The Contradiction in India's Regulatory Landscape
At a moment when the Indian government champions the Jan Vishwas Bill, 2026, designed to decriminalize minor business oversights and foster trust in enterprise, a stark contradiction emerges on the ground. While one arm of governance promotes ease of doing business and regulatory reform, another aggressively pursues criminal charges under stringent laws like the Narcotic Drugs and Psychotropic Substances (NDPS) Act and the Bharatiya Nyaya Sanhita (BNS), even against entities operating within licensed frameworks. This split personality in law enforcement threatens to replace the promised trust with suspicion, turning regulation into prosecution and undermining the very essence of Jan Vishwas.
A Dangerous Shift from Regulation to Criminalization
In recent months, a troubling trend has surfaced across multiple Indian jurisdictions: the increasing use of the NDPS Act, 1985, against licensed pharmaceutical stockists handling codeine-based cough syrups such as Corex-T, Phensedyl, Tossex, Codistar, and Ascoril-C. These syrups typically contain 10mg of codeine per 5ml dosage and are legally recognized under medical commerce frameworks. Originally intended as a weapon against drug trafficking, the NDPS Act is now being deployed against stockists engaged in lawful trade, raising fundamental concerns about the boundaries of criminal law. When regulated activities attract severe penal consequences, the line between illegality and mere irregularity blurs, risking the criminalization of what is essentially regulatory in nature.
Understanding the Statutory Framework
The NDPS Act, particularly Section 8(c), imposes a general prohibition on narcotic drug activities but includes a proviso permitting them for medical or scientific purposes under the law. This proviso is crucial for medicinal preparations like codeine-based syrups, which are regulated under the Drugs and Cosmetics Act, 1940, through licensing, storage, and documentation requirements. Violations of these conditions should not automatically trigger NDPS penalties, as Section 21 applies only when there's a clear breach of prohibition. Similarly, Section 26(d) pertains to NDPS-specific licenses, not those under the Drugs and Cosmetics Act. Thus, the legal position is clear: regulatory lapses do not equate to criminal offenses under NDPS.
Flawed Enforcement Practices
Enforcement actions often mistakenly treat large quantities of codeine syrup as evidence of criminality, ignoring the commercial realities of pharmaceutical distribution. Stockists operate at scale, requiring bulk possession for efficient supply chains. Criminal law, however, demands proof of unlawful conduct and intent (mens rea). When stock is supported by valid licenses, purchase records, and tax documentation, the presumption of illegality based solely on volume is flawed. This approach bypasses the foundational requirement of criminal intent, judging lawful conduct by speculative misuse possibilities.
Judicial Responses and Divergence
Courts have begun addressing this tension, with mixed outcomes. In the Vibhor Rana case (2022), the Allahabad High Court ruled that Phensedyl, containing 0.2% codeine, falls under an exemption and does not constitute a narcotic drug under NDPS, thus invalidating prosecutions. Similarly, the Patna High Court (2026) granted anticipatory bail, noting that codeine concentrations were within permissible limits and that infractions should be handled under the Drugs and Cosmetics Act, not NDPS. However, other rulings, such as from the Allahabad High Court in subsequent cases, have allowed NDPS investigations to proceed, citing allegations of diversion or misuse. The Supreme Court, in a recent Special Leave Petition, left the issue unresolved, granting liberty for further remedies but highlighting the ongoing uncertainty.
Misapplication of Precedents and Systemic Risks
The reliance on the Supreme Court's Directorate of Revenue Intelligence v. Raj Kumar Arora (2025) judgment adds to the confusion. That case involved precursors used in illicit drug manufacturing, not finished medicinal products like cough syrups. Applying its ratio to licensed pharma trade is a misapplication that distorts legal principles. Additionally, the use of BNS provisions alongside NDPS creates layered prosecutions, transforming regulatory disputes into severe criminal cases without solid evidence. This trend has constitutional implications, potentially violating Articles 20 and 21 by imposing arbitrary penalties and curtailing personal liberty without clear justification.
Broader Impacts and Conclusion
The consequences extend beyond individual cases, disrupting pharmaceutical supply chains, harming businesses, and creating uncertainty in the regulated sector. When compliance fails to guarantee protection, it weakens incentives for lawful operation. The law must distinguish between regulated medicine and illicit narcotics based on purpose, context, and adherence to frameworks. Regulatory lapses should be addressed within the Drugs and Cosmetics Act, not elevated to criminal offenses under NDPS or BNS. Upholding this distinction is crucial to prevent undermining the rule of law and violating fundamental rights, ensuring that Jan Vishwas does not devolve into Jan Avishwas.
