The Allahabad High Court has held that codeine-based cough syrups containing codeine within the permitted limits will not attract the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) when sold, transported or stocked for genuine medicinal use. However, the exemption will not apply where such preparations are diverted for intoxication or other non-medical purposes.
Justice Arun Kumar Singh Deshwal passed the ruling while disposing of multiple bail applications involving cough syrups including New Phensedyl, Eskuf, Codectus, Lykarex-T, Phencypink-T and Rexley-T. The Court considered whether permitted-quantity codeine preparations could attract the NDPS Act merely because they were dealt with in violation of conditions attached to drug licences.
Referring to the Central Government notifications governing codeine preparations, the Court held that permitted-quantity cough syrup remains outside the NDPS Act when dealt with for medicinal use. However, where the same preparation is stocked, sold or transported for purposes such as intoxication, it would be treated as a codeine preparation under the NDPS framework and attract the Act.
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The Court also relied on the Supreme Court’s ruling in Hira Singh v. Union of India, (2020) 20 SCC 272, to hold that the entire weight of the mixture or preparation must be considered for determining the quantity of the narcotic drug. Where the total quantity of the cough syrup exceeds one kilogram, the commercial-quantity threshold and Section 37 restrictions under the NDPS Act would become relevant.
At the same time, the Court clarified that every violation of drug-licence conditions would not automatically constitute an NDPS offence. In one case, the recovery of 869 bottles of codeine cough syrup from a licensed drug dealer was held insufficient, by itself, to attract the NDPS Act.
The Court, however, denied bail in cases where the material prima facie indicated systematic diversion of large quantities for intoxication, including cases involving 59,707 bottles of New Phensedyl and 48,447 bottles of Lykarex-T.
The Court also expressed concern over the Drug Department’s practice of registering NDPS FIRs even in cases involving comparatively minor drug-licence violations. It directed the Commissioner of Food Safety and Drug Administration, Uttar Pradesh, to examine the issue and apprise Drug Inspectors of the correct procedure for lodging FIRs.
