Diverting codeine cough syrup for intoxication attracts NDPS Act even if within permissible limits: Allahabad High Court

The Allahabad High Court has ruled that possessing, transporting, or selling codeine-based cough syrup for intoxication attracts the stringent Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, even if the codeine concentration falls within permissible limits [Bhola Prasad v. State of U.P.].

Justice Arun Kumar Singh Deshwal held that the statutory exemption granted to codeine preparations under Entry 35 of the Central Government Notification dated November 14, 1985, is strictly conditional upon the formulation being handled for bona fide therapeutic purposes.

The Court clarified that the moment such medicinal preparations are diverted to illicit supply chains for substance abuse, they lose statutory immunity and must be classified as "manufactured drugs" under Section 2(xi) of the NDPS Act.

"Codeine-based cough syrup having permitted quantity of codeine, manufactured or produced as a cough suppressant, if stocked, sold or transported for other purposes (like intoxication) instead of medicinal use, would be treated as a codeine preparation under the category of Manufactured drug and would attract the provisions of the NDPS Act. The entire mixture of syrup shall be treated as codeine in view of the judgment of the Hon’ble Apex Court in Hira Singh’s case," the Court said.

Invoking the landmark Supreme Court ruling in Hira Singh vs Union of India, the High Court reiterated that in cases involving illicit trafficking of narcotic mixtures, the weight of the entire formulation, not merely the pure codeine content, must be considered to evaluate commercial quantity.

"In such cases, if the total quantity of codeine recovered in the form of codeine-based cough syrup is found to be above 1 kg, which is a commercial quantity as per the table attached to the NDPS Act, the embargo under section 37 of the NDPS Act would be attracted," the Court said.

On the argument that licensed pharmaceutical stockists and dealers could only be prosecuted under the Drugs and Cosmetics Act, 1940, the Court emphasised that Section 80 of the NDPS Act operates in addition to, and not in derogation of, general drug regulations.

The Court, however, drew a clear line between organized illicit trafficking syndicates and routine regulatory non-compliance by retail chemists.

"If any drug retailer/medical store sells codeine based cough syrup (having permitted quantity of codeine) during routine sale without medical prescription, then it would be treated as a violation of Drugs and Cosmetics Act, not the NDPS Act, unless huge quantity of such cough syrup is sold within very short span of time, which clearly indicates the knowledge of drug retailer regarding its use other than medicinal or scientific purpose."

The High Court expressed strong disapproval over the mechanical lodging of FIRs under the NDPS Act by drug inspectors for trivial non-compliances. The Court directed the Commissioner of Food Safety and Drug Administration (FSDA), Uttar Pradesh, to issue administrative guidelines to ensure proper legal vetting.

The observations were made in its common judgment delivered on a batch of bail petitions filed by 63 accused persons under NDPS Act, primarily transporters, drivers, helpers without conscious possession and retailers involved in isolated procedural lapses.

The Court denied bail to 14 primary actors, handlers and super-stockists where investigative records, bank transactions, toll-plaza traceability reports, and seizures in non-destination states (such as West Bengal, Tripura, and Bihar) revealed active involvement in organized trafficking networks.

Among the rejected pleas was that of super-stockist Bhola Prasad (Saili Traders), whose firm was linked to the diversion of over 7.5 lakh bottles of cough syrup through paper entities.

Senior Advocates GS Chaturvedi, Nipun Singh, Sushil Shukla, Amit Krishna, Udai Karan Saxena, Manish Tiwary, Gaurav Kakkar, Amit Daga, V P Srivastava along with instructing advocates appeared for the petitioners .

Senior Advocate and Additional Advocate General Anoop Trivedi assisted by Additional Government Advocates Paritosh Kumar Malviya, Chandan Agrawal, Nitesh Kumar Srivastava, Ranjit Kumar Sagar and State Law Officer Rakesh Kumar Soni for the State of UP.

[Read Judgment]