Court emphasizes mandatory twin conditions under Section 37(1)(b)(ii) of NDPS Act must be fulfilled before granting bail in cases involving commercial quantity of narcotics.
In a significant judgment dated October 5, 2026, the Jammu & Kashmir and Ladakh High Court set aside the bail granted to Shabir Ahmad Dar in a narcotics case involving the recovery of 24 kilograms of ganja, exceeding the notified commercial quantity of 20 kilograms. The judgment underscores the stringent statutory restrictions on bail in cases involving commercial quantities under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
The respondent was initially granted bail by the Special NDPS Court, Pulwama, on October 28, 2025. However, the Union Territory of J&K challenged this order before the High Court, contending that the trial court had failed to apply the mandatory twin conditions set forth in Section 37(1)(b)(ii) of the NDPS Act. These conditions require the court to be satisfied that there are reasonable grounds to believe the accused is not guilty and that the accused is not likely to commit any offence while on bail.
The High Court, presided over by Justice M. A. Chowdhary, emphasized that the restrictions under Section 37 are mandatory and prevail over the general bail provisions under the Criminal Procedure Code. The Court pointed out that the trial court's order did not disclose any clear or legally sustainable satisfaction on the twin conditions. It clarified that the phrase "reasonable grounds" demands more than a prima facie view; it requires substantial grounds to believe the accused may not be guilty. Consequently, the bail was granted without proper application of the statutory mandate.
The Court also clarified the distinction between cancellation of bail due to post-bail misconduct and setting aside bail orders on grounds of illegality or non-application of mind. It held that even in the absence of any misconduct by the accused after bail, a bail order can be set aside if it is found to be contrary to statutory provisions.
The judgment highlighted the legislative intent behind the NDPS Act to combat the serious societal menace posed by narcotic drugs. While societal impact is a relevant consideration in bail matters, it cannot replace the specific statutory requirements of Section 37.
Ultimately, the High Court allowed the petition filed by the Union Territory and cancelled the bail granted to the accused. The respondent was directed to surrender before the trial court within two weeks, failing which coercive action would be taken. The Court also clarified that its observations were confined to the bail order's legality and did not express any opinion on the merits of the case or the guilt of the accused. The respondent remains free to apply for bail again before the competent court, which shall consider the application on its own merits.
This ruling reinforces the importance of strict compliance with the NDPS Act's provisions in cases involving commercial quantities of narcotics and serves as a precedent for the scrutiny required in bail applications under such circumstances.
Bottom Line:
NDPS Act - Bail involving commercial quantity - Bail order can be set aside by superior Court not only for post-bail misconduct but also where grant of bail itself is illegal, perverse or contrary to statutory mandate - In cases involving commercial quantity, Court must record meaningful satisfaction regarding twin conditions under Section 37(1)(b)(ii) of NDPS Act - Bail granted without such consideration is unsustainable.
Statutory provision(s):
Narcotic Drugs and Psychotropic Substances Act, 1985 Section 37(1)(b)(ii), Criminal Procedure Code, 1973 Section 439(2), Section 482
