Police misusing NDPS Act in cases involving codeine cough syrup: Patna High Court

The Patna High Court recently criticised the police for routinely registering cases under the Narcotic Drugs and Psychotropic Substances (NDPS) Act when cough syrups containing codeine are seized, despite the drug falling within the permissible concentration limits prescribed by the Central government [Bharat Kumar v. State of Bihar].

Justice Ashok Kumar Pandey termed the invocation of the stringent NDPS Act in such matters strange, adding that such cases need only be dealt with under the Drugs and Cosmetics Act.

"Cough syrup containing codeine is only a Schedule H drug for which the shopkeeper has to maintain a register and he must be a licensed one. Such types of cases should be filed under the Drugs and Cosmetics Act. It is only a violation of the Drugs and Cosmetics Act, whereas the police is invariably misusing the procedure," the Court said.

The Court made the observation while dealing with a bail plea by one Bharat Kumar. Kumar was arrested in May 2026 in an NDPS case following the recovery of 484 litres of codeine-based cough syrup from a pick-up van in Bihar's Khagaria district.

Kumar maintained that he had merely been standing near the vehicle and had no connection with either the vehicle or the seized cough syrup.

His counsel further argued that no contraband had been recovered from his possession, that he had no criminal antecedents and that a similarly placed co-accused had already been granted bail.

His counsel also invoked a Central government notification dated November 14, 1985, under which certain codeine preparations are excluded from the definition of manufactured drugs under the NDPS Act.

The exemption applies to preparations containing not more than 100 milligrams of codeine per dosage unit and a concentration not exceeding 2.5 per cent, provided other prescribed conditions, including their established therapeutic use, are satisfied.

Meanwhile, the State opposed the bail application, relying on the Supreme Court's judgment in Hira Singh v. Union of India, which held that the entire weight of a mixture containing a narcotic drug must be considered while determining whether the seized quantity of material falls within the commercial quantity threshold.

Under Section 37 of the NDPS Act, where the seized material is of commercial quantity, bail cannot be granted unless the court is satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence and that the accused is not likely to commit any offence while on bail.

The Court, however, noted that where the preparation itself does not qualify as a narcotic drug, the question of determining whether the recovered substance is of a commercial quantity or not would not arise.

In this regard, it also noted the bail applicant's argument that the cough syrup recovered in the present case contained less than 2.5 per cent codeine, meaning that its seizure attracted only the Drugs and Cosmetics Act, not the NDPS Act.

It proceeded to grant Kumar bail.

"Before parting, 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," the Court added in its October 1 order.

Advocate Vijay Kishore Bharti represented the bail applicant.

Additional Public Prosecutor Surendra Prasad Singh appeared for the State.

[Read Judgment]