Cough Syrup Containing Codeine Within Permissible Limits Does Not Attract NDPS Act: Bombay High Court Quashes Criminal Case Against Pharmacist

“FIR By Police Under Drugs And Cosmetics Act Is Procedurally Illegal – Codeine-Based Syrups Within Permissible Limits Cannot Lead To NDPS Prosecution”, Bombay High Court (Aurangabad Bench) comprising Justice Vibha Kankanwadi and Justice Rohit W. Joshi (Division Bench) delivered a reportable judgment in Rupesh Pradip Bharuka vs. State of Maharashtra & Others, setting aside the FIR and proceedings in Special Case No. 357/2020 registered under the NDPS Act, the Drugs and Cosmetics Act, and the Indian Penal Code (IPC).

The Court emphatically held,
“When the seized substance, i.e., codeine-based cough syrup, is found to be within the prescribed medicinal limits, prosecution under Section 22(A) of the NDPS Act cannot be sustained.”

It further observed,
“The FIR registered under the Drugs and Cosmetics Act by the police, bypassing the statutory requirement under Section 32 of the Act, is patently illegal. The proceeding is an abuse of the process of law.”

FIR Over Cough Syrup Seizure Leads To Criminal Prosecution

The FIR was lodged on 24th April 2020 with City Chowk Police Station, Aurangabad, based on a raid against a co-accused, Shaikh Atiq Shaikh Abdullah, who was allegedly found in possession of 1800 Alprazolam tablets.

On interrogation, the co-accused claimed to have sourced the medicines from the petitioner, Rupesh Pradip Bharuka, a licensed medical shop owner. Subsequently, a raid was conducted on the petitioner’s shop on 27th April 2020, leading to the seizure of 53 bottles (100 ml each) of cough syrup containing chlorpheniramine maleate and codeine phosphate.

It was further alleged that batch numbers and MRP labels were erased from 30 bottles, triggering offences under the IPC, the Drugs and Cosmetics Act, and the NDPS Act.

“Possession Of Cough Syrup Within Permissible Codeine Limits Cannot Attract NDPS Offence”: Court's Key Finding

The Court heavily relied upon the Government Analyst’s report dated 8th June 2020, which explicitly stated:
“The contents of chlorpheniramine maleate and codeine phosphate are within the permissible limit.”

Rejecting the prosecution’s reliance on the Hira Singh v. Union of India (AIR 2020 SC 3255) judgment, the Court clarified,
“The principle in Hira Singh applies to mixtures where narcotic drugs are mixed with neutral substances. In the present case, there is no allegation of any neutral substance being mixed with codeine syrup. Codeine, if within the therapeutic limit, is not a prohibited substance.”

The Court reiterated,
“Merely because codeine is a scheduled psychotropic substance under the NDPS Act does not mean that its medicinal formulations automatically attract criminal prosecution when within permissible limits.”

“FIR By Police Under Drugs And Cosmetics Act Is Not Maintainable”: Court On Clear Procedural Violation

The Court invoked the binding precedent of Union of India v. Ashok Kumar Sharma (AIR 2020 SC 5274), stating,
“It is settled law that the police have no authority to register an FIR under the Drugs and Cosmetics Act. The statute mandates that prosecution must be initiated via a complaint by a Drug Inspector under Section 32 of the Act.”

The Court added,
“The inclusion of IPC or NDPS offences does not override the statutory bar under Section 32. Mixing IPC offences with Drugs and Cosmetics Act offences does not cure the illegality of the FIR.”

“Mens Rea For Section 328 IPC Completely Missing – Scratches On Labels Do Not Prove Offence”: Court On IPC Charges

Examining the IPC offences, the Court categorically held,
“To invoke Section 328 IPC, there must be a clear mens rea — an intention to cause hurt by means of poison or stupefying substances. Such intention is completely absent when the petitioner, a medical shop owner, keeps cough syrup meant for legitimate sale.”

On Section 276 IPC, the Court stated,
“This offence is attracted only when a drug is sold as a different drug. Scratches on the batch number or MRP label cannot be equated with selling a drug under a false name. The essential ingredients are not satisfied.”

“No Link Between Seized Tablets And Petitioner – Two Unconnected Incidents Falsely Clubbed”: Court Strongly Criticizes Investigation

The Court was scathing in its remarks about the investigation:
“The seizure of 1800 Alprazolam tablets from co-accused Shaikh Atiq has no evidentiary connection to the petitioner. The only material is the uncorroborated statement of the co-accused, which is wholly insufficient in law.”

The Court added,
“It was sheer negligence on the part of the Investigating Officer to mix two entirely distinct incidents — one involving the seizure of tablets and the other cough syrup — and wrongly make the petitioner a co-accused.”

 “Asking The Petitioner To Face Trial Would Be An Abuse Of Process” – Court Invokes Section 482 CrPC To Quash Proceedings

Summing up, the Court held,
“Taking into consideration all these aspects, none of the offences can be said to be getting attracted against the petitioner. It would be an abuse of process of law if the petitioner is asked to face the trial.”

Invoking its inherent powers under Section 482 of the CrPC, the Court passed the following order: “The proceedings in Special Case No.357/2020 pending before learned Special Judge, Aurangabad, arising out of FIR No. 211/2020 dated 24.04.2020 registered with City Chowk Police Station stand quashed and set aside as against the petitioner Rupesh Pradip Bharuka.”

Date of Decision: 12 June 2025