The Patna High Court has raised concerns over the frequent use of the Narcotic Drugs and Psychotropic Substances (NDPS) Act in cases involving codeine-based cough syrups, observing that police are invoking the stringent law even when the preparations fall within limits exempted by the Central government.
Justice Ashok Kumar Pandey said such cases should ordinarily be dealt with under the Drugs and Cosmetics Act when the codeine content and other conditions meet the prescribed exemption criteria. The Court described the repeated invocation of the NDPS Act in these circumstances as a misuse of legal procedure.
The observations came while hearing the bail application of Bharat Kumar, who was arrested in May 2026 after 484 litres of codeine-based cough syrup were seized from a pickup van in Bihar’s Khagaria district.
Kumar claimed he was merely standing near the vehicle and had no connection with either the van or the seized material. His defence also pointed out that nothing had been recovered directly from him, he had no criminal antecedents, and another accused in a similar position had already secured bail.
A key part of the argument concerned a Central government notification dated November 14, 1985, which excludes certain codeine preparations from the definition of manufactured drugs under the NDPS Act, provided they satisfy specified conditions. These include a maximum of 100 milligrams of codeine per dosage unit and a concentration not exceeding 2.5 per cent, along with requirements relating to their recognised therapeutic use.
Court questions the routine use of the NDPS Act
The State opposed the bail plea, relying on the Supreme Court’s ruling in Hira Singh v. Union of India. The judgment holds that the total weight of a mixture containing a narcotic substance must be considered when determining the applicable quantity under the NDPS Act.
The distinction is significant because Section 37 imposes stringent conditions for granting bail in cases involving commercial quantities. Courts must have reasonable grounds to believe that the accused is not guilty and is unlikely to commit another offence while on bail.
However, Justice Pandey observed that the commercial-quantity question would not arise in the first place if the seized preparation did not qualify as a narcotic drug under the applicable legal framework.
The defence maintained that the cough syrup recovered in Kumar’s case contained less than 2.5 per cent codeine, bringing it within the exemption claimed under the Central government’s notification. On that basis, it argued that the matter fell under the Drugs and Cosmetics Act rather than the NDPS Act.
Bail granted after examining the exemption argument
The Court accepted the bail plea and released Kumar on bail. In its order dated October 1, it returned to what it considered a troubling pattern in the handling of such seizures.
Justice Pandey noted that police frequently register NDPS cases involving codeine cough syrup despite the Central government’s notification providing an exemption for qualifying preparations. Where the concentration remains below the prescribed threshold and the other conditions are satisfied, the substance may fall outside the category of contraband under the NDPS Act.
The ruling underscores the importance of examining the composition of seized cough syrup and the applicable notification before invoking the stringent provisions of narcotics law. It also highlights the distinction between regulatory violations involving pharmaceutical products and offences that genuinely fall within the scope of the NDPS Act.