Court Rules Cough Syrup with Less than 2.5% Codeine Concentration Not Contraband Under NDPS Act; Case Should Be Tried Under Drugs and Cosmetics Act
In a significant judgment dated October 1, 2026, the Patna High Court, presided over by Mr. Ashok Kumar Pandey, J., granted bail to Bharat Kumar, the petitioner in NDPS Special Case No. 28 of 2026, relating to the recovery of 484 liters of cough syrup containing codeine from a pick-up van. The court held that where the concentration of codeine in such syrup is below 2.5%, it does not fall within the ambit of contraband under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
The petitioner was accused under Sections 21(c), 8(c), and 29 of the NDPS Act. However, the court noted that nothing was recovered from the personal possession of Bharat Kumar; he was merely standing near the vehicle at the time of the seizure. It was further observed that the witnesses listed in the seizure report were all police personnel, and the police had not complied with Section 105 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, while making the seizure.
Importantly, the court examined Notification No. S.O. 826(E) dated November 14, 1985, issued under the NDPS Act, which exempts certain manufactured drugs containing narcotic substances up to specified limits. According to this notification, codeine preparations containing not more than 2.5% concentration in undivided preparations are not considered contraband. The cough syrup recovered in this case fell within this exemption.
The court distinguished this position from the State's reliance on the Supreme Court's decision in Hira Singh v. Union of India, where non-toxic materials mixed with contraband were counted towards commercial quantity. Here, since the syrup itself is not a narcotic drug under the NDPS Act due to the low concentration of codeine, the court found no jurisdictional basis for prosecution under the NDPS Act. Instead, such cases should be dealt with under the Drugs and Cosmetics Act, 1940.
Highlighting the police's practice of registering NDPS cases for cough syrups containing codeine with less than 2.5% concentration, the court criticized this as a misuse of procedure. The court emphasized that such cough syrups are Schedule-H drugs, requiring licensed sale and proper record-keeping but do not constitute contraband under NDPS law.
Considering the petitioner's lack of criminal antecedents and his custody since May 16, 2026, the court granted bail on furnishing a bail bond of Rs. 10,000 with two sureties of the like amount each, to the satisfaction of the learned Special Judge, NDPS Act, Khagaria.
This ruling clarifies the legal threshold for prosecution under the NDPS Act regarding codeine-containing cough syrups and underscores the importance of appropriate statutory application to prevent misuse of legal provisions.
Bottom Line:
NDPS Act - Bail - Recovery of cough syrup containing codeine - Where concentration of codeine is less than 2.5% as per Central Government notification, such preparation does not come within ambit of contraband under NDPS Act and matter may amount only to violation of Drugs and Cosmetics Act - Bail granted.
Statutory provision(s):
Narcotic Drugs and Psychotropic Substances Act, 1985 Sections 2(d), 8(c), 21(c), 29; Drugs and Cosmetics Act, 1940; Notification No. S.O. 826(E) dated 14.11.1985; Section 105 of Bharatiya Nagarik Suraksha Sanhita, 2023
Bharat Kumar v. State of Bihar, (Patna) : Law Finder Doc Id # 3000408
