Patna HC Denies Bail in Codeine Syrup Case: Possession Below 2.5% Still NDPS Offence

Justice Jitendra Kumar observed that possession of codeine syrup, even with a concentration below 2.5%, is regulated under the NDPS Act and falls outside the purview of the Drugs and Cosmetics Act, 1940. The court invoked Section 37 of the NDPS Act, which mandates stringent measures for commercial quantities, and denied bail.

The case arose from an FIR regarding the alleged unauthorized transportation of codeine syrup across the border.

Nilendra Kumar Karan Nilendra and another accused were apprehended in Harlakhi, Madhubani, after authorities intercepted a vehicle carrying forty 100 ml bottles of codeine phosphate Triprolidine Hydrochloride cough syrup. The FIR was registered under Sections 20 and 22 of the NDPS Act. Earlier, the NDPS Special Court at Madhubani had rejected anticipatory bail, citing that the seized quantity constituted a commercial amount.

The petitioner’s counsel argued that Nilendra Kumar Karan Nilendra was innocent and wrongly implicated. He claimed non-compliance with mandatory Section 42 of the NDPS Act relating to search and seizure procedure, and further insisted that the recovered cough syrup contained less than 2.5% codeine, making it an “essential drug” only covered under the Drugs and Cosmetics Act, not the NDPS Act. The petitioner relied on the Allahabad High Court’s Vibhor Rana case for this assertion and claimed he had no criminal antecedents and had been in custody since March 2025 without fault.

The State, through its Additional Public Prosecutor, countered that the quantity of cough syrup seized constituted a commercial quantity of narcotic drugs as per NDPS rules, triggering the “rigors of Section 37” of the Act. The State cited judicial precedents stating that codeine-based cough syrups, even when categorized as “essential drugs,” remain regulated under the NDPS Act. The prosecution asserted that it was not the petitioner’s case that he held a license or permit for possession of the seized cough syrup in such a large quantity.

The court undertook a detailed analysis of the statutory provisions and relevant case law. It observed;

“Even the cough syrup containing codeine with concentration of less than 2.5% of total preparation is controlled and regulated for its possession, sale, purchase, transport, export, import etc... Hence, violation of such Rules... is punishable under the NDPS Act... if someone is found to be in possession of such drugs without authorization, he is liable to be prosecuted under the NDPS Act and not under the Drugs and Cosmetic Act, 1940.”

The court explicitly rejected the petitioner's defense, distinguishing the Vibhor Rana case on grounds that it had not considered relevant rules and central notifications.

Further, the court addressed the scope of Section 37 of the NDPS Act, reiterating settled law that for offences involving commercial quantity, bail is an exception and not the rule. Referring to Supreme Court precedents, the court noted;

“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.”

The court also addressed the argument of alleged procedural lapses under Section 42, noting that complaints on non-compliance “can be decided during the trial only and is not available to the petitioner in a Bail proceeding.”

The High Court denied the bail application, summarizing its conclusion as follows;

“Considering the aforesaid facts and circumstances, the petitioner is not entitled to be enlarged on bail at this stage.”

Subsequently, the court held;

“Here, negation of bail is a rule and grant of it is an exception. The present petition stands rejected.”

To view the official order, click the link below: