1. Bail cancellation review under NDPS Act — No contraband recovered from petitioner — Charge includes Section 27-A of NDPS Act. (Para 1 , 2 , 5 , 6 , 13 )
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2026 Supreme(Online)(J&K) 787
IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR
Sanjay Parihar, J
Kamran Mushtaq Lone – Appellant
Versus
Union Territory of J&K – Respondent
Bail App/17/2026
Advocates:
For the Appellants/Petitioners: Aswad R. Attar
For the Respondents: Haaris Khan, Mohsin Qadiri
For the Appellants/Petitioners: Aswad R. Attar
For the Respondents: Haaris Khan, Mohsin Qadiri
Cancellation of bail requires cogent and overwhelming supervening circumstances, such as misuse of liberty or interference with justice, and cannot be ordered merely because the court believes the initial grant of bail was legally erroneous.
Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 8, 21, 27-A, 29 and 37 - Cancellation of bail - Distinction between rejection and cancellation of bail - Cancellation of bail already granted requires existence of cogent and overwhelming circumstances such as misuse of liberty, interference with the course of justice, tampering with evidence, intimidation of witnesses, or likelihood of absconding (Paras 15, 16) - Interpretation of "financing illicit traffic" under Section 27-A - The expression carries a specific connotation and cannot be invoked merely on the basis of every transaction involving money; there must be material indicating direct or indirect financing of activities constituting illicit trafficking (Paras 18, 19).
Facts of the case:
The petitioner was granted regular bail by the Trial Court on 14.05.2024. Subsequently, the prosecution filed an application for cancellation of bail, asserting that Section 27-A of the NDPS Act was attracted due to suspicious bank transactions, implying the petitioner financed illicit trafficking. The Trial Court, on 03.07.2024, recalled and cancelled the bail on the grounds that the rigours of Section 37 were attracted once Section 27-A was invoked. The petitioner challenged this order, contending that no supervening circumstances occurred to justify the cancellation.
Findings of Court:
The court observed that the prosecution's application for cancellation was based on the assertion that the Trial Court committed an error during the initial grant of bail, rather than any subsequent misconduct by the petitioner. It was found that no material existed to show the petitioner violated bail conditions or tampered with evidence after 14.05.2024.
Issues: Whether the Trial Court was justified in recalling and cancelling the bail of the petitioner solely on the ground that the rigours of Section 37 of the NDPS Act were attracted via Section 27-A, in the absence of any supervening circumstances or misuse of liberty.
Ratio Decidendi: Rejection of bail and cancellation of bail stand on different footings. Once judicial discretion has been exercised and bail granted, it can only be cancelled upon the occurrence of supervening events or misuse of liberty. A mere review of the merits of the initial grant, without new conduct or events, does not justify the cancellation of bail.
Result: Order dated 03.07.2024 set aside; petitioner admitted to bail.
Legal Category Hierarchy
Table of Contents
2. Petitioner: no ingredients of Section 27-A, no change in circumstances, no misuse of bail. Respondent: Section 27-A attracts Section 37 bar. (Para 2 , 3 , 4 , 8 , 10 , 11 )
3. Cancellation of bail requires supervening circumstances or misuse of liberty; absent here. Mere error in granting bail is insufficient. (Para 15 , 16 , 20 )
4. Cancellation of bail requires cogent, overwhelming circumstances such as misuse of liberty; mere error in initial grant is insufficient. (Para 15 , 16 )
5. Impugned order set aside. Petitioner admitted to bail on personal bond and surety of one lakh rupees with conditions. (Para 22 , 23 )
6. What standard governs cancellation of bail already granted?
Cancellation requires cogent and overwhelming circumstances like misuse of liberty, tampering with evidence, or supervening events; not mere error in initial grant. (Para 15 , 16 )
