Unauthorised possession of cough syrup with even 2.5% codeine can attract NDPS charges—Patna HC

HC was hearing plea of a truck owner from whose vehicle 3,200 bottles of cough syrup were recovered. He argued the syrups only had 2.5% codeine, hence, NDPS won’t apply.

Representational image | Reuters

New Delhi: Unauthorised possession of cough syrup containing even less than 2.5 percent codeine can attract the Narcotic Drugs and Psychotropic Substances Act, the Patna High Court has said, adding that unauthorised possession and transport of commercial quantities can invite prosecution under the stringent anti-narcotics law.

The court was hearing the plea of the truck owner from whose vehicle 3,200 bottles of cough syrup were recovered in June, 2023. A case was registered against him under Sections 27 (b) and (d) of the Drugs and Cosmetics Act, 1940, along with Section 28 of the NDPS Act.

These collectively penalise the selling or manufacture of drugs, deemed to be adulterated or without a valid license. Along with this, the truck owner was also booked for not disclosing the name of the medicine’s manufacturer.

In a 25-page ruling, a bench of Justice Jitendra Kumar ruled, “I find that 3,200 bottles of Eskuf Codeine Syrup has been recovered, containing codeine phosphate & Triprolidine Hydrochloride. However, it is not a case of the petitioner that he has any authorisation to possess such cough syrup in such a huge quantity.”

The court said that while the Drugs and Cosmetics Act, 1940 deals with drugs which are intended to be used for therapeutic or medical usage, the NDPS Act, is a special law which intends to curb and penalise the use of narcotic drugs which are used for intoxication or for getting stimulant effect.

One of the arguments raised by the truck owner was that cough syrup is not a narcotic drug since it contains less than 2.5 percent codeine of the total preparation. 

The court rejected this argument, saying that when the weight of the codeine is taken along with the weight of a neutral substance (like water), the weight of the seized cough syrup constitutes “commercial quantity”.–

How the case reached Patna HC

After the truck was stopped at a checkpost in Gopalganj, the police recovered more than 3,200 bottles of codeine, with each one containing 100 ml cough syrup. The police also captured the driving license of the driver, and his mobile phone.

Subsequently, the driver was arrested on the spot. A case was registered against the owner of the truck, Ravi Kumar Prajapati. He approached the court seeking anticipatory bail.

In 2024, Prajapati, the truck owner had moved the sessions court at Gopalganj, but was denied anticipatory bail since the truck driver who was arrested on the spot, confessed that he was only handed over the loaded truck for delivery by the owner. 

Denying bail to the truck owner, the sessions court had noted that the Central government, in June 2023, had come out with a Gazette notification which prohibited the sale and manufacture of the Chlorpheniramine + Codeine Phosphate + Menthol Syrup with immediate effect, flagging it as potentially risky for human use.

The sessions court noted that while the recovery of these codeine bottles was made on 24 June 2023, the Gazette notification had come out weeks before, on 2 June 2023.

Before the court, the owner of the truck claimed he was innocent, and was falsely implicated in the case. He also claimed that the police did not follow the provisions of Section 42 of the NDPS Act during entry, search, seizure and arrest without warrant or authorisation.

The court rejected this argument, saying that violation of Section 42 is a question of fact and “can be decided during the trial only”. 

Prajapati argued that he had nothing to do with the offence, as he is only the owner of the truck on hire, and was carrying a consignment for SB Pharma, Lucknow, at the time the goods were seized.

Prajapati also argued that cough syrup is not a narcotic or psychotropic substance, punishable under the NDPS Act, and that it contained less than 2.5 percent codeine of the total preparation.

In a nutshell, his case was that cough syrup is an essential drug and will not attract the rigours of the NDPS Act. Instead, the appropriate statute in this case would be the Drugs and Cosmetics Act 1940, the petitioner had argued.

In support of this, he relied on the 2021 ruling in Vibhor Rana vs Union of India, where the Allahabad High Court quashed the criminal proceedings under the NDPS Act for a seizure of Phensedyl cough syrup containing Codeine, and said that the 1940 Act would be attracted instead.

Court’s ruling

The Drugs and Cosmetics Act is intended to prevent sub-standard drugs and to maintain high standards of medical treatment and curtail the menace of adulteration of drugs and also of the production, manufacture, distribution and sale of spurious and sub-standard drugs, while the NDPS Act, intends to control and regulate the operation relating to narcotic drugs.

The court said that in the present case, the provisions of Sections 21 and 22 read with Section 8 of the NDPS Act, will be applied which lay out punishment for contravention relating to manufactured drugs, for psychotropic substances, and prohibit certain operations such as transporting or consuming drugs.

Moreover, when the weight of the codeine along with that of the neutral substance is taken into consideration, the weight of the seized cough syrup constitutes “commercial quantity”, the court said, while relying on a 2001 notification issued by the Centre. 

“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 said.

Pointing to the twin conditions laid out under Section 37 of the NDPS Act for grant of bail, the court noted that there must be reasonable grounds for the courts to believe that the accused is not guilty of the alleged offence. The other condition is that the court must be satisfied that the accused is not likely to commit any offence while out on bail. 

In this case, however, the court found that “there are no reasonable grounds to believe that the petitioner is not guilty of the alleged offence and he is unlikely to commit an offence under the NDPS Act while on bail”.

Any quantity of codeine, as long as it’s unauthorised, will attract the rigorous of NDPS, so essentially the argument of the truck owner that codeine was less than 2.5% in the cough syrups was flawed, according to lawyer Affan Anees.

This is not the first time that the court has passed such an order. In August last year, the Patna HC had passed an order in the case of Nilendra Kumar Karan, denying bail to an NDPS accused for carrying 40 bottles of codeine-based syrup to the Indo-Nepal border.

“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,” the court had said, while adding that if these provisions are violated, prosecution under the NDPS Act will follow.

(Edited by Ajeet Tiwari)