Syed Iftikhar Andrabi vs National Investigation Agency, Jammu

2026 INSC 503 REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2026 (ARISING OUT OF SLP (CRIMINAL) NO. 1090 OF 2026)

SYED IFTIKHAR ANDRABI APPELLANT(S)

VERSUS

NATIONAL INVESTIGATION AGENCY, JAMMU RESPONDENT(S)

JUDGMENT

UJJAL BHUYAN, J.

Leave granted.

2. The present case raises an important question

concerning the interface between Section 43-D(5) of

the Unlawful Activities (Prevention) Act, 1967 and the

constitutional guarantee of personal liberty under Article 21 Signature Not Verified of the Constitution of India. More particularly, the issue Digitally signed by BORRA LM VALLI

concerns the propriety of smaller Benches progressively Date: 2026.05.18 17:23:33 IST Reason:

hollowing out the constitutional force of a larger Bench

decision without ever expressly disagreeing with it.

3. The above question arises in the context of the

challenge by the appellant to the judgment and order dated

19.08.2025 passed by the High Court of Jammu & Kashmir

and Ladakh at Jammu (briefly ‘the High Court’ hereinafter) in

Criminal Appeal (D.) No. 20/2024 (Syed Iftikhar Andrabi Vs. National

Investigation Agency, Jammu).

3.1. It may be mentioned that by order dated

10.08.2024, the third Additional Sessions Judge, Jammu

designated as the Special National Investigation Agency

(NIA) Court rejected the bail application of the appellant in

R.C. No. 03/2020/NIA/JMU registered under Sections 17,

38 and 40 of the Unlawful Activities (Prevention) Act, 1967

read with Sections 8, 21, 25 and 29 of the Narcotic Drugs

and Psychotropic Substances Act, 1985 read with Section

120B of the Indian Penal Code, 1860 (IPC). By the impugned

judgment and order dated 19.08.2025, the High Court

upheld the order passed by the Special NIA Court and

2 dismissed the appeal filed by the appellant under Section 21

of the National Investigation Agency Act, 2008.

4. At the outset, relevant facts may be noted.

5. Appellant was a government employee in the

Rural Development Department, serving at Kupwara. It

is pleaded that appellant is an ardent advocate of the

constitutional, federal and democratic set up of our country

and is a supporter of Jammu & Kashmir People’s

Conference, a registered mainstream political party.

5.1. Appellant was taken into preventive detention on

07.08.2019 under the Jammu & Kashmir Public Safety Act,

1978 after abrogation of Article 370 and was lodged in

Central Jail, Srinagar. Thereafter, he was shifted to and

lodged in Central Jail, Agra. In the dossier and the grounds

of detention, it was mentioned that appellant was a

government employee and posted as a Village Level Worker

in the Rural Development Department. He is a political

activist associated with People’s Conference and has close

connection with the people. To ensure that there was no

mayhem, disorder and law and order problem in view of the

3 fragile law and order situation following abrogation of Article

370, the Superintendent of Police, Handwara recommended

detention of the appellant under the provisions of the

Jammu & Kashmir Public Safety Act, 1978.

5.2. Appellant challenged the order of preventive

detention dated 07.08.2019 before the High Court in W.P.

(Crl.) No. 261/2019. The case was heard on 12.03.2020 and

the judgment was reserved.

5.3. In the meanwhile, it is stated that the preventive

detention of the appellant was revoked by the Government

on 25.04.2020 and he was released from custody. High

Court also delivered the judgment on 26.06.2020 quashing

the order of preventive detention dated 07.08.2019. High

Court noted in the said judgment that though the District

Magistrate had relied upon ‘other incriminating material’ to

arrive at the satisfaction that appellant had to be

preventively detained, nothing was mentioned as to what

were the ‘other incriminating material’. Those were also not

furnished to the appellant which prevented him from making

an effective representation, rendering the preventive

detention of the appellant untenable.

4 5.4. A first information being FIR No. 183/2020 was

lodged by the police at Handwara Police Station on

11.06.2020 under Sections 8 and 21 of the Narcotic Drugs

and Psychotropic Substances Act, 1985 (briefly ‘the NDPS

Act’ hereinafter). The allegation in the FIR is that police

during checking of the vehicles and pedestrians at Kuhroo

Bridge stopped a white coloured vehicle (Creta model)

without registration, which was on its way from Baramulla

to Handwara. During checking of the vehicle, a black bag

was found under the front seat of the vehicle. In the course

of search of the recovered bag, a large number of Indian

currency notes of 500 denomination were found; that apart,

six packets of suspected narcotic substances were found

from the dicky of the vehicle. The driver Abdul Momin was

taken into custody. In connection with the aforesaid police

case, appellant was brought to the police station for

investigation whereafter he was arrested on 11.06.2020. As

per the disclosure memo of the accused appellant, it is stated

that during investigation of FIR No. 183/2020, the accused

appellant in the presence of Handwara Police Special

Investigation Team (SIT) disclosed that he had taken heroin

5 from Abdul Momin Peer and that he could recover the same

by pointing out.

5.5. It appears that Central Government vide letter

dated 22.06.2020 directed the National Investigation Agency

(NIA) to conduct investigation into FIR No. 183/2020.

Accordingly, NIA re-registered the same as FIR No. RC-

03/2020/NIA/JMU. In the newly registered FIR, NIA

mentioned about interception of the white colored Creta

vehicle without registration number at Kuhroo Bridge while

it was on its way to Handwara which led to seizure of a large

amount of cash in 500 rupee denomination alongwith six

packets of heroin like substance. The driver Abdul Momin

was arrested and based on the information provided by him,

further raids at different locations in Handwara were carried

out leading to recovery of 15 kgs of contraband and cash

amounting to Rs. 1.15 crores. It was further mentioned that

one of the arrested persons i.e. the appellant is a close

relative of Mohd. Qasim Geelani and Mohd. Yusuf Geelani

who are currently in Pakistan; being commanders of

proscribed terrorist organization LeT and presently

operating from across the border.

6 5.6. NIA filed chargesheet before the Special NIA

Court on 05.12.2020 being Chargesheet No. 08/2020.

Insofar as the appellant is concerned, he is arrayed as

accused No. 2 and the allegation against him is that on

information provided by him, cash amounting to Rs.

35,17,970.00 and three packets of heroin totalling 3.2 kgs

were recovered from the bedroom of accused No. 1; besides

two mobile phones were also recovered. It is stated that

during investigation, it was revealed that in 2017 accused

No. 1 Abdul Momin Peer came in contact with his brother-

in-law Saleem Andrabi, accused No. 5, who is the son of the

appellant-accused No. 2, and all of them started heroin

smuggling. It is further stated that the phone numbers

appearing in his mobile phones establish his linkage with

Pakistan based LeT/HM (Hizbul Mujahideen) operatives viz

Wahid Geelani, Ajaz and others. It is also stated that

accused No. 2 (appellant) had visited Pakistan in 2016 and

2017 and had met one Saifudeen alias Saifulla, a brother of

Wahid Geelani. PW-33 in his statement before the police

mentioned about the involvement of appellant-accused No.

2 in drug racketeering and his association with LeT/HM

7 operatives based in Pakistan. It is further stated that it has

come on record that accused No. 2 (appellant) used to supply

drugs/heroin by using his car and that he had visited

Pakistan in 2016 and 2017 via Wagah-Attari border. The

chargesheet mentioned that appellant-accused No. 2 worked

as an overground worker for LeT and HM. Thus, appellant-

accused No. 2 has been accused of committing offences

under Sections 8, 21, 25 and 29 of the NDPS Act read with

Sections 17, 38 and 48 of the Unlawful Activities (Prevention)

Act, 1967 (briefly ‘the UAP Act’ hereinafter) read with Section

120B IPC.

5.7. Thereafter NIA filed supplementary chargesheets.

5.8. In the meanwhile, appellant sought for bail on

medical grounds. Special NIA Court vide the order dated

04.01.2022 granted interim bail to the appellant on medical

grounds initially till 23.01.2022 and, thereafter, extended

upto 10.03.2022. On expiry of the bail period, appellant

surrendered before the Special NIA Court on 10.03.2022.

5.9. Charge in this case was framed by the Special

NIA Court on 15.11.2023. Insofar as the appellant is

8 concerned, he has been charged with having committed

offences under Sections 8, 21, 25 and 29 of the NDPS Act

read with Sections 17, 38 and 40 of the UAP Act read with

Section 120B IPC.

