Diverting Codeine Cough Syrup for Intoxication Attracts NDPS Act Even Within Permissible Limits: Allahabad High Court
The Allahabad High Court has ruled that codeine-based cough syrup can attract the provisions of the Narcotic Drugs and Psychotropic Substances (NDPS) Act even when its codeine concentration is within the ordinarily permissible limit, if the medicine is diverted from legitimate therapeutic use for intoxication. The ruling was delivered by Justice Arun Kumar Singh Deshwal in Bhola Prasad v. State of U.P. on September 1, 2026.
The Court held that the exemption available to certain codeine preparations under Entry 35 of the Central Government notification dated November 14, 1985, is conditional. The exemption applies when the preparation is used for genuine therapeutic purposes; it cannot be relied upon when pharmaceutical stocks are deliberately diverted into illicit channels for substance abuse.
According to the Court, once a codeine-based cough syrup is stocked, transported or sold for intoxication rather than medicinal use, it can be treated as a “manufactured drug” under the NDPS Act. The fact that the formulation contains codeine below the prescribed concentration does not, by itself, provide protection against NDPS prosecution when the therapeutic-use condition has been violated.
The judgment is particularly significant because the Court distinguished between the composition of the medicine and the purpose for which it is being handled. A formulation that ordinarily falls within the statutory exemption because of its permitted codeine content may lose that protection when evidence establishes that it was diverted for non-medical consumption.
The Court also relied on the Supreme Court’s ruling in Hira Singh v. Union of India while addressing the question of quantity. Where an illicitly trafficked codeine preparation is involved, the entire mixture can be relevant for determining the quantity under the NDPS framework rather than merely calculating the pure codeine component.
The distinction becomes especially important at the commercial-quantity stage. The High Court said that if the total quantity of the cough syrup recovered exceeds 1 kilogram, the commercial-quantity provisions and the stringent bail restrictions under Section 37 of the NDPS Act may be attracted.
At the same time, the Court did not hold that every sale of codeine cough syrup automatically becomes an NDPS offence. It specifically distinguished legitimate pharmaceutical activity from organised diversion. A routine sale by a medical retailer without a prescription may ordinarily constitute a violation under the Drugs and Cosmetics Act rather than the NDPS Act, unless the circumstances and quantity indicate that the seller knew the medicine was being supplied for non-medical use.
The Court therefore cautioned against mechanically invoking the NDPS Act for minor regulatory violations by chemists and drug retailers. It directed the Uttar Pradesh Commissioner of Food Safety and Drug Administration to formulate administrative guidelines so that NDPS cases are not registered merely because of trivial pharmaceutical-regulatory lapses.
The ruling arose from a batch of bail applications involving alleged large-scale diversion of codeine cough syrup. The Court rejected the pleas of several alleged principal actors and super-stockists where investigative material, including financial transactions, transportation records and seizures outside the intended destination, indicated organised trafficking.
The judgment thus establishes an important legal distinction: permissible codeine concentration alone does not guarantee immunity from the NDPS Act. The legitimate therapeutic purpose behind the exemption must also be maintained. Once medicinal preparations are deliberately diverted for intoxication, the statutory protection can disappear and the significantly more stringent consequences of the NDPS Act may follow.
