The Allahabad High Court recently delivered a significant judgment asserting that the misuse of codeine-based cough syrup, even when within permissible codeine concentration limits, invokes the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. This ruling comes in the case Bhola Prasad v. State of U.P., with Justice Arun Kumar Singh Deshwal presiding over the matter.
Justice Deshwal delineated that the exemption for codeine preparations under Entry 35 of the Central Government Notification dated November 14, 1985, is strictly applicable only if these preparations are utilized for genuine therapeutic purposes. Once the syrup is diverted to illicit channels for substance abuse, it loses this exemption and must be classified as a “manufactured drug” under Section 2(xi) of the NDPS Act.
“Any codeine-based cough syrup, even if it contains a permissible quantity of codeine and is intended as a cough suppressant, will be treated as a codeine preparation under the ‘Manufactured drug’ category if it is stocked, sold, or transported for non-medicinal uses such as intoxication. This position aligns with the Supreme Court’s decision in Hira Singh vs Union of India,” the Court articulated.
The High Court invoked the Supreme Court’s landmark ruling in Hira Singh vs Union of India to emphasize that in cases involving the trafficking of narcotic mixtures, the entire weight of the formulation, rather than just the pure codeine content, should be considered when determining commercial quantities.
“Should the total quantity of codeine recovered in the form of cough syrup exceed 1 kg, which is classified as a commercial quantity under the NDPS Act, the stringent provisions of Section 37 would be triggered,” the Court elaborated.
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Addressing the argument that licensed stockists and dealers could only be prosecuted under the Drugs and Cosmetics Act, 1940, the Court clarified that Section 80 of the NDPS Act supplements, rather than supersedes, general drug regulations. However, the Court distinguished between organized trafficking networks and minor regulatory lapses by retail chemists.
“If a medical store sells codeine-based cough syrup without a prescription, it constitutes a violation of the Drugs and Cosmetics Act. However, if substantial quantities are sold within a short period, indicating retailer awareness of its misuse, the NDPS Act applies,” Justice Deshwal stated.
The High Court criticized the indiscriminate filing of FIRs under the NDPS Act for minor non-compliances by drug inspectors. It directed the Commissioner of Food Safety and Drug Administration (FSDA), Uttar Pradesh, to establish guidelines ensuring proper legal evaluation.
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The Court’s observations were made while delivering a common judgment on several bail petitions filed by 63 accused under the NDPS Act, including transporters and retailers involved in procedural lapses. Bail was denied to 14 key figures linked to organized trafficking networks, identified through investigative records, financial transactions, and geographical traceability reports. Among those denied bail was super-stockist Bhola Prasad of Saili Traders, implicated in diverting over 7.5 lakh bottles of cough syrup through fictitious entities.
Senior Advocates GS Chaturvedi, Nipun Singh, Sushil Shukla, Amit Krishna, Udai Karan Saxena, Manish Tiwary, Gaurav Kakkar, Amit Daga, V P Srivastava, and instructing advocates represented the petitioners, while Senior Advocate and Additional Advocate General Anoop Trivedi, alongside Additional Government Advocates Paritosh Kumar Malviya, Chandan Agrawal, Nitesh Kumar Srivastava, Ranjit Kumar Sagar, and State Law Officer Rakesh Kumar Soni appeared for the State of Uttar Pradesh.
