Permitted Codeine Syrup Can Attract NDPS Act If Diverted For Intoxication: Allahabad High Court

A codeine-based cough syrup containing the permitted quantity of codeine can attract the stringent provisions of the Narcotic Drugs and Psychotropic Substances (NDPS) Act if it is diverted for intoxication instead of being used for medicinal purposes, the Allahabad High Court has held.

Court made it clear that the exemption available to permitted-codeine cough syrups is conditional on their medicinal use.

“Codeine-based cough syrup having permitted quantity of codeine...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 bench of Justice Arun Kumar Singh Deshwal observed in a common judgment passed on September 1.

Court was dealing with a batch of 77 bail applications arising from allegations of illegal storage, sale and transportation of several codeine-based cough syrups, including New Phensedyl, Eskuf, Codectus, Lykarex-T and Phencypink-T.

Court dealt with legitimate trade in such medicines and their diversion into the illicit market. A preparation containing codeine within the permissible limit is not treated as a narcotic substance as long as it is sold or transported for medicinal use. But once the same preparation is stocked, sold or transported for intoxication, the statutory exemption ceases to apply, court clarified.

Court also clarified that a routine sale of such cough syrup by a retailer without a prescription would ordinarily constitute a violation under the Drugs and Cosmetics Act and would not, by itself, attract the NDPS Act. However, court said that where a “huge quantity” is sold within a “very short span of time”, the circumstances may indicate that the seller knew the medicines were being diverted for non-medical use.

One of the bail pleas was filed by one Bhola Prasad, proprietor of Saili Traders in Ranchi, which was licensed under the Drugs and Cosmetics Act as a super stockist. According to the material considered by the court, the firm sold 3,66,000 bottles of New Phensedyl to Maa Kripa Medical, Sonbhadra, and another 3,87,000 bottles to Shivichha Pharma, taking the total to 7,53,000 bottles. Each 100 ml bottle contained 10 mg of codeine phosphate.

Court noted that although the purchasing firms held drug licences, they could not produce documents showing receipt or purchase of the huge quantities. Their proprietors admitted purchasing the 7.53 lakh bottles between April 1, 2024 and August 23, 2025, while neighbours said the establishments opened only occasionally.

The investigation material further showed that the purchasers had no documents showing the stock or its subsequent sale. Court took note of large cash deposits by persons having no apparent connection with the medicine trade, landlords denying receipt or unloading of the consignments, and transporters whose names appeared in e-way bills denying that they had transported the medicines to Sonbhadra. The material instead indicated movement of the stock from Ranchi towards Varanasi and Dhanbad, with consignments later recovered in Purnia during alleged illegal transportation.

Court also considered evidence suggesting that one consignment was received on the instructions of the applicant for onward transportation to Bangladesh for intoxication. Blank signed cheques belonging to the purchaser firms were also recovered, adding to the material relied upon by the prosecution.

In another case, DSA Pharma was found to have purchased 59,707 bottles from Saili Traders without corresponding purchase, stock or sale records. The e-way bills showed consignments purportedly being sent to nine firms, but the vehicles mentioned included three-wheelers, school buses and ambulances. The same batch was subsequently recovered in Tripura and West Bengal during alleged trafficking for intoxication. The court found prima facie material indicating the use of fake firms and forged invoices in the alleged conspiracy.

The high court also relied on the Supreme Court's judgment in Hira Singh v Union of India (2020) to hold that the entire mixture of the syrup has to be taken into account for determining quantity. Thus, where the total cough-syrup preparation exceeds one kilogram, it would fall within commercial quantity, bringing the Section 37, NDPS Act restrictions on bail into play.

At the same time, the high court cautioned against treating every irregularity in the sale of codeine cough syrups as an NDPS offence. It said that at the stage of regular bail, courts should not undertake a meticulous examination of commercial transactions or record definitive findings, particularly where business arrangements involve multiple layers or entities that may distance the principal actors from the physical recovery.

Keeping this in view, court granted bail to drivers, helpers and some retailers where the material did not show that they knowingly participated in diverting the medicines for non-medical use. For instance, in the case of Ultra Fine Chemicals, court found that merely showing 21,000 bottles of Phencypink-T as sold to 65 retailers, followed by the retailers' refusal to acknowledge the purchases, was not sufficient by itself to establish an NDPS offence. 

Court also expressed concern over the manner in which some NDPS cases had been initiated. It noted with anguish that the Drug Department had, in some instances, lodged NDPS FIRs for what were essentially small licensing violations under the Drugs and Cosmetics Act, with incomplete or unnecessary facts.

Court directed the Commissioner, Food Safety and Drug Administration, Uttar Pradesh, to apprise Drug Inspectors of the correct procedure for lodging FIRs.

Case Title: Bhola Prasad & Connected Matters v. State of U.P.

Order Date: September 1, 2026

Bench: Justice Arun Kumar Singh Deshwal