Truck Owner Cannot Escape NDPS Liability for Codeine Syrup Haul, Patna High Court Rules

Patna High Court rejects anticipatory bail for a truck owner whose vehicle carried 3,200 bottles of Eskuf Codeine Syrup, holding that the NDPS Act controls possession of codeine preparations regardless of concentration, and that the twin conditions under Section 37 were not satisfied.

The High Court of Judicature at Patna has rejected the anticipatory bail application of Ravi Kumar Prajapati, a Lucknow-based truck owner whose vehicle was intercepted at the Balthari Check-Post in Gopalganj on 24 June 2023 carrying 3,200 bottles of Eskuf Codeine Syrup. Justice Jitendra Kumar, sitting singly, held that cough syrup containing codeine — even at a concentration below 2.5 per cent — is regulated under the Narcotic Drugs and Psychotropic Substances Act, 1985, and that unauthorised possession of such a preparation attracts prosecution under the NDPS Act rather than the Drugs and Cosmetics Act, 1940. With the seized quantity constituting a commercial quantity once neutral substances are counted, the stringent bail bar under Section 37 of the NDPS Act applied, and the petitioner failed to clear it.

The Seizure and the FIR

On 24 June 2023, a Sub-Inspector of the Excise Department at Balthari Check-Post, Gopalganj, detained Truck No. UP32SN-3730. The search yielded 3,200 bottles of Eskuf Codeine Syrup (100 ml each), six tins of liquid solution (30 litres each), 18 pages of documents, the driver's licence, one mobile phone, and cash of Rs. 3,500. Seventeen bottles of the syrup were sent to a laboratory for analysis.

The driver, Rakesh Kumar Yadav, was arrested on the spot. Kuchaikote P.S. Case No. 316 of 2023 was registered against him for offences under Sections 27(b)(2), 27(d) and 28 of the Drugs and Cosmetics Act, 2008 and Section 22 of the NDPS Act, 1985. The petitioner, Ravi Kumar Prajapati, was not named in the FIR at that stage.

Charge-sheet No. 478/2023 was filed on 18 September 2023. In his confessional statement recorded in the case diary, driver Rakesh Kumar Yadav named Prajapati as the owner of the truck and stated that Prajapati had handed the truck to him already loaded with the seized goods. On that basis, the petitioner's name entered the investigation.

Sessions Court Rejection and the Move to Patna High Court

Before approaching the High Court, Prajapati filed Anticipatory Bail Petition No. 2189 of 2024 before the Sessions Court, Gopalganj. The Additional District and Sessions Judge-III rejected it. The Sessions Court noted that the cough syrups recovered had been prohibited by the Government vide a notification published in the Gazette of India on 2 June 2023 — more than three weeks before the recovery on 24 June 2023. It also noted that the driver's confessional statement directly implicated Prajapati as the person who had loaded the truck with the seized goods. The Sessions Court found no grounds to grant anticipatory bail and rejected the petition.

Prajapati then filed Criminal Miscellaneous No. 32844 of 2025 before the Patna High Court under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

Arguments Before the High Court

Counsel for the petitioner, Mr. Brajesh Kumar Singh, advanced four main arguments. First, Prajapati is merely the registered owner of the truck; he had given it on hire to a transporter, Countrywide Logistics, and the consignment was from S.B. Pharma, Lucknow to M/S J.N. Enterprises. Second, the alleged contraband is not a narcotic drug or psychotropic substance under the NDPS Act because it contains less than 2.5 per cent codeine and is therefore an essential drug, at most attracting prosecution under the Drugs and Cosmetics Act, 1940. Third, the mandatory provisions of Section 42 of the NDPS Act were not complied with at the time of search and seizure. Fourth, the petitioner has no criminal antecedents and was not named in the FIR.

In support of the second argument, counsel relied on Vibhor Rana v. Union of India, 2021 SCC OnLine All 908, in which the Allahabad High Court had held that a cough syrup containing codeine at a concentration of not more than 2.5 per cent, compounded with one or more other ingredients, is not a “manufactured drug” and therefore falls outside the prohibition in Section 8 of the NDPS Act.

The Additional Public Prosecutor, Mr. Upendra Kumar, countered on each point. The petitioner could produce no consignment note showing that the truck was carrying goods from S.B. Pharma to M/S J.N. Enterprises. Even if a transporter was using the vehicle, the owner cannot escape criminal liability when the vehicle is used to commit an NDPS offence. On the codeine question, the APP relied on Mohd. Ahsan v. Customs, 2022 SCC OnLine Del 2910, and Azhar Javad Rather v. UT of J&K, AIR OnLine 2023 J&K 270, both of which had held that the NDPS Act and its Rules apply to codeine preparations even below the 2.5 per cent threshold. The APP also relied on Hira Singh v. Union of India, (2020) 20 SCC 272, for the proposition that neutral substances must be counted when determining whether a seizure constitutes a commercial quantity, which would engage the rigours of Section 37.

The Court's Reasoning on NDPS Applicability to Codeine Syrup

Justice Jitendra Kumar began by setting out the statutory architecture. Section 80 of the NDPS Act expressly states that the Act operates in addition to, and not in derogation of, the Drugs and Cosmetics Act, 1940. The two statutes serve different purposes: the Drugs and Cosmetics Act addresses therapeutic standards and adulteration, while the NDPS Act controls and regulates narcotic drugs and psychotropic substances to curb their use for intoxication or stimulant effect.

