Authored By: Adv Abru Iqbal
Jammu and Kashmir University
India’s legal and regulatory landscape has been undergoing rapid changes, particularly in the areas of technology, data protection, business reforms, and enforcement mechanisms. Framing one uniform law for a country as diverse as India, in terms of culture, tradition, and religion, was never going to be easy. But the Constitution has always provided that framework, giving lawmakers the authority to draft and enforce laws despite this diversity.
A lot of India’s legislation actually traces its authority back to specific constitutional provisions. One of these is Article 47, a Directive Principle that pushes the state to work towards prohibiting intoxicating drugs and substances injurious to health, many of which had been consumed traditionally for generations. It was this very article that pushed lawmakers to draft a law in 1985 to regulate harmful substances. The bill was introduced in the Lok Sabha on 23 August 1985, cleared both Houses of Parliament, received the President’s assent on 16 September 1985, and came into force on 14 November of that year. Previously, India did not have a unified drug law. It relied on old colonial-era statutes, such as the Opium Acts. The NDPS Act replaced all of that in one go, and it also helped India meet its obligations under some fairly strict United Nations drug conventions.
Nearly four decades later, the NDPS Act is still one of the harshest criminal statutes on the books. It imposes severe punishment, makes bail genuinely difficult to obtain, and places the burden of proving innocence on the accused rather than requiring the prosecution to prove guilt. And in all these years, it hasn’t stopped being one of the most argued-over, most litigated laws in the country. Here’s the thing about this law, it was written with a clear enemy in mind, the trafficker. But it’s spent forty years failing to reliably tell that trafficker apart from the person who simply got caught up in something bigger than them. Think about a district court somewhere in Kashmir, or Delhi, or Kerala. Somewhere in that courtroom, right now, there’s a young man who’s already spent two or three years in judicial custody, and his trial hasn’t even gotten past the first few witnesses. Maybe he’s guilty of something minor ,carrying a bag he didn’t fully understand, standing next to the wrong man at the wrong moment. Or maybe he’s exactly the kind of trafficker this Act was built to stop. At the point of arrest, honestly, there’s often no way to tell the two apart. And the law doesn’t really force anyone to try.
A law that trips over its own paperwork:
This might surprise people who haven’t dealt with the courts directly a lot of NDPS cases don’t actually hinge on whether the accused was dealing drugs. They hinge on whether the police filled the right form, informed the right officer, or got a magistrate into the room at the right time. Decades of procedural back-and-forth and inconsistent court rulings have, in a peculiar way, pulled the Act away from the very purpose it was meant to serve.
The law lays down very specific steps for officers must follow, In Section 41 lets certain Magistrates and Gazetted Officers issue warrants for arrest and search,Section 42 requires the officer to record and pass on information before acting,Section 43 allows seizure and arrest without a warrant in public places or during transit,Section 50 gives a person the right to be searched in front of a Gazetted Officer or Magistrate, and Section 52A covers how seized material has to be inventoried, photographed, and certified before a Magistrate. Skip even one of these steps, and the whole case can fall apart, no matter how many kilos of heroin or how many bottles of codeine were sitting right there in the evidence room. Courts have made this fairly clear recently: if samples aren’t sealed in front of a magistrate, that alone can sink the prosecution’s case. There’s a fair argument that this rigidity protects people from planted evidence and from officers cutting corners.
But there’s also something genuinely unfair about a system where a well-funded trafficker walks free because of a missing signature, while a first-time offender with no money for a good lawyer stays behind bars because nobody caught the same mistake in his file. This procedural mess bleeds directly into bail. Section 37 already makes bail hard to get in commercial-quantity cases, but courts have started granting it where the procedure itself looks shaky ,if mandatory steps were skipped, if the recovery looks doubtful, or if the whole investigation feels unreliable. In such situations, courts have said the rigours of Section 37 don’t really apply at the bail stage. Which, if you think about it, undercuts the basic idea that “Bail should be the rule and jail the exception” because in NDPS matters, it very often isn’t.
Take Rouf Ahmad Gannie v. UT of J&K (21 November 2025) Heard by single bench of Justice Sanjay Dhar. In this case, On 25 April 2023, police on Naka duty near Nassau Badra Gund Crossing in Qazigund stopped two men behaving suspiciously. A search of their bags turned up 38 bottles of Codeine , 20 with one man, Rayees Ahmad Wani, and 18 with the other, Rouf Ahmad Gannie. FIR No. 74/2023 was registered under Section 8/21 of the NDPS Act, samples went to FSL Srinagar, and eventually the investigation concluded with offences under Sections 8/21 and 29 established against both men, leading to a challan before the trial court. The defence argued that the seizure hadn’t followed the mandatory procedure under Section 52A, which is really the same argument that keeps surfacing across NDPS litigation, regardless of how any individual bail plea is decided.