6. Appellant sought for regular bail before the

Special NIA Court. However, the learned Special Judge vide

the order dated 10.08.2024 rejected the bail application of

the appellant.

7. Assailing the aforesaid order dated 10.08.2024,

appellant preferred an appeal under Section 21 of the National

Investigation Agency Act, 2008 (‘NIA Act’ hereinafter) before the High

Court which was registered as Criminal Appeal (D) No.20 of

2024. By the impugned judgment and order dated 19.08.

2025, the High Court dismissed the said appeal of the

appellant.

8. Aggrieved by the impugned judgment and order

dated 19.08.2025, appellant has preferred the instant

special leave petition before this Court. By order dated

07.01.2026, this Court had issued notice whereafter parties

have exchanged affidavits. The matter was heard on

9 11.03.2026 and thereafter on 13.04.2026. Both the sides

have also filed written submissions following closure of the

hearing.

9. Mr. Shadan Farasat, learned senior counsel for

the appellant submits that both the trial court as well as the

High Court erred in denying bail to the appellant. He

submits that appellant has been in custody since

11.06.2020, enduring over 5 years 9 months of

incarceration. Though the chargesheet qua the appellant

was filed way back on 05.12.2020, the trial is moving at a

slow pace. There are more than 350 prosecution witnesses

still to be examined and early conclusion of the trial is well

nigh impossible.

9.1. Learned senior counsel submits that speedy trial

is a valuable fundamental right of an accused. Both liberty

and speedy trial are anchored in Article 21 of the

Constitution of India. Deprivation of personal liberty of an

accused or under trial for a considerable period of time

without any speedy trial or without any prospect of

conclusion of trial amounts to gross violation of Article 21.

He asserts that Article 21 being over-arching and

10 sacrosanct, a constitutional court cannot be restrained from

granting bail to an under trial, regardless of statutory

restrictions. In this connection, learned senior counsel has

placed reliance on a number of decisions of this Court

including Shaheen Welfare Association Vs. Union of India1,

Union of India Vs. K.A. Najeeb2 and Sheikh Javed Iqbal Vs.

State of U.P.3 He, therefore, submits that if there is no

likelihood of conclusion of trial within a reasonable period, a

constitutional court would be obligated to enlarge the

accused on bail. Adverting to K.A. Najeeb, he submits that

rigors of bail under special criminal statutes will melt down

when there is no likelihood of the trial being completed

within a reasonable time and the period of incarceration

already undergone has exceeded a substantial part of the

prescribed sentence. To support such a contention, he has

cited examples of several accused persons incarcerated

under special criminal statutes who have been granted bail

by this Court considering their long incarceration.

1 (1996) 2 SCC 616 2 (2021) 3 SCC 713 3 (2024) 8 SCC 293

11 9.2. Learned senior counsel also submits that the

seriousness of the alleged offence cannot continue to be a

dominant factor to be considered for bail in case of delay in

conclusion of trial. Bail cannot be denied on the ground of

seriousness of alleged offence when the accused has

undergone prolonged incarceration and the trial is unlikely

to be completed within a reasonable time.

9.3. Insofar as the present case is concerned, the

impugned judgment and order erroneously attributes the

delay in trial to the appellant which is contrary to the record.

As a matter of fact, the trial court in orders dated 06.08.2025

and 07.08.2025 has recorded that the prosecution’s failure

to produce witnesses has delayed the trial proceedings. It is

submitted that the prosecution is responsible for a two-year

delay in framing of charges; while arguments on charge were

concluded on 15.11.2021 when the order was reserved,

charges could be framed only on 15.11.2023 due to non-

appearance of the Chief Investigating Officer despite

repeated reminders by the trial court. Pronouncement of

order of charge was further delayed due to change of the

public prosecutor and an application filed by the new senior

12 public prosecutor to further argue the case even after the

order was reserved. On the contrary, appellant only filed four

applications before the trial court, rather he was compelled

to file the applications due to the conduct of the respondent

which were clearly prejudicial to a fair trial. For example, it

came to light during one of the hearings on 10.09.2025 that

the prosecution had suppressed statements recorded under

Section 164 of the Code of Criminal Procedure, 1973 (Cr.P.C.)

of all the protected witnesses. Therefore, appellant was

compelled to file the applications under Sections 91 and

173(8) Cr.P.C. read with Section 156(3) Cr.P.C. and for

compliance of the directions of this Court in Inadequacies

and Deficiencies in Criminal Trials, In Re4.

9.4. Mr. Farasat submits that it was wrong on the

part of the High Court to have dismissed the prayer for bail

of the appellant on the ground inter alia that charges have

already been framed against the appellant. He asserts that

framing of charge does not bar grant of bail even under

special criminal statutes like the UAP Act or the NDPS Act.

4 (2021) 10 SCC 598

13 9.5. It has also been pointed out that in a case arising

out of the same chargesheet, this Court has granted bail to

a co-accused (A-11) Shri Romesh Kumar despite charges

having been framed against him under Sections 118, 117

and 120B IPC read with Sections 17 and 40 of the UAP Act

read with Sections 8, 21 and 29 of the NDPS Act

predominantly on the ground of delay in trial. Referring to

the said decision of this Court in Romesh Kumar Vs. Union

of India, Special Leave Petition (Criminal) No. 13829 of 2024,

decided on 07.02.2025, he submits that on the principle of

parity, appellant should be extended the benefit of bail as he

has undergone a longer period of custody than Shri Romesh

Kumar.

9.6. Mr. Farasat has also touched upon the merit of

the charges framed against the appellant. According to him,

no prima-facie case has been made out against the appellant

either under the UAP Act or under the NDPS Act. The alleged

recovery of cash amounting to INR 35,17,970.00 and 3.2 Kgs

of heroin pursuant to disclosure statement attributed to the

appellant is legally inadmissible and wholly unsustainable

for the following reasons:

14

(i) the disclosure memo fails to specify the precise

place of concealment and it only states I have taken

narcotic substance from A-1. I can recover the same

by pointing out.

(ii) the disclosure memo is conspicuously silent with

regard to the alleged recovery of cash rendering

such recovery inadmissible in evidence and

incapable of being attributed to the appellant.

(iii) the alleged disclosure is not supported by any

pointing-out memo duly signed by the accused and

two independent witnesses. The alleged recovery,

therefore, not being a direct consequence of the

disclosure statement of the appellant under Section

27 of the Indian Evidence Act, 1872 is inadmissible

qua the appellant.

(iv) the site map and the recovery-cum-seizure memo

do not have signatures of independent witnesses or

even of the accused when it is the case of the

prosecution that the disclosure, recovery and the

15 arrest of the appellant were made at the same site

and at the same time.

9.7. There being no admissible evidence to establish

any continuity or causal link between the disclosure

allegedly made by the appellant and the subsequent recovery

said to have been affected at his instance, there is no

material on record to even show a prima-facie case against

the appellant under the NDPS Act. As a matter of fact, the

alleged recovery on 11.06.2020 had already been shown as

seized from accused No. 1 at Bemina, Srinagar and reported

in the public domain on 10.06.2020. Thus, there is no

recovery either from the person of the appellant or from the

residence of the appellant or from any working place of the

appellant. On the contrary, the alleged recovery was already

shown as seized from accused No. 1.

9.8. Learned senior counsel submits that the High

Court has granted bail to a co-accused of the appellant being

Islam Ul-Haq Peer (accused No. 3) who was arrested on an

exactly identical disclosure. In Criminal Appeal (Diary) No.

12/2024 (Islam Ul Haq Peer Vs. Union of India), the High

Court vide the order dated 18.02.2025, granted bail to the

16 said accused. This order dated 18.02.2025 has not been

challenged by the respondent till date and has thus attained

finality.

9.9. Referring to the chargesheet and the charges

framed by the trial court, Mr. Shadan Farasat, learned

senior counsel for the appellant submits that the gist of the

allegations against the appellant is that he raised funds by

selling narcotics which were then used for funding terrorism;

in other words, the charges are of narco-terrorism. The

charge of terror cannot stand independent of the charge

under the NDPS Act. When there is no evidence of sale or

purchase of narcotics nor is there any admissible evidence

of any recovery of narcotics or funds from the appellant, not

to speak of having found the appellant in conscious

possession of any narcotic, the whole premise of terror

funding charges against the appellant under the UAP Act

collapses.

