Cough Syrup With Permissible Codeine Limit Not Contraband Under NDPS Act; Police Misusing Procedure: Patna High Court
The Patna High Court has granted bail to an accused in an NDPS case, observing that cough syrups containing codeine below the permissible concentration of 2.5% do not fall within the ambit of contraband under the Narcotic Drugs and Psychotropic Substances (NDPS) Act. The Court remarked that police were “invariably misusing the procedure” by registering cases falling within the Drugs and Cosmetics Act under the NDPS Act.
Justice Ashok Kumar Pandey was hearing a bail application filed in connection with a case registered under Sections 21(c), 8(c) and 29 of the NDPS Act. According to the prosecution, 484 litres of Cough Linctur RJT-SCEN syrup containing codeine were recovered from a pick-up van. The applicant contended that nothing had been recovered from his possession. He argued that the witnesses of the seizure list are police personnel and police have not complied with Section 105 of the BNSS while making the seizure.
The applicant further relied on Central Government Notification No. S.O. 826(E) dated November 14, 1985, submitting that preparations containing codeine within the prescribed limits were exempted from treatment as manufactured drugs under the NDPS framework. He contended that the recovered syrup contained codeine at a concentration below 2.5% and that any violation would fall under the Drugs and Cosmetics Act.
The Court observed that where the drug itself does not fall within the definition of a narcotic drug under Section 2(d) of the NDPS Act, there is no jurisdictional basis for proceeding under the Act and, consequently, no occasion to examine the quantity recovered.
“… 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 Court remarked.
The Court expressed its surprise at the police filing cases under the N.D.P.S. Act when cough syrups containing codeine are recovered, emphasizing that it does not come within the scope of a contraband.
“… it is very strange that the cases 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,” the Court observed.
The Court noted that cough syrup containing codeine is a Schedule H drug, for which the seller must hold a licence and maintain a register. It held that such cases involve only the violation of Drugs and Cosmetics Act, whereas the police are misusing the procedure.
Accordingly, the Court allowed the bail application.
Case Title: Bharat Kumar v. State of Bihar [Criminal Miscellaneous No. 60727 of 2026]