Cough Syrup with Codeine Phosphate and Neutral Substances Constitutes Commercial Quantity for NDPS Prosecution

The petitioners were arrested on 27.07.2025 following a police raid where 51 bottles of Phensigrip Cough Syrup (containing codeine phosphate) were seized from their possession—34 bottles from Petitioner No. 2 and 17 from Petitioner No. 1.

Each bottle was 100 ml.

Charges were framed under Sections 22(c) and 27 of the NDPS Act following a Charge Sheet filed on 28.09.2025.

The petitioners sought bail, arguing that the actual weight of the narcotic substance was miniscule, potentially falling below the threshold for "commercial quantity," and that the syrup followed therapeutic standards exempting it from the NDPS Act.

1. Whether the quantity of the seized contraband should be determined by the weight of the pure narcotic drug or the weight of the entire mixture.

2. Whether cough syrup containing a small percentage of codeine phosphate is exempt from the NDPS Act if intended for therapeutic use.

3. Whether the petitioners satisfied the rigors for bail under Section 37 of the NDPS Act.

Section 37 of the NDPS Act, which imposes stringent conditions for bail in cases involving commercial quantities.

The Supreme Court precedent in Hira Singh v. Union of India, which established that the weight of the entire mixture (neutral substance plus narcotic drug) must be considered when determining quantity, not just the pure drug content.

Rule 52A of the NDPS Rules, 1985 (as amended in 2014) and Note 4 of S.O. 1055(E), which classify preparations containing codeine as "essential narcotic drugs," regardless of their therapeutic value, if they exceed certain limits or are possessed in contravention of rules.

The court dismissed the petitioners’ argument that the low concentration of codeine (0.2%) exempted the substance from the NDPS Act. Referencing the Delhi High Court’s Division Bench in Mohd Ahsan v. Customs, the court noted that the 2014 amendment and the introduction of Rule 52A mean that codeine-based syrups are regulated "essential narcotic drugs."

Any possession of such drugs in contravention of the rules is punishable under the NDPS Act.

Since the total volume of the 51 bottles (5,100 ml) exceeded the 1,000 ml limit for codeine, it was classified as a "commercial quantity" based on the weight of the entire mixture as per Hira Singh.

Consequently, the court found that the "twin conditions" for bail under Section 37 were not met, as there were no reasonable grounds to believe the petitioners were not guilty.

The court concluded that since the recovery involved a commercial quantity, the bar under Section 37 of the NDPS Act applied. The bail application was rejected and dismissed.