9.10. Insofar as the allegation that appellant is related

to or has links with Mohd. Qasim Geelani and Mohd. Yusuf

Geelani, learned senior counsel submits that the same is

wholly untrue. The allegations of having such a link has

17 been made on the basis of appellant’s statement made before

the police and admittedly there has been no investigation in

this regard. He submits that insofar as Mohd. Yusuf Geelani

is concerned, he passed away in the year 2000 and in so far

Mohd. Qasim Geelani is concerned, he is a government

employee working as an Assistant Lineman in the Jal Shakti

Department, Handwara.

9.11. The charge that the appellant is having link with

the LeT/HM operative Wahid Geelani is based on the

explanation memo of phone contacts and following the

disclosure of the appellant himself before the police. Such an

explanation memo is inadmissible in evidence, being in the

nature of a confession before the police, thus, squarely

prohibited under Section 25 of the Indian Evidence Act,

1872. Other than the appellant’s confession before the

police, there is no other material to show any linkage of the

appellant with any terrorist. He submits that one of the

phone numbers mentioned in the explanation memo is

actually a toll free customer care number of Q Mobile, a

network service provider. That apart, the CDR report of the

electronic devices seized from the appellant reveals no

18 terrorist connection; the CDR report which is part of the

chargesheet shows no phone calls between the petitioner

and any terrorist.

9.12. It is also submitted that the respondent wrongly

relied on an over ground worker (OGW) categorization

certificate issued on 04.12.2020 to show that appellant is an

over ground worker of the terrorists. He submits that not

only the certificate was issued a day before filing the

chargesheet but was also issued while the appellant was

already in preventive detention for around six months under

the Jammu and Kashmir Public Safety Act, 1978 when the

dossier prepared in connection with that preventive

detention matter did not even remotely make any reference

to the appellant having any terror link. As a matter of fact,

the said categorization certificate was issued by the very

same Superintendent of Police, Handwara who in the dossier

dated 17.08.2019 in the preventive detention case had

described the appellant as a mainstream political worker of

the People’s Conference.

9.13. Learned senior counsel submits that serious

allegations have been levied against the appellant without

19 any material to justify such accusations. The allegations are

sweeping without any corroboration by the materials on

record, rather in complete disregard to the materials on

record.

9.14. He, therefore, submits that the present is a fit

case where this Court may interfere with the impugned

judgment and order and grant bail to the appellant.

10. Per contra, Mr. S.D. Sanjay, learned Additional

Solicitor General of India referring to the counter affidavit as

well as to the reply affidavit filed by the respondent to the

rejoinder affidavit of the appellant submits that the charges

against the appellant are extremely serious. He is accused of

funding terrorists and anti-national activities by utilizing

funds generated through sale of narcotics. Therefore, the

Special NIA Court as well as the High Court were justified in

denying bail to the appellant.

10.1. Appellant is a close relative of Md. Qasim Geelani

and Md. Yusuf Geelani who are Pakistan based LeT

terrorists. Appellant along with accused No.1 had visited

Pakistan during 2016-17 to meet the said persons.

20 10.2. Appellant was engaged in the sale of drugs along

with the other co-accused and the sale proceeds were

suspected to be channeled to the proscribed terrorist

organization LeT. Mr. Sanjay submits that accused No.1 is

the son-in-law of the appellant.

10.3. Mr. Sanjay submits that at the instance of the

appellant, cash amounting to Rs. 35,17,970.00 and three

packets of heroin totaling 3.2 kgs were seized from the

bedroom of accused No. 1.

10.4. It is submitted that during investigation, the

mobile phones of the appellant were seized and sent to the

appropriate authority in Delhi for data extraction. The

extracted data was shown to the appellant who explained the

various contacts appearing therein. The extracted data

establishes his linkage with Pakistan based LeT/HM

operatives.

10.5. Mr. Sanjay, learned Additional Solicitor General

has referred to the statements made by various prosecution

witnesses as well as the exhibited documents to drive home

the point that the appellant was deeply connected with drugs

21 related and terrorist activities. Even the approver i.e.

accused No. 8 has named the appellant and has stated that

the appellant provides money to LeT.

10.6. Insofar as the ground of delay in trial is

concerned, Mr. Sanjay submits that there is as such no

delay in the trial proceeding. If at all any delay has occurred,

the same is purely attributable to the appellant who has

been filing one application after the other. He submits that

there is no prolonged incarceration in the present case. A

total of 38 witnesses have been examined till date. As such,

there is no delay on the part of the prosecution. In any event,

delay per se cannot be a ground to grant bail to an accused

in such cases.

10.7. Learned Additional Solicitor General has

strongly disputed the contention of the appellant based on

annexure-P/26 to the rejoinder filed by the appellant that

the recovery of the alleged contraband following the

statement of the appellant was in fact already shown as

seized from accused No. 1 at Bemina, Srinagar and

reportedly in the public domain on 10.06.2020 itself. He

22 submits that these Facebook posts on various social media

portals are manipulated and lack credibility.

10.8. Insofar as the death certificate attached as

annexure-P/31 to the rejoinder of the appellant is

concerned, Mr. Sanjay submits that the same does not

pertain to the person named as Syed Md. Yusuf Geelani but

a different person named Syed Md. Yusuf Shah and the

surname ‘Geelani’ was put up later under brackets to make

it look like the death certificate of the concerned person. It

is submitted that the said certificate was issued on

29.05.2021, whereas the date of death is shown as

04.09.2000. Therefore, the certificate was procured

subsequently and cannot be said to be an original certificate.

However, on a pointed query by the Bench as to whether the

date of death is correct, Mr. Sanjay submits that he is not

aware of the same.

10.9. Learned Additional Solicitor General thereafter

drew the attention of the Court to the WhatsApp chats of the

appellant to contend that the appellant was in constant

touch with the terrorists of LeT. Here also, when the Bench

asked Mr. Sanjay to show the chats, he was unable to do so.

23 10.10. Insofar as granting of bail to co-accused Romesh

Kumar (A-11) by this Court is concerned, he submits that

the case of Romesh Kumar stands on a different footing from

that of the appellant. Romesh Kumar was an officer

belonging to the Narcotics Control Bureau (NCB) and is

alleged to have colluded with the other accused persons.

10.11. Learned Additional Solicitor General further

submits that Ms. Syeda Faiqa Andrabi is the daughter of the

appellant. She has a bank account bearing No.

0667041000000712 at J&K Bank, Zachaldara, Kupwara.

She is the sister of accused No.5 and sister-in-law of accused

No.1. Her account number showed transactions of around

ninety lakhs of rupees in the year 2018 but she could not

justify such transactions though she had no source of

income being in the age group of 18-19 years. Ms. Syeda

Faiqa Andrabi has stated that her account was being

operated by her father i.e. by the appellant and her brother

accused No. 5. Therefore, the submission is that all the

accused persons are related and the appellant has been

using the bank account of his daughter. However, on a query

by the Bench, learned Additional Solicitor General submitted

24 that the daughter of the appellant, Ms. Syeda Faiqa Andrabi,

has not been made an accused in the case.

10.12. As regards the case of Islam-ul-Haq Peer,

learned Additional Solicitor General submits that his case

does not stand on the same footing as that of the appellant

and, therefore, bail granted to the former would have no

bearing on the case of the appellant. Principle of parity would

not be applicable.

10.13. Finally, learned Additional Solicitor General

submits that all endeavor would be made to expedite the trial

which of course depends upon the co-operation of the

appellant. He submits that if the trial is not concluded within

a period of one year, then this Court may consider the bail

prayer of the appellant after expiry of such period.

10.14. On a query by the Bench, Mr. Sanjay submits

that prosecution has a very good case against the appellant

and is confident of achieving conviction.

10.15. In any view of the matter, the question of

granting bail to the appellant at this stage does not arise at

all. He, therefore, seeks dismissal of the criminal appeal.

25

11. In his reply submission, Mr. Shadan Farasat,

learned senior counsel for the appellant submits that there

is no material against the appellant to connect him with any

of the offences alleged either under the NDPS Act or under

the UAP Act. Therefore, continued detention of the appellant

has become wholly oppressive and untenable.

