Patna High Court | Unauthorized Possession of Codeine-Based Cough Syrup Attracts NDPS Act | Bail Under Section 37 an Exception
Safiya Malik
The High Court of Judicature at Patna, Single Bench of Justice Jitendra Kumar on 27 August 2025 denied bail to a petitioner caught with forty bottles of codeine-based cough syrup, ruling that the recovery amounted to a commercial quantity under the Narcotic Drugs and Psychotropic Substances Act, 1985. The Court reaffirmed that unauthorized possession of such preparations, even with codeine content below 2.5%, falls within the NDPS framework when held in bulk. Stressing that bail under Section 37 of the Act is an exception rather than the norm, Justice Kumar observed that in NDPS cases, “negation of bail is the rule”.
According to the prosecution, SSB personnel received information about a four-wheeler transporting intoxicating medicine from India to Nepal. The vehicle, a Tata Indigo Manza bearing registration number BaE 2295, was intercepted, and a search revealed forty bottles of 100 ml each of cough syrup containing codeine phosphate and Triprolidine Hydrochloride. The petitioner, Nilendra Kumar Karan @ Nilendra, along with co-accused Giban Patal, was apprehended. A mobile phone and two SIM cards were also seized. Both were arrested, and an FIR was lodged.
The petitioner had previously applied for anticipatory bail before the Special Court, NDPS, Madhubani, which was rejected on grounds that the contraband constituted commercial quantity and witnesses supported the prosecution’s case. In the present petition, the petitioner argued that he was falsely implicated and that the seizure did not comply with Section 42 of the NDPS Act. His counsel submitted that the cough syrup contained less than 2.5% codeine per dosage unit and therefore was not punishable under the NDPS Act, citing Vibhor Rana v. Union of India, 2021 SCC OnLine All 908. It was argued that at most, the petitioner could be prosecuted under the Drugs and Cosmetics Act, 1940.
The petitioner further claimed that excluding neutral substances, the codeine content was less than commercial quantity. He stressed the absence of criminal antecedents and his custody since March 20, 2025. The State opposed the bail, submitting that even essential narcotic drugs like codeine are regulated under the NDPS Act. The State relied on Mohd. Ahsan v. Customs, 2022 SCC OnLine Del 2910 and Azhar Javad Rather v. UT of J and K, AIR OnLine 2023 J & K 270, to argue that the NDPS Act applies even to cough syrup containing codeine, and possession without authorization attracts liability.
The Court reviewed statutory provisions and judicial precedents. Referring to Section 80 of the NDPS Act, the Court recorded: “The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Drugs and Cosmetics Act, 1940 (23 of 1940) or the rules made thereunder.” The Court observed that the Drugs and Cosmetics Act regulates therapeutic drugs, while the NDPS Act is a special law intended to curb misuse of narcotics.
On essential narcotic drugs, the Court stated: “Methyl morphine (commonly known as ‘Codeine’) and Ethyl morphine and their salts (including Dionine), all dilutions and preparations except those which are compounded with one or more other ingredients and containing not more than 100 milligrammes of the drug per dosage unit and with a concentration of not more than 2.5% in undivided preparations and which have been established in therapeutic practice, has been provided in entry No. 2 of the Table.” The Court recorded that even such drugs are regulated and possession without authorization is punishable under the NDPS Act.
Relying on Hira Singh v. Union of India, the Court noted: “In case of seizure of mixture of narcotic drugs or psychotropic substances with one or more neutral substance(s), the quantity of neutral substance(s) is not to be excluded and it has to be taken into consideration along with actual content by weight of the offending drug, while determining the ‘small or commercial quantity’.” Thus, the seized cough syrup constituted commercial quantity.
The Court observed the settled principle: “Negation of bail is a rule and grant of it is an exception.” Referring to State of M.P. v. Kajad (2001) 7 SCC 673, it was recorded: “For granting the bail the court must, on the basis of the record produced before it, be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offences with which he is charged and further that he is not likely to commit any offence while on bail.”
The Court further quoted Narcotics Control Bureau v. Mohit Aggarwal (2022) 18 SCC 374: “The entire exercise that the court is expected to undertake at this stage is for the limited purpose of releasing him on bail. Thus, the focus is on the availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and he is unlikely to commit an offence under the Act while on bail.”
On the alleged violation of Section 42, the Court stated: “Whether there is adequate or substantial compliance with Section 42 of the NDPS Act or not is a question of fact to be decided in each case.” Citing Karnail Singh v. State of Haryana (2009) 8 SCC 539, the Court noted that such issues must be addressed at trial.
It stated: “In the alleged facts and circumstances of the case on hand, there are no reasonable grounds to believe that the petitioner is not guilty of the alleged offence and he is unlikely to commit an offence under the NDPS Act while on bail.”
“Considering the aforesaid facts and circumstances, the petitioner is not entitled to be enlarged on bail at this stage.” The petition was thus rejected.
Advocates Representing the Parties:
For the Petitioner: Mr. Jitendra Kumar Bharti, Advocate; Mr. Pankaj Kumar Jha, Advocate
For the Respondent (State): Mr. Upendra Kumar, APP
Case Title: Nilendra Kumar Karan @ Nilendra v. The State of Bihar
Case Number: Criminal Miscellaneous No. 54100 of 2025
Bench: Justice Jitendra Kumar
