Bihar Govt's Notification (Bihar Prohibition and Excise Act, S.3) Declaring Codeine an 'Intoxicant' Upheld by Patna HC; State's Power Under Entry 8 List II Affirmed - 2025-05-20

Patna High Court Upholds Bihar Government's Power to Classify Codeine-Based Medicines as 'Intoxicants'

Patna, Bihar – May 16, 2025 – The Patna High Court, in a significant ruling, has upheld the constitutional validity of a Bihar government notification that classifies all medicines and medicinal preparations containing 'Codeine' as intoxicants under the Bihar Prohibition and Excise Act, 2016. The division bench, comprising Acting Chief Justice Ashutosh Kumar and Justice Partha Sarthy , dismissed the challenge to Notification No. 11 dated October 18, 2016, affirming the State's legislative competence.

The judgment primarily addresses Civil Writ Jurisdiction Case No. 20522 of 2021 filed by Om Logistics Limited, a transportation company. A connected Criminal Writ Jurisdiction Case No. 558 of 2021, filed by Sooryamani Prasad Pandey (presumably the truck driver or associated individual), was referred to a single judge for further hearing concerning the quashing of the FIR, with a directive to consider the absence of prescribed rules at the time of the incident.

Case Background: Seizure and Legal Challenge

Om Logistics Limited challenged the 2016 notification after one of its trucks, transporting Wiscof Cough Syrup (containing Codeine Phosphate), was seized in Madhepura, Bihar. The consignment, booked by M/s Windlas Biotech Pvt. Ltd. (manufacturer) through M/s Maa Durga Enterprises (licensed distributor in Ranchi), was intended for two licensed pharmacies in Madhepura. An FIR (Singheshwar P.S. Case No. 228 of 2020) was registered under various sections of the NDPS Act, 1985, and Section 30(a) of the Bihar Prohibition and Excise Act, 2016. Subsequently, the truck was confiscated by the Additional Collector-cum-Additional District Magistrate, Madhepura.

The petitioner sought to quash the notification, the confiscation order, and secure the release of the truck and the consignment.

Petitioner's Arguments: Legislative Overreach and Repugnancy

The petitioner, represented by Senior Advocate Mr. Jitendra Kumar Singh, argued that: 1. The notification was ultra vires Sections 26-A and 26-B of the Drugs and Cosmetics Act, 1940, and repugnant to this Central Act as well as the NDPS Act, 1985, which comprehensively regulate drugs and narcotics. 2. The State Legislature lacked legislative competence as "drugs and poisons" fall under Entry 19 of the Concurrent List, and the field is occupied by Central legislation. 3. Codeine, classified as a "manufactured drug" by the Central Government under the NDPS Act (in specific concentrations), could not be declared an "intoxicating drug" by the State, especially given the exclusion in Section 2(41)(iv) of the Bihar Prohibition and Excise Act, 2016. 4. The notification was unworkable as, at the time of the FIR, no rules had been framed under Section 95 of the Bihar Act prescribing the form and particulars for permits to transport such substances, as required by Sections 14 and 27 of the Act.

State's Defence: Public Health and Constitutional Powers

The State of Bihar, represented by Advocate General Mr. P.K. Shahi, defended the notification, contending that: 1. It was a valid exercise of power under Entry 8 of List II of the Seventh Schedule of the Constitution, which grants states exclusive power over "intoxicating liquors." 2. The notification aligns with Article 47 of the Constitution, a directive principle urging states to prohibit intoxicating drinks and drugs injurious to health. 3. The Supreme Court's nine-judge bench decision in State of U.P. Vs. Lalta Prasad Vaish (2024 SCC OnLine SC 3029) supports the State's expansive power to regulate substances that can be misused as intoxicants. 4. The notification targets the misuse and unauthorized use of codeine-based preparations, not their legitimate medicinal use by licensed entities. 5. The Bihar Prohibition and Excise Rules, 2021 (published on 27.09.2021) now provide a licensing regime.

Court's Analysis: Interpreting 'Intoxicating Liquor' and State's Powers

The High Court embarked on a detailed analysis of legislative competence, focusing on the interpretation of Entry 8 of List II ("Intoxicating liquors, that is to say, the production, manufacture, possession, transport, purchase and sale of intoxicating liquors.").

The Court highlighted the shift in judicial interpretation from Synthetics and Chemicals Ltd. v. State of U.P. (1990) , which took a narrower view of "intoxicating liquor" (limited to potable alcohol), to the more recent nine-judge bench ruling in Lalta Prasad Vaish (supra) . The Lalta Prasad Vaish judgment overruled Synthetics and held: > "g. Entry 8 of List II is based on public interest. It seeks to enhance the scope of the entry beyond potable alcohol. ... Alcohol is inherently a noxious substance that is prone to misuse affecting public health at large. Entry 8 covers alcohol that could be used noxiously to the detriment of public health. This includes alcohol such as rectified spirit, ENA and denatured spirit which are used as raw materials in the production of potable alcohol and other products." (Para 52, quoting Lalta Prasad Vaish )

The Court noted that Lalta Prasad Vaish clarified that even medicinal or industrial products could fall within the definition of intoxicants if misused for intoxication, emphasizing the effect and use of the substance, not just its chemical composition or original intent.

Applying these principles, the High Court reasoned that "Codiene is capable of being used as an intoxicant. Therein lies the justification for the State to come out with the notification which has been impugned in the present petition." (Para 74)

The Court also considered the doctrine of "pith and substance" and "occupied field," concluding that the State law, aimed at public health and morality under Entry 8 List II, was qualitatively different from Central regulations on drugs and did not suffer from repugnancy. It also touched upon the concept of "res extra commercium," suggesting that substances like intoxicants, when misused, cannot claim the protection of trade rights.

Court's Decision and Implications

The Patna High Court delivered the following key findings: > "(a) the impugned notification is a legitimate exercise of power under Entry 8 List II read with the judgment in Lalta Prasad Vaish (supra). > (b) There is no repugnancy with the Drugs and Cosmetics Act, 1940, as the State action targets the abuse and non-medicinal use of codiene based versions. > (c) The notification is in furtherance of the States’ constitutional obligation under Article 47 to prevent intoxicating substance abuse. > (d) Intoxicants and intoxicant drugs, when misused would fall in the category of res extra commercium." (Para 75)

Consequently, the Civil Writ Jurisdiction Case No. 20522 of 2021, challenging the notification and confiscation order, was disposed of, implying the challenge to the notification's validity failed.

However, regarding the Criminal Writ Jurisdiction Case No. 558 of 2021 (seeking quashing of the FIR and other reliefs related to the criminal case), the Court observed: > "However, we note that in the absence of any Rules, at the time when the criminal case was registered against the petitioner, the criminal Courts would necessarily be called upon to take it into consideration, when a prayer is made for quashing the FIR etc., to assess whether the offences charged were made out." (Para 76)

This criminal writ was referred to the roster of the learned Single Judge for hearing such matters.

This judgment reinforces the State of Bihar's authority to enact stringent measures under its prohibition law, extending to substances like codeine-based medicines if they are prone to misuse for intoxication, under the umbrella of public health. It also clarifies that while the State's legislative power is broad, procedural aspects, such as the existence of rules for permits, remain relevant considerations in individual criminal prosecutions.