11.1. He has also drawn the attention of the Court to

the fact that two more accused persons have been granted

bail by the High Court after filing of the related special leave

petition. In the case of Mudasir Ahmed Dar Vs. NIA, Criminal

Appeal (Diary) No. 23/2025, decided on 18.09.2025, the

High Court has granted bail to accused No. 12, Mudasir

Ahmed Dar. The accusation against accused No. 12 is that

he was actively engaged as a narcotic drug peddler providing

logistic support to the co-accused; thus, indulging in narco-

terror activities. The High Court has repelled such

contention by holding that there is no material to suggest

that accused No. 12 was indulging in the sale of narcotics.

The High Court has taken the view that there are no

reasonable grounds for believing that the accusations

against accused No. 12 are prima facie true. Given the

26 materials available on record, he deserves to be released on

bail. Accordingly, bail was granted to the said Mudasir

Ahmed Dar.

11.2. Likewise, in the case of Amin Allaie, accused

No.13, the High Court in Criminal Appeal (Diary) No.

26/2025 (Amin Allaie Vs. NIA) decided on 02.04.2026 also

granted him regular bail. The High Court has noted that no

recovery was affected from the said Amin Allaie, not to speak

of participation or involvement in any transactions leading

to recovery of narcotic substances. The High Court has held

that the entire case against him rested upon the statement

of the approver and alleged telephonic contacts without any

corroborative evidence such as financial transactions,

recovery or any overt act attributable to him. Holding that

continued incarceration of the said accused would be

inconsistent with the mandate of Article 21 of the

Constitution of India, he has been enlarged on bail.

11.3. Learned senior counsel submits that while

Mudasir Ahmed Dar (accused No. 12) was in custody for a

period of 4 years 6 months at the time of grant of bail by the

High Court, Amin Allaie (accused No. 13) had completed 5

27 years 1 month of incarceration. All the accused persons who

have been granted bail till now have undergone lesser period

of incarceration than the appellant facing similar

accusations. Therefore, there is no reason why the appellant

should be denied bail.

11.4. Learned senior counsel submits that the

submission of learned Additional Solicitor General that the

trial court should be directed to conclude the trial within a

period of 1 year is wholly impractical considering the fact that

more than 350 prosecution witnesses are yet to be examined.

Placing reliance on the decisions of this Court in Roop

Bahadur Magar alias Sanki alias Rabin Vs. State of West

Bengal5 and High Court Bar Association, Allahabad Vs. State

of Uttar Pradesh6, Mr. Farasat submits that directing the trial

court for expeditious completion of trial is neither appropriate

nor adequate. It cannot be a practical remedy for a person

seeking bail suffering incarceration for a long period. If the

bail of the appellant can be considered after one year, there

is no reason why the same cannot be considered at the

5 2024 SCC OnLine SC 5575 6 (2024) 6 SCC 267

28 present moment. He, therefore, submits that the present is

a fit case for grant of bail to the appellant pending trial.

12. Submissions made by learned counsel for the

parties have received the due consideration of the Court.

13. At the outset, it would be appropriate to advert

to the relevant statutory provisions under which appellant

has been charged as well as the provisions relating to bail.

14. Section 8 of the NDPS Act prohibits certain operations. It

says that no person shall -

(a) cultivate any coca plant or gather any portion of

coca plant; or

(b) cultivate the opium poppy or any cannabis

plant; or

(c) produce, manufacture, possess, sell, purchase,

transport, warehouse, use, consume, import

inter-State, export inter-State, import into India,

export from India or tranship any narcotic drug or

psychotropic substances;

except for medical or scientific purposes and in the

manner and to the extent provided by provisions of

29 the NDPS Act or the rules or orders made

thereunder. Where any such provision imposes any

requirement by way of licence, permit or

authorization, such production, manufacture etc.

shall also be in accordance with the terms and

conditions of such licence, permit or authorization.

14.1. There are two provisos which, however, may not

be necessary to be analysed in this case.

14.2. Section 21 of the NDPS Act lays down the

punishment for contravention in relation to manufacture of

drugs and preparations. As per Section 21, whoever in

contravention of any provision of the NDPS Act or any rule

or order made or condition of licence granted thereunder,

manufactures, possesses, sells, purchases, transports,

imports inter-State, exports inter-State or uses any

manufactured drug or any preparation containing any

manufactured drug shall be punished in the manner

prescribed thereunder. If the contravention involves small

quantity, the punishment is rigorous imprisonment (RI) for

a term which may extend to one year, or with fine which may

30 extend to ten thousand rupees, or with both; where the

contravention involves quantity which is lesser than

commercial quantity but greater than small quantity, the

offender shall be punished with RI for a term which may

extend to ten years and with fine which may extend to one

lakh rupees; but where the contravention involves

commercial quantity, the offender shall be punished with RI

for a term which shall not be less than ten years but which

may extend to twenty years and shall also be liable to fine

which shall not be less than one lakh rupees but which may

extend to two lakh rupees. However, as per the proviso, the

court may, for reasons to be recorded in the judgment,

impose a fine exceeding two lakh rupees.

14.3. Section 25 deals with punishment for allowing

premises etc. to be used for commission of an offence.

Section 25 says that whoever being the owner or occupier or

having the control or use of any house, room, enclosure,

space, place, animal or conveyance, knowingly permits it to

be used for the commission by any other person of an offence

punishable under any provision of the NDPS Act, he shall be

liable for punishment provided for that offence.

31 14.4. Punishment for abetment and criminal conspiracy is

provided for in Section 29. As per sub-section (1), whoever abets

or is a party to a criminal conspiracy to commit an offence

punishable under Chapter IV of the NDPS Act shall, whether

such offence be or be not committed in consequence of such

abetment or in pursuance of such criminal conspiracy and

notwithstanding anything contained in Section 116 IPC be

punishable with the punishment provided for the offence.

Sub-section (2) clarifies that a person abets or is a party to

a criminal conspiracy to commit an offence within the

meaning of Section 29 who, in India, abets or is a party to

the criminal conspiracy to the commission of any act in a

place without and beyond India which (a) would constitute

an offence if committed within India; or (b) under the laws of

such place is an offence relating to narcotic drugs or

psychotropic substances.

14.5. Section 37 of the NDPS Act provides that

offences under the aforesaid Act are cognizable and non-

bailable. While clause (a) of sub-section (1) says that every

offence punishable under the NDPS Act shall be cognizable,

clause (b) lays down stringent conditions for bail. This clause

32 is negatively worded. Infact, the section itself starts with a

non-obstante clause. Clause (b) of sub-section (1) says that

notwithstanding anything contained in the CrPC, no person

accused of an offence under Sections 19, 24 or Section 27A

and also for offences involving commercial quantity shall be

released on bail or on his own bond unless (i) the public

prosecutor has been given an opportunity to oppose the

application for such release; and (ii) where the public

prosecutor opposes the application, the court is satisfied

that there are reasonable grounds for believing that he is not

guilty of such offence and that he is not likely to commit any

offence while on bail. Sub-section (2) clarifies that the

limitations on granting of bail in terms of clause (b) of sub-

section (1) are in addition to the limitations under the CrPC

or any other law for the time being in force, on granting of

bail. Section 37 reads thus:

37. Offences to be cognizable and non-bailable.— (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)—

(a) every offence punishable under this Act shall be cognizable;

33

(b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless—

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.

15. We may now turn to the UAP Act. Section 17 of

the UAP Act provides for punishment for raising funds for

terrorist act. It says that whoever in India or in a foreign

country, directly or indirectly, raises or provides funds or

collects funds whether from a legitimate or illegitimate

source, from any person or persons or attempts to provide

34 to or raises or collects funds for any person or persons

knowing that such funds are likely to be used, in full or in

part by such person or persons or by a terrorist organization

or by a terrorist gang or by an individual terrorist to commit

a terrorist act; whether such funds are actually used or not

for commission of such act is immaterial. Such an offender

shall be punished with imprisonment for a term which shall

not be less than five years but which may extend to

imprisonment for life and shall also be liable to fine.

15.1. There is an Explanation to Section 17. As per

Explanation (a), participating, organizing or directing in any of

the acts stated therein shall constitute an offence;

Explanation (b) says that raising funds shall include raising

or collecting or providing funds through production or

smuggling or circulation of high quality counterfeit Indian

currency; and Explanation (c) explains that raising or

collecting or providing funds in any manner for the benefit

of or to an individual terrorist, terrorist gang or terrorist

organization for the purpose not specifically covered under

Section 15 shall also be construed as an offence.

35 15.2. At this stage, we may mention that Section 15

explains and covers the entire spectrum of a terrorist act.