Investigation loop holes or Forceful admissions:
There’s another troubling pattern worth mentioning. Someone gets arrested, and under questioning, gives up a few names. Those names alone can become the basis for arresting other people, sometimes with nothing else tying them to any drug offences at all. High Courts have picked up on this and, in some instances, have asked state governments to explain why it keeps happening, even in cases involving quantities too small to justify this kind of net.
It’s worth sitting with that for a second, a law meant to break up trafficking rings can, without proper checks, turn into something that catches people simply because their name came up once, under pressure, in someone else’s statement. The Supreme Court dealt with a version of this problem in Tofan Singh v. State of Tamil Nadu (2020), The case was decided by a 3-Judge Bench consisting of Justice Rohinton Fali Nariman, Justice Navin Sinha ,and Justice Indira Banerjee. In this case the appellant, Tofan Singh, was prosecuted under the NDPS Act primarily on basis of a confessional statement recorded under Section 67. The statement was obtained by officers empowered under Sections 42 and 53, exercising powers of search, seizure, arrest, and investigation. At trial, the prosecution relied heavily on this confession to establish guilt.
The defence challenged the admissibility of the statement, contending that the officers recording it were police officers, which within the purview of Section 25 of the Evidence Act, rendering the confession inadmissible.The trial court convicted the accused, and the conviction was upheld by the High Court, relying on prevailing precedents which treated NDPS officers as distinct from police officers. The matter reached the Supreme Court, where it was stated that confessions made to NDPS officers can’t be used as evidence, because these officers function as police officers in practice. Under Section 25 of the Evidence Act, confessions to police can’t be used in court, a rule that exists precisely to stop coercion. The Court, in a 2:1 decision, extended that same protection to NDPS officers.Thus, the case squarely raised the constitutional and evidentiary question of whether liberty could be curtailed based solely on statements made to officers wielding coercive investigative powers.
Attachment and forfeiture of property:
The 1989 amendment brought in Chapter V-A, Sections 68A to 68Z, giving the government the power to go after property built from drug money , houses, vehicles, bank accounts, businesses, even if that property has no direct link to the drugs seized in a specific case. Sounds reasonable on paper. But it runs on the same reverse-burden logic as the rest of the Act ,the person holding the property has to prove the money was earned legitimately, that the property is ancestral, or jointly owned, or otherwise untouched by any illegal source. And because property held in other people’s names can be dragged into these proceedings too, family members with no actual connection to any offence sometimes end up fighting to keep what’s rightfully theirs. The process starts with a freezing order under Section 68F. Then comes a show-cause notice under Section 68H, asking the property holder to explain how it was acquired. If the explanation doesn’t satisfy the authorities, the property gets forfeited, though there’s a right of appeal to a tribunal under Section 68-O. This isn’t a rare occurrence, either. Across district courts in nearly every state, Section 68F notices are being issued on properties without anyone first confirming whether there’s a real link to drug proceeds, or whether it’s simply an old family property that predates any alleged crime. One such matter, Irfan Ahmad Haroon v. UT of J&K (20 April 2026), ,case number NDPS /FO/585/DEL/2026 is currently before the court , and an order under Section 68F was passed by the Station House Officer at Sangam, Srinagar, targeting property believed to be built on drug money. The trial is still ongoing.
PSA ACT AND NDPS ACT:
In Jammu & Kashmir, individuals involved in narcotic offences are frequently subjected to preventive detention. While the J&K Public Safety Act (PSA), 1978, is widely used for national security and public order, narcotics-related preventive detentions are specifically governed by a dedicated central equivalent, the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances (PIT-NDPS) Act, 1988. The High Court of Jammu & Kashmir and Ladakh routinely reviews these orders under Habeas Corpus petitions. The court has established a strong, protective jurisprudence, frequently quashing detentions when authorities use the laws mechanically or bypass constitutional safeguards.
In cases like Mahavir Singh v. Divisional Commissioner, Jammu ,Case Number, Habeas Corpus Petition (HCP) No. 128/2025, Citation: 2026:JKLHC-JAM:110 Doc ID: 71701104, the Court quashed detentions because authorities vaguely cited the need to maintain “public order, peace, and tranquillity.” Justice Sanjay Dhar clarified that using generalised public order language in a narcotics detention proves that the authority was uncertain about the true legal grounds, making the order invalid.
At the end of the day, it comes down to one fairly simple question: how do you come down hard on real traffickers without coming down just as hard on people who had nothing to do with any of it? Between procedural landmines, a burden of proof that runs backwards, and forfeiture powers broad enough to catch entire families in their sweep, the NDPS Act keeps testing the very system meant to enforce it. Courts keep trying to hold the line, demanding real evidence, insisting on proper procedure, refusing to let genuine offenders slip away on technicalities. But until the law itself narrows that gap between the trafficker and the bystander, this balance is going to keep getting worked out the hard way, one bail plea, one forfeiture notice, one case at a time.