The Court then turned to Section 8 of the NDPS Act, which prohibits possession, transport, sale, purchase and related operations in respect of narcotic drugs and psychotropic substances except for medical or scientific purposes and in the manner provided by the Act, rules or orders made thereunder. Section 9 empowers the Central Government to permit, control and regulate such operations, including — after the 2014 amendment — the manufacture, possession, transport, sale, purchase, consumption and use of essential narcotic drugs.

In exercise of powers under Section 9 read with Section 76 of the NDPS Act, the Central Government framed the NDPS Rules, 1985. In 2015, Chapter VA was added to those Rules, containing Rules 52A to 52M, which deal specifically with essential narcotic drugs. Rule 52A(3) lists essential narcotic drugs in a table. Entry No. 2 of that table covers methyl morphine (codeine) and ethyl morphine and their salts, including all dilutions and preparations, with an exception for preparations compounded with one or more other ingredients containing not more than 100 milligrams per dosage unit and with a concentration of not more than 2.5 per cent in undivided preparations established in therapeutic practice. Rule 52A(1) prohibits possession of any essential narcotic drug otherwise than in accordance with the Rules, and Rule 52A(2) limits the quantity that may be possessed.

The Court held that this regulatory framework means that even a codeine preparation below the 2.5 per cent threshold is controlled under the NDPS Act and its Rules. Unauthorised possession — without a licence or permit from the Controller of Drugs — is punishable under the NDPS Act, not merely under the Drugs and Cosmetics Act, 1940. Sections 21 and 22 read with Section 8 of the NDPS Act therefore applied to the facts of this case.

The Court distinguished Vibhor Rana on a specific ground: the Allahabad High Court had not been shown Section 9 of the NDPS Act or Chapter VA of the NDPS Rules, 1985. Because those provisions were not placed before it, the Allahabad High Court reached a different conclusion. The Patna High Court found the reasoning in Mohd. Ahsan (Delhi High Court) and Azhar Javad Rather (Jammu & Kashmir High Court) more persuasive, as both had considered Section 9 and the Rules.

The Court also drew support from Union of India v. Sanjeev V. Deshpande, (2014) 13 SCC 1, in which the Supreme Court had held that dealing in narcotic drugs and psychotropic substances for medical purposes does not by itself lift the embargo under Section 8(c); such dealing must also be in the manner and extent provided by the Act, Rules or orders made thereunder.

Commercial Quantity and the Section 37 Bar

The Court then addressed whether the seized quantity constituted a commercial quantity, which would trigger the stringent bail conditions under Section 37 of the NDPS Act.

The Central Government's notification dated 19 October 2001 specifies small and commercial quantities for narcotic drugs and psychotropic substances. On 18 November 2009, Note 4 was added to that notification, requiring that the quantity of neutral substances in any mixture or preparation be taken into account when determining whether a seizure is of small or commercial quantity. This addition followed the Supreme Court's decision in E. Micheal Raj v. Narcotic Control Bureau, (2008) 5 SCC 161, which had held that only the content of the narcotic drug itself should be weighed. Note 4 reversed that position legislatively.

The validity of Note 4 was upheld by a Full Bench of the Supreme Court in Hira Singh v. Union of India, (2020) 20 SCC 272. The Supreme Court held that when a narcotic drug or psychotropic substance is seized mixed with neutral substances, the quantity of the neutral substances is not to be excluded; it must be counted along with the actual content of the offending drug when determining small or commercial quantity.

Applying Note 4 and Hira Singh to the 3,200 bottles of Eskuf Codeine Syrup, the Court found that the total weight of the seized preparation — codeine content plus neutral substances — constituted a commercial quantity. Section 37 of the NDPS Act therefore applied.

Under Section 37, where a commercial quantity is involved, bail may be granted only if the Public Prosecutor has been heard and the court is satisfied of two cumulative conditions: first, that there are reasonable grounds for believing the accused is not guilty of the alleged offence; and second, that the accused is not likely to commit any offence while on bail. The Court cited State of M.P. v. Kajad, (2001) 7 SCC 673, Narcotics Control Bureau v. Mohit Aggarwal, (2022) 18 SCC 374, and Narcotics Control Bureau v. Kashif, (2024) 11 SCC 372, all of which reiterate that negation of bail is the rule and its grant an exception under Section 37, and that the two conditions are cumulative, not alternative.

On the facts, the Court found no reasonable grounds to believe that Prajapati was not guilty of the alleged offence. The driver's confessional statement placed Prajapati as the person who had loaded the truck with the seized goods. The petitioner offered no consignment note or documentary evidence to support his claim that the truck was carrying a legitimate consignment from S.B. Pharma to M/S J.N. Enterprises. Critically, there was no claim that Prajapati held any authorisation, licence or permit to possess codeine syrup in the quantity recovered.

Section 42 Compliance: A Trial Issue, Not a Bail Issue

The petitioner's argument that Section 42 of the NDPS Act — which governs powers of entry, search, seizure and arrest — had not been complied with was addressed briefly. The Court relied on Karnail Singh v. State of Haryana, (2009) 8 SCC 539, Union of India v. Mohd. Nawab Khan, AIR 2021 SC 4476, and Buta Singh v. State of Haryana, AIR 2021 SC 1913, all of which hold that whether there has been adequate or substantial compliance with Section 42 is a question of fact to be decided in each case at trial. The Court held that this argument was not available to the petitioner in bail proceedings and would have to be agitated during trial.

Outcome

Justice Jitendra Kumar rejected Criminal Miscellaneous No. 32844 of 2025. The anticipatory bail application of Ravi Kumar Prajapati was dismissed. The order was pronounced on 23 June 2026 and uploaded on 24 June 2026.