Sub-section (1) of Section 15, which defines ‘a terrorist act’

is extracted hereunder:

15. Terrorist Act.—(1) Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security, economic security, or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country,—

(a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause—

(i) death of, or injuries to, any person or persons;

or

(ii) loss of, or damage to, or destruction of, property; or

(iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country; or (iii-a) damage to, the monetary stability of India by way of production or smuggling or circulation of high quality counterfeit Indian

36 paper currency, coin or of any other material;

or

(iv) damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or

(b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or

(c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or an international or inter- governmental organisation or any other person to do or abstain from doing any act;

commits a terrorist act.

15.3. Offence relating to membership of a terrorist

organization is dealt with in Section 38. Sub-section (1) says

that a person, who associates himself, or professes to be

associated with a terrorist organization with intention to

further its activities, commits an offence relating to

membership of a terrorist organization. The proviso thereto

37 explains that sub-section (1) shall not apply where the

person charged is able to prove-

(a) that the organization was not declared as a

terrorist organization at the time when he

became a member or began to profess to be a

member; and

(b) that he has not taken part in the activities of the

organization at any time during its inclusion in

the First Schedule (prior to 14.08.2019 only

‘Schedule’) as a terrorist organization.

15.4. A person who commits the offence relating to

membership of a terrorist organization under sub-section (1)

shall be punishable with imprisonment for a term not

exceeding ten years or with fine or with both in terms of sub-

section (2) of Section 38.

15.5. This brings us to Section 40 of the UAP Act

which deals with the offence of raising fund for a terrorist

organization. As per sub-section (1), a person commits the

offence of raising fund for a terrorist organization who

38 with the intention to further the activity of a terrorist

organization –

(a) invites another person to provide money or other

property and intends that it should be used or has

reasonable cause to suspect that it might be used

for the purposes of terrorism; or

(b) receives money or other property and intends that

it should be used or has reasonable cause to

suspect that it might be used for the purposes of

terrorism; or

(c) provides money or other property and knows or has

reasonable cause to suspect that it would or might

be used for the purposes of terrorism.

15.5.1. As per the Explanation, a reference to provide

money or other property includes –

(a) of its being given, lent or otherwise made available,

whether or not for consideration; or

(b) raising, collecting or providing funds through

production or smuggling or circulation of high

quality counterfeit Indian currency.

39 15.6. Sub-section (2) of Section 40 says that a person

who commits the offence of raising fund for a terrorist

organization under sub-section (1) shall be punishable with

imprisonment for a term not exceeding fourteen years or

with fine or with both.

15.7. Section 43D of the UAP Act declares that there

shall be modified application of certain provisions of the

CrPC or any other law to every offence punishable under the

UAP Act. While every offence punishable under the UAP Act

shall be deemed to be a ‘cognizable offence’, every case

thereunder would be construed to be a ‘cognizable case’.

15.8. Sub-section (5) of Section 43D deals with the provision

for bail under the UAP Act. The said provision is extracted

hereunder:

43D. Modified application of certain provisions of the Code.-

*** *** *** *** ***

(5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an

40 opportunity of being heard on the application for such release:

Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.

15.9. As noticed above, sub-section (5) starts with a

non-obstante clause. It says that notwithstanding anything

contained in the CrPC, no person accused of an offence

punishable under Chapters IV and VI of the UAP Act (which

includes the three substantive allegations against the

appellant) shall, if in custody, be released on bail or on his

own bond unless the public prosecutor has been given an

opportunity of being heard on the application for such

release. The proviso says that such accused person shall not

be released on bail or on his own bond if the court, on a

perusal of the case diary or the report made under Section

173 CrPC, is of the opinion that there are reasonable

grounds for believing that the accusation against such

person is prima facie true.

41 15.10. Thus, this section engrafts a restriction on the

ordinary power of courts to grant bail in cases involving

offences under Chapters IV and VI of the UAP Act, which

concern mainly terrorist activities and membership or

support of terrorist organisations. As noticed above, the

section begins with a non-obstante clause overriding the

ordinary bail framework under the CrPC and mandates that

no accused person in custody shall be released on bail

without first affording the public prosecutor an opportunity

of being heard. The proviso to the section imposes a further

limitation. It states that bail shall not be granted if, upon a

perusal of the case diary or the police report submitted

under Section 173 of the CrPC, the court is of the opinion

that there exist reasonable grounds for believing that the

accusation against the accused is prima facie true.

15.11. Sub-section (6) clarifies that the restrictions on

granting of bail specified in sub-section (5) are in addition to

the restrictions under the CrPC or any other law for the time

being in force on granting of bail.

42

16. Section 120B IPC provides for punishment for

committing the offence of criminal conspiracy which is

defined in Section 120A. As per sub-section (1) of Section

120B, whoever is a party to a criminal conspiracy to commit

an offence punishable with death, imprisonment for life or

RI for a term of two years or upwards, shall, where no

express provision is made in the IPC for the punishment of

such a conspiracy, be punished in the same manner as if he

had abetted such offence.

16.1. Sub-section (2) says that whoever is a party to a

criminal conspiracy other than a criminal conspiracy to

commit an offence punishable as stated in sub-section (1),

shall be punished with imprisonment of either description

for a term not exceeding six months or with fine or with both.

17. The NIA Act has been enacted to constitute an

investigation agency at the national level to investigate and

prosecute offences affecting the sovereignty, security and

integrity of India, security of State, friendly relations with

foreign States and offences under Acts enacted to implement

international treaties etc. and for matters connected

therewith or incidental thereto.

43 17.1. As per Section 11, the Central Government has

been empowered to designate a Court of Session as a Special

Court after consultation with the Chief Justice of the High

Court for such area or areas or for such case or class or

group of cases as may be specified in the notification that

may be issued in this regard and published in the official

gazette.

17.2. Section 21(1) says that notwithstanding anything

contained in the CrPC, an appeal shall lie from any judgment,

sentence or order not being an interlocutory order of a

Special Court to the High Court both on facts and on law.

17.3. Sub-section (2) clarifies that every such appeal

is required to be heard by a Bench of two Judges of the High

Court. Such appeal should be disposed of as far as possible

within a period of three months from the date of admission

of the appeal.

18. Having broadly taken note of the relevant

statutory provisions, we may now consider a few of the

judgments having a bearing on the present case.

44

19. A public interest litigation was filed by a

petitioner called Shaheen Welfare Association before this

Court seeking certain reliefs for undertrial prisoners who

were charged with committing offences under the Terrorist

and Disruptive Activities (Prevention) Act, 1987 (briefly, ‘the

TADA’ hereinafter). In Shaheen Welfare Association, this

Court observed that the aforesaid petition posed the problem

of reconciling conflicting claims of individual liberty on the

one hand and the right of the community and the nation to

safety and protection from terrorism and disruptive activities

on the other hand. The conflict is generated on account of

the gross delay in the trial of persons charged under

enactments like TADA. Such delay may contribute to the

absence of proper evidence at the trial so much so that the

really guilty may have to be ultimately acquitted. It also

causes irreparable damage to innocent persons who may

have been wrongly accused of the crime and are ultimately

acquitted but who remain in jail for a long period pending

trial because of the stringent provisions regarding bail under

TADA. This Court noted that such persons suffer severe

hardships and their families may be ruined. While stressing

45 upon the need for efficient investigation of such crimes and

setting up of adequate number of Designated Courts, this

Court observed that such steps would ensure that persons

ultimately found innocent are not unnecessarily kept in jail

for long periods. The Court, therefore, stressed upon the

need for taking a pragmatic approach.

20. In Lt. Col. Prasad Shrikant Purohit Vs. State of

Maharashtra7, this Court was considering the prayer for bail

of the appellant who was charged with committing offences

under various provisions of the IPC, Explosive Substances

Act, 1908, the Arms Act, 1959, the UAP Act as well as the

Maharashtra Control of Organized Crimes Act, 1999.

20.1. While considering the bail prayer of the appellant

in that case, this Court observed that while liberty of a

citizen is undoubtedly important but that has to be balanced

with the security of the community. A balance is required to

be maintained between personal liberty of the accused and

the investigational rights of the agency. This Court

emphasized that such balance must result in minimum

7 (2018) 11 SCC 458

46 interference with the personal liberty of the accused and the

right of the agency to investigate the case.

