The Court clarified that a challenge to the legality of the original bail order is distinct from cancellation of bail on account of post-bail misconduct or supervening circumstances.

The Court was hearing a plea by the Union Territory of J&K under Section 439(2) read with Section 482 CrPC, challenging an order of the Special NDPS Court, Pulwama, which had granted bail to Shabir Ahmad Dar in a case involving alleged recovery of over 24 kilograms of ganja.

Justice M. A. Chowdhary observed that where a bail order is challenged for failure to comply with a mandatory statutory restriction, “the superior Court is required to examine the legality and sustainability of that order.”

In the instant case the accused was apprehended with over 24 kilograms of ganja was allegedly recovered from him. Since the notified commercial quantity of ganja is 20 kilograms, the alleged recovery fell within the commercial quantity category under the NDPS Act.

The Special NDPS Court subsequently enlarged him on bail and the UT challenged the order, contending that the trial Court had failed to apply the mandatory restrictions contained in Section 37 of the NDPS Act.

The respondent opposed the plea, arguing that there had been no misuse of bail, interference with the trial, tampering with evidence or influencing of witnesses, and that no supervening circumstance justified cancellation.

Court's Observations:

The High Court drew a distinction between cancellation of bail because of subsequent misconduct and setting aside a bail order because the order itself suffers from illegality or improper exercise of judicial discretion.

Relying on Puran v. Rambilas, Abdul Basit @ Raju v. Mohd. Abdul Kadir Chaudhary, Mahipal v. Rajesh Kumar and State of Rajasthan v. Indraj Singh, the Court held that a superior Court can interfere with an order granting bail where the order is contrary to law, even without any subsequent misconduct by the accused.

The Court then examined Section 37 of the NDPS Act, which imposes stringent conditions for grant of bail in cases involving commercial quantity. The Court noted that the provision requires satisfaction that there are reasonable grounds for believing that the accused is not guilty and that he is not likely to commit any offence while on bail.

Referring to State of Kerala v. Rajesh and Narcotics Control Bureau v. Mohit Aggarwal, the Court reiterated that the twin conditions under Section 37 are mandatory and cannot be treated as a mere formality.

“The expression 'reasonable grounds' is considerably different from a mere 'prima facie' consideration applicable in an ordinary bail matter,” the Court observed, adding that although a Court is not required to conduct a mini-trial at the stage of bail, the statutory threshold under Section 37 cannot be diluted.

On examining the impugned bail order, the Court found that it did not disclose adequate consideration of the statutory twin conditions, particularly any specific satisfaction that there were reasonable grounds for believing that the accused was not guilty of the alleged offence.

The Court held that the trial Court had granted bail by applying general principles governing bail without adequately considering the special statutory restrictions applicable to commercial quantity cases under the NDPS Act.

“Section 37 of the Act, cannot be reduced to a mere formality or treated as an ordinary consideration which may be overlooked while exercising jurisdiction under Section 439 Cr.P.C.,” the Court held.

Accordingly, the High Court set aside the bail order and cancelled the bail granted to the accused. It directed him to surrender before the trial Court forthwith and, in any event, within two weeks, failing which the trial Court was directed to adopt coercive measures.

The Court clarified that its observations were confined to examining the legality and propriety of the bail order and would not amount to an opinion on the merits of the prosecution case or the guilt of the accused. It also left it open to the accused to seek fresh bail before the competent Court, which would consider such application on its own merits and in accordance with law.

Case Title: Union Territory of J&K v. Shabir Ahmad Dar


Citation: 2026 LiveLaw (JKL)

Appearances:
For UT of J&K: GA Jehangir Ahmad Dar with AC Nadia Abdullah.
For respondent: Advocate Shabir Ahmad Dar.

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