Possession Of Cough Syrup With Less Than 2.5% Codeine Attracts NDPS Act If Held Without Authorisation: Patna High Court
The Patna High Court has held that cough syrup containing codeine in a concentration of less than 2.5% of the total preparation does not fall outside the ambit of the NDPS Act merely on that ground. The Court further observed that such preparations are classified as essential narcotic drugs and their possession, sale, purchase, transport, import and export remain regulated under the NDPS Act...
The Patna High Court has held that cough syrup containing codeine in a concentration of less than 2.5% of the total preparation does not fall outside the ambit of the NDPS Act merely on that ground. The Court further observed that such preparations are classified as essential narcotic drugs and their possession, sale, purchase, transport, import and export remain regulated under the NDPS Act and the Rules framed thereunder.
A Single Judge Bench of Justice Jitendra Kumar made the observation while rejecting an anticipatory bail plea filed in connection with Kuchaikote P.S. Case No. 316 of 2023 registered under provisions of the Drugs and Cosmetics Act and the NDPS Act.
The prosecution case was that a truck was intercepted at the Balthari Check-Post in Gopalganj. During inspection, officials recovered 3200 bottles of Eskuf Codeine Syrup of 100 ml each, six containers of liquid solution, documents relating to the consignment, a mobile phone and cash. The driver was arrested and the vehicle was seized. Samples of the syrup were subsequently sent for laboratory examination.
The petitioner, who claimed to be the owner of the truck, sought anticipatory bail contending that he had merely hired out the vehicle to a transporter and had no connection with the alleged offence. It was further argued that the seized cough syrup contained less than 2.5% codeine of the total preparation. Therefore, according to the petitioner, the product was an essential drug and could not attract prosecution under the NDPS Act. At best, proceedings could be maintained under the Drugs and Cosmetics Act.
The State opposed the plea. It submitted that a large quantity of codeine syrup had been recovered from the truck and there were no documents authorising possession of the consignment. The prosecution also relied on the driver's statement that the truck had been handed over to him already loaded with the seized material.
The State argued that even though codeine concentration may be below 2.5%, such preparations continue to be regulated under the NDPS framework. Consequently, possession without the requisite authorization would still attract penal provisions of the Act.
Agreeing with the State, the Court examined the scheme of the Drugs and Cosmetics Act and the NDPS Act. The Court noted that while the Drugs and Cosmetics Act governs drugs meant for therapeutic and medical use, the NDPS Act is a special legislation intended to regulate narcotic drugs and psychotropic substances.
Referring to the NDPS Act and Rules, the Bench observed that codeine and its preparations are recognised as essential narcotic drugs. The Court further noted that the Rules contain a detailed regulatory framework governing their possession and movement. The Court observed:
“As such, it clearly emerges from the statutory provisions of the NDPS Act and Rules made thereunder, that even the cough syrup containing codeine with concentration of less than 2.5% of total preparation is controlled and regulated for its possession, sale, purchase, transport, export, import etc…Hence, the violation of such Rules in regard to Control and Regulation of the Essential Drugs is punishable under the NDPS Act. As such, if someone is found to be in possession of such drugs without authorization, he is liable to be prosecuted under the NDPS Act and not under the Drugs and Cosmetic Act, 1940.”
The Court also distinguished the Allahabad High Court's decision in Vibhor Rana v. Union of India, relied upon by the petitioner. It observed that certain provisions of the NDPS Act and Rules had not been brought to the notice of that Court.
Applying the law to the facts of the case, the Bench noted that 3200 bottles of codeine-based cough syrup had been recovered and that the petitioner had not claimed to possess any authorization permitting possession of such quantity. The Court further observed that when the weight of the codeine is considered together with the neutral substance, the seized material would fall within the category of commercial quantity. Consequently, the rigours of Section 37 of the NDPS Act would apply.
Holding that there were no reasonable grounds to believe that the petitioner was not guilty of the alleged offence, the Court rejected the anticipatory bail application.
Case Title: Ravi Kumar Prajapati @ Ravi Prajapati v. State of Bihar
Case No.: Criminal Miscellaneous No. 32844 of 2025.
Appearance: Mr. Brajesh Kumar Singh @ Brajesh Singh for Petitioner. Mr. Upendra Kumar for State.