20.2. Observing that at the stage of granting bail, a

detailed examination of the evidence and elaborate docum-

entation and merits of the case is not warranted, this Court

held that right to bail is not to be denied merely because of

the sentiments of the community against the accused. In the

facts of that case, it was found that NIA had submitted

supplementary chargesheet which was at variance with the

chargesheet filed by the Anti-Terrorist Squad (ATS) and that

the trial was likely to take a long time with the appellant in

prison for about 8 years and 8 months at that point of time.

Appellant was therefore granted bail by this Court subject to

certain conditions.

21. K.A. Najeeb is a three-Judge Bench decision of

this Court. In that case, this Court was considering an

appeal filed by the Union of India against bail granted by the

High Court of Kerala to the accused facing trial for allegedly

committing offences, amongst others, under Sections 16, 18,

18-B, 19 and 20 of the UAP Act. It was noted that the

accused in the said case was in jail for more than five years.

47 Charges were framed only on 27.11.2020 and there were 276

witnesses still left to be examined.

21.1. This Court referred to its previous decisions

wherein it has been clarified that liberty granted by Part III

of the Constitution would cover within its protective ambit

not only due procedure and fairness but also access to

justice and speedy trial. Undertrials cannot indefinitely be

detained pending trial. Once it is obvious that a timely trial

would not be possible and the accused has suffered

incarceration for a significant period of time, the court would

ordinarily be obligated to enlarge them on bail.

21.2. The Bench also critically examined the decision

of this Cout in NIA Vs. Zahoor Ahmad Shah Watali8 and

opined that the High Court in that case had virtually

conducted a mini trial and reappreciated the entire evidence

on record to overturn the Special Court’s conclusion of there

being a prima facie case of conviction and the concomitant

rejection of bail. In the process, the High Court had

determined admissibility of certain evidence which exceeded

8 (2019) 5 SCC 1

48 the limited scope of a bail petition. In Watali, this Court was

of the view that the approach of the High Court was beyond

the statutory mandate of a prima facie assessment under

Section 43D(5) of the UAP Act which was pre-mature and

would have prejudiced the trial itself. Therefore, the Bench

in K.A. Najeeb noted that it was under such circumstances

that in Watali, this Court had intervened and had cancelled

the bail.

21.3. Regarding the stringent conditions to be met

under Section 43D(5) of the UAP Act before an accused can

be granted bail, this Court held thus:

17. It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings, the courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed

49 sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.

21.4. It is crystal clear that the above was not an

equitable exception laid down only with reference to the facts

of that case, but was an authoritative declaration of a

constitutional limitation on the operation of the statutory

embargo of Section 43-D(5) itself.

21.5. While noting that the charges levelled against

the respondent were grave and a serious threat to societal

harmony, the three-Judge Bench observed that had it been

a case at the threshold, perhaps the Court would have

rejected the prayer for bail. However, keeping in mind the

length of the period spent in custody and unlikelihood of the

trial being completed any time soon, the bail granted by the

High Court was not interfered with. This Court held thus:

18. Adverting to the case at hand, we are conscious of the fact that the charges levelled against the respondent are grave and a serious threat to societal harmony. Had it been a case at the threshold, we would have outrightly turned down the

50 respondent's prayer. However, keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with no other option except to grant bail. An attempt has been made to strike a balance between the appellant's right to lead evidence of its choice and establish the charges beyond any doubt and simultaneously the respondent's rights guaranteed under Part III of our Constitution have been well protected.

22. In Javed Gulam Nabi Shaikh Vs. State of

Maharashtra9, this Court was examining the legality and

validity of an order passed by the High Court of Judicature

at Bombay by which the High Court declined to release the

appellant on bail in connection with his prosecution under

the provisions of the UAP Act. While reiterating the principle

declared by this Court in one judgment after the other that

the right to speedy trial of an offender facing criminal

charges is implicit in the broad sweep and content of Article

21 of the Constitution of India, the Bench noted that the

provisions of Section 19 of the NIA Act mandates that trial

under the said Act by a Special Court shall be held on a day

9 (2024) 9 SCC 813

51 to day basis on all working days and should have precedence

over the trial of any other case. In this regard, Special Courts

are to be designated for such offences by the Central

Government in consultation with the Chief Justice of the

High Court as contemplated under Section 11 of the NIA Act. The Bench referred to the decision of this Court in Satender

Kumar Antil Vs. CBI10 which held that the general principle

engrafted in Section 436A CrPC which requires inter alia the

accused to be enlarged on bail if the trial is not concluded

within the specified period would apply to the special

enactments as well e.g. the rigour as provided under Section

37 of the NDPS Act would not come in the way in such a

case as liberty of a person is concerned. This Court

emphasized that more the rigour, the quicker the

adjudication ought to be.

22.1. Observing that the appellant in that case was

still an accused and not a convict, the Bench held that the

overarching postulate of criminal jurisprudence that an

accused is presumed to be innocent until proven guilty

10 (2022) 10 SCC 51

52 cannot be brushed aside likely, howsoever stringent a penal

law may be. This Court held thus:

17. If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime.

23. Again in the case of Sheikh Javed Iqbal Vs. State

of Uttar Pradesh11, this Court considered the order of the

High Court of Judicature at Allahabad, Lucknow Bench

rejecting the bail application of the appellant. Be it stated

that the appellant was facing trial under various provisions

of the IPC as well as under the UAP Act.

23.1. The Bench noted that the appellant was in

custody for more than nine years and that evidence of only

two witnesses had been recorded till that point of time.

Therefore, the Court was of the opinion that a reasonable

11 (2024) 8 SCC 293

53 view could be taken that the trial was likely to take

considerable time.

23.2. As regards, right of an accused to speedy trial,

the Bench underscored such a need being an essential facet

of Article 21 of the Constitution of India. If the alleged offence

is a serious one, it is all the more necessary for the prosecution

to ensure that the trial is concluded expeditiously. Bail cannot

be denied only on the ground that the charges are very

serious though there is no end in sight for the trial to

conclude. The Bench held as under:

24. It is trite law that an accused is entitled to a speedy trial. This Court in a catena of judgments has held that an accused or an undertrial has a fundamental right to speedy trial which is traceable to Article 21 of the Constitution of India. If the alleged offence is a serious one, it is all the more necessary for the prosecution to ensure that the trial is concluded expeditiously. When a trial gets prolonged, it is not open to the prosecution to oppose bail of the accused- undertrial on the ground that the charges are very serious. Bail cannot be denied only on the ground that the charges are very serious though there is no end in sight for the trial to conclude.

54 23.3. As regards the decision of this Court in Zahoor

Ahmad Shah Watali, the Bench analysed the decision in K.A.

Najeeb where the three-Judge Bench had critically examined

the decision in Zahoor Ahmad Shah Watali. While agreeing

with the reasoning given in K.A. Najeeb qua the decision in

Zahoor Ahmad Shah Watali, the Bench observed that Zahoor

Ahmad Shah Watali has to be read and understood in the

context in which it was rendered and not as a precedent to

deny bail to an accused undertrial suffering long

incarceration with no end in sight of the criminal trial.

Relevant portion of the judgment in Shaikh Javed Iqbal reads

as under:

33. We are in respectful agreement with the reasoning given in K.A. Najeeb regarding the decision in Zahoor Ahmad Shah Watali. This decision i.e. Zahoor Ahmad Shah Watali has to be read and understood in the context in which it was rendered and not as a precedent to deny bail to an accused-undertrial suffering long incarceration with no end in sight of the criminal trial.

23.4. As to the restrictions imposed on granting bail

to an accused under the stringent provisions of the UAP Act,

this Court declared that such statutory restrictions would

55 not come in the way of a constitutional court from granting

bail to an accused if it finds that the right of the accused

under Article 21 of the Constitution of India has been

infringed. The Bench reiterated that the decision in K.A.

Najeeb was rendered by a three-Judge Bench and, therefore,

would be binding on a Bench of two Judges. It has been held

as under:

42. This Court has, time and again, emphasised that right to life and personal liberty enshrined under Article 21 of the Constitution of India is overarching and sacrosanct. A constitutional court cannot be restrained from granting bail to an accused on account of restrictive statutory provisions in a penal statute if it finds that the right of the accused-undertrial under Article 21 of the Constitution of India has been infringed.

