Misuse of NDPS Act in case of codeine cough syrup is established by the Patna High Court
The Patna High Court has lambasted police for its routine use of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, in cases where people have taken codeine-based cough syrup, which is within its legally prescribed limit set by the Central Government. Such cases could be subject to the Drugs and Cosmetics Act, 1940, instead of applying the far-reaching criminal law, the Court noted.
These were Justice Ashok Kumar Pandey’s observations in an application for bail filed by Bharat Kumar against the State of Bihar in the recovery of 484 litres of codeine-based cough syrup from a pickup van in the district of Khagaria in Bihar. The accused denied that he was involved in the seized material as he was only standing near the vehicle.
The petitioner’s advocate had taken on a Central Government notification dated November 14, 1985, which exempts some codeine preparations from the ban, under certain conditions, one of which is a limit on the amount of codeine in a preparation, and a limit on the dosage. The Court commented that the use of the NDPS Act was a regular occurrence without considering whether the drugs seized were covered under the exemption.
The Court noted that codeine-containing cough syrup is a Schedule H medicine and as such falls under the regulatory requirements, such as obtaining a license and maintaining prescribed records. It had observed that the police were “invariably misusing the procedure” as they were registering NDPS cases “in situations where the Drugs and Cosmetics Act may be applicable”.
The Court’s observations are of great importance because the NDPS Act lays down very tough punishment and provides for conditions on bail in certain cases. Certain additional restrictions are imposed on bail in section 37 for offences involving commercial quantities and other serious offences. This can result in accused individuals being unnecessarily detained and facing significant legal disadvantages if the Act is invoked incorrectly.
The decision must be seen as not a blanket immunity for people who have codeine-containing cough syrup. Applicability of the NDPS Act is dependent on the composition, dosage, therapeutic use, notifications and regulatory compliance of the preparation. Even if someone is not in possession or carrying it, it is possible that he or she could still be prosecuted under the relevant provisions of the NDPS Act.
The ruling highlights the need for evidence-based policing and taking the time to consider registering serious narcotics offences. The goal of preventing diversion of medicinal products is a valid objective of the law-enforcement, but criminal proceedings have to take place within the framework of the law.
In the end, the Court’s comments underscore a key tenet of the criminal justice system: a strong law must be enforced in accordance with its legal criteria, rather than simply for the presence of a controlled substance.
