Prolonged custody can override UAPA bail bar

The Supreme Court granted bail to the appellant in a UAPA prosecution, holding that continued incarceration for nearly six years, coupled with the remote prospect of trial completion, justified release despite the statutory bail restriction under Section 43-D(5).

The Bench of Justice B.V. Nagarathna and Justice Ujjal Bhuyan framed the case around the interface between Section 43-D(5) of the Unlawful Activities (Prevention) Act, 1967 and the constitutional guarantee of personal liberty under Article 21. The Court also examined the propriety of smaller Benches progressively narrowing the effect of a larger Bench decision without expressly disagreeing with it.

The appellant had been denied bail by the Special NIA Court and the High Court of Jammu & Kashmir and Ladakh. The prosecution case arose from an NIA investigation into narcotics and alleged terror links. The appellant was shown as accused No. 2 in the chargesheet, with allegations relating to recovery of cash and heroin, and alleged links with Pakistan-based operatives. He had been in custody since 11 June 2020.

The Court noted that more than 350 witnesses were still to be examined. On that basis, it concluded that completion of trial in the near future was well-nigh impossible. In such circumstances, the Court held that the principle in K.A. Najeeb would apply with full force.

The judgment also records the Court’s concern that the conviction rate in cases under the UAPA is very low, with chances of acquittal stated to be more than 90 to 95 percent on the figures referred to in the judgment. That assessment reinforced the Court’s view that continued detention could not be justified merely by the pendency of a serious charge.

The Court therefore directed release on bail on terms to be fixed by the Special NIA Court. It required the appellant to deposit his passport, appear before Handwara Police Station once every fortnight, cooperate with the trial, and refrain from threatening or influencing witnesses.

The appeal was allowed.

Practical takeaway: In a UAPA case, prolonged pre-trial custody and an unlikely trial timeline can justify bail under Article 21, even where Section 43-D(5) is invoked.