Patna High Court Flags Police's “Invariable Misuse” Of NDPS Act In Cough Syrup Cases; Says Such Offences Fall Under Drugs & Cosmetics Act

The Patna High Court has observed that police authorities are “invariably misusing” the provisions of the NDPS Act in cases involving cough syrups containing permissible levels of codeine, holding that such cases ought to fall under the Drugs and Cosmetics Act.

A Single Judge Bench comprising Justice Ashok Kumar Pandey was hearing a bail application filed in connection with Mansi P.S. Case No. 218 of 2025, initially registered under Section 30(f) of the Bihar Prohibition and Excise Act and later converted into offences under Sections 8(c), 21(b) and 29 of the NDPS Act.

As per the prosecution case, 1200 bottles (100 ml each) of RTX-SCEN cough syrup containing codeine were recovered from a Scorpio vehicle allegedly owned and driven by the petitioner. The petitioner contended that he had been falsely implicated and that nothing had been recovered from his conscious possession. It was further argued that the seizure witnesses were police personnel and not independent witnesses, and that the mandatory procedure under Section 105 of the BNSS had not been followed. The petitioner also pointed out that he had been in custody since 07.09.2025.

Importantly, the petitioner relied upon Notification No. S.O. 826(E) dated 14.11.1985 issued under the NDPS Act, submitting that preparations containing codeine are exempted from the definition of narcotic drugs if the concentration is below 2.5%. It was submitted that the cough syrup in question contained approximately 0.2% codeine, which falls well below the prescribed threshold.

Opposing the plea, the State relied on the decision of the Supreme Court in Hira Singh v. Union of India, contending that the entire mixture must be considered for determining quantity, thereby making it a case of commercial quantity.

The Court, however, noted that where the substance itself does not qualify as a narcotic drug under Section 2(d) of the NDPS Act, the question of quantity would not arise. It observed that the Central Government has the authority to notify exempted preparations, and in the present case, the cough syrup fell within the permissible limits.

Before parting, the Court made a significant observation:

“…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. Cough syrup containing codeine is only a schedule-H drug for which, the shopkeeper has to maintain register and he must be a licensed one. Such type of cases should be filed under Drugs and Cosmetic Act. It is only the violation of Drugs and Cosmetic Act whereas, police is invariably misusing the procedure.”

Taking note of the above, the Court granted bail to the petitioner.

Case Title: Sanjeev Kumar v. State of Bihar.

Case No.: Criminal Miscellaneous No. 20517 of 2026.

Appearance: Mr. Brajesh Verma appeared for the Petitioner. Mr. Bishweshwar Ram appeared for the State of Bihar

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