In that event, such statutory restrictions would not come in the way. Even in the case of interpretation of a penal statute, howsoever stringent it may be, a constitutional court has to lean in favour of constitutionalism and the rule of law of which liberty is an intrinsic part. In the given facts of a particular case, a constitutional court may decline to grant bail. But it would be very wrong to say that under a particular statute, bail cannot be granted. It would run counter to the very grain of our constitutional jurisprudence. In any view of the matter, K.A. Najeeb being rendered by a

56 three-Judge Bench is binding on a Bench of two Judges like us.

23.5. In the facts and circumstances of the case, this

Court held that continued incarceration of the appellant

would not be justified and therefore granted bail to the

appellant.

24. We may also take note of the case of Arvind

Dham Vs. Directorate of Enforcement12 in which case the

appellant was granted bail, albeit in a case of economic

offence under the Prevention of Money Laundering Act,

2002. However, Section 45 of the Prevention of Money

Laundering Act, 2002 lays down stringent and restrictive

conditions for grant of bail. In that case, the appellant was

arrested on 09.07.2024. The Court noted that cognizance of

the prosecution’s complaint was yet to be taken. A total of

208 prosecution witnesses were cited. It was in that context

this Court reiterated the declaration of law made in Javed

Gulam Nabi Shaikh that if the State or any prosecuting

agency including the court concerned has no wherewithal to

provide or protect the fundamental right of an accused to

12 2026 SCC OnLine SC 30

57 have a speedy trial as enshrined under Article 21 of the

Constitution, then the State or any other prosecuting agency

should not oppose the plea for bail on the ground that the

crime committed is serious. Article 21 of the Constitution

applies irrespective of the nature of the crime. This Court

emphasized that right to speedy trial is not eclipsed by the

nature of the offence. Prolonged incarceration of an under-

trial, without commencement or reasonable progress of trial,

cannot be countenanced, as it has the effect of converting pre-

trial detention into punishment. In the facts of that case, this

Court directed the appellant to be released on bail during

pendency of the trial.

25. In a case where the accused was arrested under

various provisions of the NDPS Act i.e. Sections 8(b), 22(c),

25, 27A and 29, this Court in Chintan Rajubhai Panseriya

Vs. State of Maharashtra13 noted that though the charge

against the accused involve seizure of Mephedrone to the

extent of 2428 kilograms, petitioner had suffered custody of

more than three and a half years. While the chargesheet was

13 Special Leave Petition (Crl) No.439 of 2026 decided on 28.01.2026

58 submitted, charges were yet to be framed. There were as

many as 159 witnesses cited. While granting bail to the

petitioner, this Court observed thus:

We do not undermine the seriousness of the alleged crime. We are mindful of the fact that the prosecution is for the offence punishable under Narcotic Drugs and Psychotropic Substances Act, 1985. At the same time, we should not overlook the fact that the petitioner is in judicial custody as an under-trial prisoner past 3 years and 6 months and prosecution intends to examine as many as 159 witnesses. Examination of 159 witnesses or even 50% of the same is going to take a pretty long time. At times, we wonder why prosecution wants to examine so many witnesses and thereby prolong the trial and delay the same. We have observed in number of orders that the prosecution should examine important witnesses and try to establish its case. There is no point in multiplying the witnesses on one and the same issue.

26. There are two judgments of this Court which we

need to deal with before proceeding ahead. These two

judgments, Gurwinder Singh Vs. State of Punjab14 and

Gulfisha Fatima Vs. State (Govt. of NCT of Delhi)15, have taken

a somewhat divergent view from the clear distinctive

14 (2024) 5 SCC 403 15 2026 SCC Online SC 10

59 trajectory taken by this Court qua grant of bail even under

special enactments like TADA, UAP Act and NDPS Act.

27. In Gurwinder Singh, the appellant was charged

under various provisions of the IPC as well as under the UAP

Act and the Arms Act. Prayer for bail of the appellant was

rejected by the Special Court which was upheld by the High

Court of Punjab and Haryana whereafter the matter travelled

to this Court. Appellant was in jail for about five years and

relied upon K.A. Najeeb for bail. A two-Judge Bench of this

Court while rejecting the prayer for bail of the appellant

distinguished K.A. Najeeb in the following manner:

45. In K.A. Najeeb case, this Court was confronted with a circumstance wherein except the respondent-

accused, other co-accused had already undergone trial and were sentenced to imprisonment of not exceeding eight years therefore this Court's decision to consider bail was grounded in the anticipation of the impending sentence that the respondent-accused might face upon conviction and since the respondent-accused had already served portion of the maximum imprisonment i.e. more than five years, this Court took it as a factor influencing its assessment to grant bail. Further, in K.A. Najeeb case, the trial of the respondent-accused was severed from the other co-accused owing to his absconding and he was traced back in 2015 and was

60 being separately tried thereafter and the NIA had filed a long list of witnesses that were left to be examined with reference to the said accused therefore this Court was of the view of unlikelihood of completion of trial in near future. However, in the present case the trial is already under way and 22 witnesses including the protected witnesses have been examined.

27.1. The Bench held that Section 43-D(5) of the UAP

Act creates a standalone and rigorous limitation upon the

ordinary power of courts to grant bail and observed that,

unlike the conventional approach under criminal law where

‘bail is the rule and jail the exception,’ the legislative intent

underlying the UAP Act was the reverse, namely that ‘bail

must be rejected as a rule’, and that the courts must give

full effect thereto. The judgment formulated instead, what it

described as a ‘twin-prong test’ of bail under the UAP Act.

Interpreting Najeeb, the Court observed that the decision

could not be read as mandating bail solely on account of

prolonged incarceration.

27.2. In our view, the decision in Gurwinder inasmuch

as it refuses to be bound by Najeeb, is difficult to be followed

by us as a matter of precedent. It is plain that a judgment

61 rendered by a Bench of lesser strength is bound by the law

declared by a Bench of greater strength. Judicial discipline

mandates that such binding precedent must either be

followed or, in case of doubt, be referred to a larger Bench.

A smaller Bench cannot dilute, circumvent, or disregard the

ratio of a larger Bench.

27.3. With respect, the reliance placed by Gurwinder

on Watali is difficult to justify in light of the subsequent

treatment of Watali by this Court itself, firstly, by a Bench of

a higher strength in Najeeb, and secondly, by a coordinate

Bench of this Court in Sk. Javed Iqbal.

27.4. In Najeeb, this Court clarified that Watali arose

in a very specific factual context where the High Court had

effectively conducted a mini-trial by reappreciating evidence

and determining admissibility issues at the stage of bail and,

therefore, this Court had to step in to cancel the bail granted

by the High Court to the accused therein. The larger Bench

in Najeeb, therefore, confined Watali to the impropriety of

undertaking extensive evidentiary evaluation at the bail

stage by the High Court. Importantly, Najeeb did not treat

62 Watali as establishing a general rule of near-automatic

denial of bail under the UAP Act.

27.5. This view was followed even more explicitly in Sk.

Javed Iqbal, where this Court, speaking through one of us

(Justice Bhuyan), observed as under:

33. …This decision i.e. NIA Vs. Zahoor Ahmad Shah Watali has to be read and understood in the context in which it was rendered and not as a precedent to deny bail to an accused-undertrial suffering long incarceration with no end in sight of the criminal trial.

27.6. The position of law emerging from Najeeb and

Sk. Javed Iqbal is therefore clear: Watali cannot be invoked

to justify indefinite incarceration of the accused under the

UAP Act. For the aforesaid reasons, the attempt in

Gurwinder to read Watali as laying down a general rule of

denial of bail notwithstanding the period of incarceration is

difficult to reconcile with this Court’s own subsequent

clarification of what the ratio in Watali actually meant.

27.7. We also note that the Bench in Gurwinder

formulated the so-called ‘twin-prong test’ governing grant of

63 bail under the UAP Act. It held that the inquiry under

Section 43-D(5) must proceed in two sequential stages: first,

whether the accusation is prima facie true; and second, only

if the first question is answered in favour of the accused,

whether ordinary bail considerations, such as, flight risk,

tampering with evidence, or influencing witnesses, justify

release. If the first stage of this twin-prong test is satisfied

against the accused, bail becomes absolutely impermissible.

