of the Drugs Rules, 1945. The substance “Phenothiazine, derivatives of and salts of its derivatives” has been mentioned as item no.397 in Schedule H and the substance “Promethazine” has been mentioned under the heading ‘Antisthaninic substances, the following, their salts, their derivatives, salts of their derivatives’ in Schedule G of Drugs Rules, 1945.
The judgement reads: “Further it is also pertinent to take note of the law in this regard to the effect that if any cognizable offence has been committed under Chapter IV of Drugs and Cosmetics Act, 1940, the police is not empowered to register an FIR”.
It concluded that the seized articles did not come within the ambit of the NDPS Act. It suspended the order of sentence and directed the release of the appellants on bail during the pendency of the appeals.
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