Srinagar, Oct. 6, KDC: The High Court of Jammu & Kashmir and Ladakh has cancelled the bail granted to a man accused of possessing over 24 kilograms of ‘ganja’, holding that the statutory restrictions under Section 37 of the NDPS Act cannot be reduced to a mere formality and that the absence of post-bail misconduct cannot justify an order that is fundamentally contrary to law.
Allowing a cancellation petition filed by the Union Territory administration under Section 439(2) read with Section 482 of the Code of Criminal Procedure, Justice M. A. Chowdhary set aside the order dated October 28, 2025, passed by the Special NDPS Court, Pulwama, which had enlarged Shabir Ahmad Dar, a resident of Dogripora, Awantipora, on bail.
The High Court directed the accused to surrender before the trial court within two weeks, failing which coercive measures will be deployed to take him into custody.
Dar was arrested on October 10, 2024, in connection with FIR No. 145/2024 registered at Police Station Awantipora under Sections 8/20 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act following the alleged recovery of over 24 kilograms of ganja. Under the central statutory notification, any quantity exceeding 20 kilograms of ganja is classified as a commercial quantity, attracting the stringent twin conditions for bail.
Appearing for the Union Territory, Government Advocate Jehangir Ahmad Dar, assisted by Assisting Counsel Nadia Abdullah, contended that the trial court committed a grave illegality by enlarging the accused on ordinary bail principles without recording the mandatory statutory satisfaction under Section 37(1)(b)(ii) of the NDPS Act.
Opposing the plea, Advocate Shabir Ahmad Dar, representing the accused, submitted that the trial court had exercised valid judicial discretion and that the UT had failed to demonstrate any supervening circumstances, such as tampering with evidence, influencing witnesses, or misusing the concession of bail, to warrant cancellation.
Rejecting the defense argument, Justice M. A. Chowdhary made a clear distinction between cancelling bail due to subsequent misconduct and setting aside an order that suffers from an inherent legal defect.
“The submission of learned counsel for the respondent that cancellation cannot be ordered in the absence of post-bail misconduct does not, by itself, answer the challenge raised by the applicant-UT of J&K. Where the order granting bail is alleged to be contrary to a statutory mandate, the superior Court is required to examine the legality and sustainability of that order,” the Court held, adding “In the present case, the alleged recovery is over 24 kilograms of ‘ganja’, whereas the notified commercial quantity of ‘ganja’ is 20 kilograms. The allegation, therefore, concerns a quantity exceeding the commercial quantity threshold.”
Citing the Supreme Court judgments, the Bench underlined that superior courts are fully empowered to examine whether judicial discretion was exercised soundly and legally, irrespective of whether the accused abused his liberty after release.
Scrutinizing the requirements of Section 37 of the NDPS Act, the Bench held that the trial court failed to record any sustainable finding that the accused was prima facie not guilty and unlikely to commit offences while on bail.
“The expression ‘reasonable grounds’ is considerably different from a mere ‘prima facie’ consideration applicable in an ordinary bail matter. It requires substantial grounds which would justify the Court in believing that the accused may not be guilty of the alleged offence… In the absence of a meaningful consideration of these statutory requirements, the exercise of discretion by the learned trial Court cannot be sustained merely by reference to the general principles governing grant of bail,” the bench held.
Justice Chowdhary observed that while the discretion to grant bail is wide, it must operate within the statutory fences erected by Parliament to counter the menace of illicit narcotics trafficking.
“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. Consequently, this Court finds that the order dated 28.10.2025, granting bail to the respondent, is not sustainable in law and is liable to be set aside,” the Court said.
Setting aside the bail order, the High Court ordered Dar to surrender before the Special NDPS Court, Pulwama, within 14 days, clarifying that the order will not preclude the accused from moving a fresh bail application before the competent court based on the stage of trial or changed circumstances. (KDC)
