Safiya Malik

The High Court of Allahabad, Single Bench of Justice Ashutosh Srivastava has rejected the bail plea of two accused in an alleged Codeine cough syrup diversion and trafficking case, after noting recovery of a large consignment of Codeine-based cough syrup said to be illegally diverted. The Court recorded that thousands of bottles of the cough syrup were seized from a location linked to the alleged storage and loading of the consignment and held that the applicants could not claim the benefit of the Codeine exemption notification unless its conditions were met in full. It held that exemption clauses must be strictly complied with, and that the scale of the allegedly diverted stock showed a breach of the requirement that such preparations be tied to therapeutic practice, leading to denial of bail.

The matter arose from a bail application filed by two accused seeking bail in connection with allegations under the NDPS Act and the Bharatiya Nyaya Sanhita. The prosecution case was that 119 boxes containing 11,885 bottles of CODECTUS TR cough syrup were recovered while the consignment was being loaded into a vehicle from the house of a co-accused in District Rampur. Two alleged fake Aadhaar cards were also stated to have been recovered.

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The applicants contended that one of them was a licensed proprietor of a medical agency authorized to deal in bulk medicines and that the cough syrup was ordered under valid invoices. They argued that the syrup fell within the exemption under the Government of India notification dated 14.11.1985 and did not attract the NDPS Act. It was further submitted that no chemical examination report had been obtained and that there was no violation of statutory provisions.

The State opposed the bail plea, asserting that the recovery was made from premises not covered by the licence and that the quantity seized far exceeded the permissible storage limits prescribed under a notification dated 15.08.2022.

The Court observed that “The offence alleged in the FIR is illegal diversion and trafficking of ‘Codeine Cough Syrup’.” It recorded that “Codeine is included in the definition of ‘Opium Derivatives’ under Clause (xvi) of Section 2 of the NDPS Act.” The Court further stated that “‘Opium Derivates’ have been included in the definition of manufacture drugs under Clause (xi)(a) of Section 2 of the NDPS Act.” and that “Definition of ‘Narcotic Drug’ is inclusive of all manufactured drugs as visualized under Section 2(xiv) of the NDPS Act.”

On the applicants’ reliance on the 14.11.1985 notification, the Court observed that “The contention of learned counsel for the applicant based upon the Central Government Notification dated 14.11.1985… that Codeine based Cough Syrup is not a Narcotic Drug… is misplaced.” It recorded that “A bare perusal of the Notification would reveal that ‘Codeine’ (Methyl-Morphine) and its salts all dilutions and preparations have been listed as manufactured drug at Item No. 35 of the said Notification.” The Court further observed that “an exception has been granted… subject to satisfaction of two conditions mentioned in the Notification.”

The Court stated that “The exemption provisions are required to be strictly and literally complied with and further that the conditions under which the exemption is granted is strictly adhered to.” It recorded that “a person who claims exemption or concession has to establish that he is entitled to that exemption or concession.” and that “Any violation of any condition would desentitle the claimant the exemption.” In the present case, it observed that “the possession of huge quantity of illegally diverted Codeine based Cough Syrup has been recovered and thus the condition ‘established in therapeutic practice’ is flagrantly violated denying the applicants of the exemption.”

The Court noted that “Codeine (Methyl) its salts, all dilutions and all preparations have been notified as an ‘essential narcotic drug’ under Central Government Notification dated 05.05.2015.” It further recorded, “Prima-facie, I find that the prosecution of the applicants under Sections 8/21 of NDPS Act and 318(4), 338, 336(3), 340 BNS is justified.” The Court observed that “In the light of the facts and circumstances of the present case… the rigors of Section 37 of the NDPS Act being clearly attracted… prima-facie, the involvement of the accused persons in the present case cannot be ruled out.” It also stated, “This court is unable to form an opinion at this stage that the accused persons have not committed an offence.”

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The Court directed that “Accordingly, the bail application is hereby rejected. It is clarified that the observations made regarding the bail application is limited to the decision of the bail application and any observations made herein shall not effect the trial of the case.”

Advocates Representing the Parties

For the Petitioners: Sri S. B. Singh, Advocate assisted by Sri Zafeer Ahmad, Advocate

For the Respondents: Sri Anoop Trivedi, learned Additional Advocate General assisted by Sri Paritosh Kumar Malviya, learned AGA-1 and Sri Nitesh Kumar Srivastava, learned AGA

Case Title: Abdul Qadir And Another v. State of U.P.

Neutral Citation: 2026: AHC:22681

Case Number: Criminal Misc. Bail Application No. 39486 of 2025

Bench: Justice Ashutosh Srivastava