7. Is the mere addition of Section 27-A of NDPS Act a ground to cancel bail?
No. Mere addition of a charge under Section 27-A, without material showing financing illicit traffic, is not a supervening circumstance warranting cancellation. (Para 17 , 18 , 19 )
8. Can a court review its own bail order absent supervening circumstances?
No. Criminal courts lack power to review judicial orders absent statutory authority, thus cancellation must be based on fresh grounds, not review of merits. (Para 20 )
9. What is the scope of 'financing illicit traffic' under Section 27-A NDPS Act?
It requires direct or indirect financing of illicit trafficking activities, not mere receipt of money from sale of narcotics, absent nexus to financing such activities. (Para 18 , 19 )
O R D E R
1. The petitioner is facing trial in FIR No. 10/2024 registered under Sections 8/21 and 27-A of the NDPS Act. Initially, he had approached the Court of Second Additional Sessions Judge, Srinagar “the trial court” seeking bail, while co-accused were granted bail, the petitioner was denied the same on the ground that he was alleged to be involved in an offence punishable under Section 27-A of the NDPS Act. After the filing of the charge-sheet and framing of charges on 28.03.2024, the petitioner filed another application for bail, which was allowed, and he was granted short-term bail vide order dated 26.04.2024. Thereafter, by order dated 14.05.2024, the petitioner was admitted to regular bail.
2. Subsequently, the respondent-prosecution moved an application seeking cancellation of the bail granted to the petitioner and also sought alteration of the charge on the ground that the offence under Section 27-A of the NDPS Act was attracted and, therefore, the petitioner was not entitled to the concession of bail. Acting upon the said application, the Trial Court, vide order dated 03.07.2024, recalled and cancelled the bail earlier granted to the petitioner. Aggrieved by the said order, the petitioner has challenged the same through the present petition, contending that a bare perusal of the charge-sheet does not disclose the commission of any offence under Section 27-A of the NDPS Act, as the essential ingredients of the said provision are completely absent from the material collected during investigation. According to the petitioner, the Trial Court had consciously granted him regular bail on 14.05.2024 after considering the material available on record, and thereafter no change in circumstances or supervening event occurred that could justify cancellation of the bail so granted. The petitioner asserts that the respondents misled the Court by invoking Section 27-A of the NDPS Act, although the allegations and evidence on record did not, even prima facie, make out an offence under the said provision.
3. The petitioner further contends that he was never in conscious possession of any contraband substance and that the prosecution has falsely implicated him by concocting a fabricated narrative. It is submitted that since the alleged recovery itself is disputed and forms a matter for trial, the same could not have been relied upon to deny or cancel the concession of bail. The petitioner also emphasizes that he has no previous criminal antecedents or involvement in similar offences and has throughout remained cooperative with the investigating agency as well as the trial proceedings. Accordingly, it is urged that the impugned order cancelling bail is unsustainable in law and deserves to be set aside.
4. Ld. counsel for the petitioner, while placing reliance upon the judgment of the Hon’ble Supreme Court in State of West Bengal v. Rakesh Singh , (2022) 19 SCC 306, submitted that the quantity of contraband allegedly recovered, was only of intermediate quantity and that even if the quantities recovered from all the accused persons were taken cumulatively, the same would still not constitute a commercial quantity. It was contended that the rigours of Section 37 of the NDPS Act were, therefore, not attracted. Ld. counsel further argued that there was no material on record to indicate that the petitioner had indulged in financing illicit traffic or harbouring offenders so as to attract the provisions of Section 27-A of the NDPS Act. According to him, the invocation of Section 27-A was wholly unwarranted and was resorted to only with a view to defeat the petitioner’s claim for bail.
5. The respondents have opposed the petition and submitted that on 30.01.2024, a police party laid a naka at Maloora near J&K Bank and intercepted a vehicle bearing Registration No. HR05BK-1149 which was proceeding from Maloora Bus Stand. During the search of the vehicle, certain incriminating articles, including a digital weighing scale, a broken spo