27.8. With respect, this test flows neither from the text

of Section 43-D(5) of the UAP Act nor from Najeeb. In fact,

on the contrary, it is in teeth of Najeeb which categorically

stated that Section 43-D(5) of the UAP Act provides no more

than another possible ground, namely that the accusations

against the accused are prima facie true, for the competent

court to refuse bail, in addition to the well-settled

considerations like possibility of tampering with evidence,

influencing the witnesses, or the accused evading the trial

by absconding etc. If this twin-prong test is accepted, the

State need only satisfy a low prima facie threshold while the

trial may continue for years with the result that pre-trial

incarceration begins to acquire a post-trial punitive

64 character and even then, no court could ever grant bail no

matter the length of period of such incarceration because the

case stood prima facie made out against the accused. A plain

reading of Najeeb will show that it was trying to prevent

precisely this possibility from arising when it cautioned that

Section 43-D(5) must not become ‘the sole metric for denial

of bail or for wholesale breach of constitutional right to speedy

trial.’

27.9. Therefore, the caution of Najeeb is that

continued incarceration cannot go unabated by a mere

discharge by the State of the prima facie standard under

Section 43-D(5). The judgment explicitly held that Section

43-D(5) will ‘melt down’ where prolonged incarceration and

delayed trial produce a violation of Article 21. The

constitutional inquiry in Najeeb therefore operated

independent of, and notwithstanding, the statutory embargo

of Section 43-D(5) in the realm of constitutional principles.

That being the case, the formulation of Gurwinder becomes

difficult to follow. Once the three-Judge Bench in Najeeb

recognised that constitutional courts retain the authority to

intervene despite the existence of a prima facie case against

65 the accused where prolonged incarceration and delayed trial

would breach Article 21, the statutory embargo of Section

43-D(5) could no longer be treated as the gateway through

which the prayer of bail must first pass.

27.10. As a matter of law, nothing further need be said

except that in any case, constitutional courts can always

intervene to grant bail despite satisfaction of prima facie

threshold under Section 43-D(5), and the section need not

control the grant of bail if the accused person’s liberty is

infringed for a prolonged period of time. The power of the

constitutional court to grant such a prayer cannot in our

view be diminished by exercise of legislative power.

27.11. The holding in Najeeb was never that mere

passage of time automatically entitles the accused to bail.

Instead, the larger Bench recognised that where

incarceration becomes unduly prolonged and the trial is

unlikely to conclude within a reasonable time, the continued

application of Section 43-D(5) becomes constitutionally

suspect given the mandate of Article 21. In that sense,

66 Najeeb articulated a constitutional limitation on the

operation of the statutory embargo of Section 43-D(5).

27.12. To reiterate, in Sheikh Javed Iqbal, this Court

while examining Gurwinder Singh observed that it was in the

peculiar facts of that case that the two-Judge Bench held

that mere delay in trial pertaining to grave offences cannot

be used as a ground to grant bail. In the case of Javed Gulam

Nabi Shaikh, this Court has declared in no uncertain terms

that Article 21 of the Constitution applies irrespective of the

nature of the crime. The fundamental right of an accused to

speedy trial is not eclipsed by the nature of the offence. This

principle has been reiterated in Arvind Dham. More

importantly, K.A. Najeeb is a three-Judge Bench decision

and, therefore, binding on a two-Judge Bench. We have

already extracted the relevant portion of the judgment in

Sheikh Javed Iqbal wherein this Court declared that K.A.

Najeeb being rendered by a three-Judge Bench is binding on

a Bench of two Judges.

28. A two-Judge of this Court considered a batch of

criminal appeals which challenged the common judgment

and order of the High Court of Delhi affirming the rejection

67 of the bail applications of the appellants by the Special

Court. In Gulfisha Fatima, the appellants had been charged

for committing various offences including offences under

Sections 13, 16, 17 and 18 of the UAP Act. All the appellants

were arrested on various dates in the year 2020 and have

been in custody since the respective dates of their arrest. It

was argued on behalf of the appellants that their prolonged

incarceration coupled with the absence of any realistic

prospect of early conclusion of trial rendered their continued

detention constitutionally impermissible. It was in that

context, that the two-Judge Bench posed the question, in

prosecutions under the UAP Act when delay and prolonged

incarceration are invoked as grounds for bail, what should

be the principled approach of a constitutional court to

examine such a plea?

28.1. The Bench referred to Article 21 and the right

to speedy trial of an accused but observed that the

constitutional promise under Article 21 is not that liberty

will be unregulated but that deprivation of liberty will not

be arbitrary, unconscionable or unfair. Thereafter, the Bench

referred to K.A. Najeeb and observed that this decision operates

68 as a protection against unconscionable detention. However, the

Bench put in a caveat that the decision in K.A. Najeeb does not

indicate as laying down a mechanical rule under which the

mere passage of time becomes determinative in every case

arising under a special statute. Such a construction whereby

delay simpliciter eclipses a statutory regime enacted by

Parliament to address offences of a special category cannot

be supported. It has been observed that the constitutional

inquiry into delay is contextual which includes the nature of

the allegation, the statutory field, the stage of the

proceedings, realistic trajectory of the trial, causes

contributing to delay and the risk attendant upon release;

delay cannot be detached from these considerations and

treated as a solitary determinant.

28.2. In the facts of that case, the Bench held that

while the constitutional concern arising from prolonged

custody is acknowledged, it does not translate into a finding

that continued detention has become punitive or

unconscionable solely by reason of delay. The prolonged

custody, though a matter of concern, does not operate as an

automatic ground for grant of bail where the statutory

69 threshold continues to be attracted. At such a stage, the

court is required to examine whether, notwithstanding delay,

continued detention remains constitutionally justified

having regard to the statutory context and the facts of the

case. Such considerations would include gravity of the

alleged offence in its statutory setting, the role attributed to

the accused, prima facie strength of the accusation, integrity

of the trial process, the risks associated with release etc.

28.3. The two-Judge Bench, thereafter, held that K.A.

Najeeb must be understood as a principled safeguard against

unconscionable detention. Though prolonged incarceration is

a matter of serious constitutional concern and carries great

weight, it is not, however, the sole determinant. The court

must consider in totality whether continued detention has

become constitutionally unjustifiable, having regard to the

role attributed, the statutory context, the limited prima facie

material, the trajectory of the trial, the causes of delay and

the availability of intermediate remedies.

28.4. The Bench further held that to read K.A. Najeeb

as mandating bail solely on account of prolonged

incarceration, irrespective of the statutory context or the

70 nature of the allegations, would be to attribute to the

decision a consequence it neither intended nor supports.

Therefore, K.A. Najeeb cannot be used as a mathematical

formula of universal application.

28.5. In the facts and circumstances of the case, this

Court granted bail to five of the seven appellants but denied

the same to two of the appellants taking the view that while

the period of incarceration undergone by the two appellants

is substantial, on the present record, their continued

detention has not crossed the threshold of constitutional

impermissibility so as to override the statutory embargo of

Section 43D(5) of the UAP Act.

28.6. Underlying that the Court is mindful that pre-

trial detention, even when justified by the statute, cannot be

permitted to continue without regard to the progress of the

trial, the Bench opined that on a completion of the

examination of the protected witnesses relied upon by the

prosecution or upon expiry of the period of one year from the

date of the said order, whichever is earlier, the two appellants

would be at liberty to renew their prayer for bail before the

jurisdictional court.

71

29. We have serious reservations on various aspects

of the judgment in Gulfisha Fatima, including foreclosing the

right of the two appellants to seek bail for a period of one

year. The judgment in Gulfisha Fatima would have us believe

that Najeeb is only a narrow and exceptional departure from

Section 43-D(5) justified in extreme factual situations. It is

this hollowing out of the import of the observations in Najeeb

that we are concerned with.

30. No reading of Najeeb suggests that the mere

passage of time, divorced from all surrounding circumstances,

mechanically entitles an accused to release. The real concern

addressed in Najeeb lay elsewhere. This Court was concerned

with the manner in which Section 43-D(5) was, in practice,

being deployed as an almost conclusive basis for denial of

bail notwithstanding extraordinary delay in trial and

prolonged incarceration. It is precisely for that reason that

this Court observed that the ‘rigours’ of Section 43-D(5)

would ‘melt down’ where there is no likelihood of the trial

being completed within a reasonable time and where the

period of incarceration undergone has already exceeded a

substantial part of the prescribed sentence. This Court in

72 Najeeb cautioned that such an approach was necessary to

prevent provisions like Section 43-D(5) from being used as

‘the sole metric for denial of bail or for wholesale breach of

the constitutional right to speedy trial.’

31. In K.A. Najeeb, a three-Judge Bench of this Court

was clear and unequivocal in holding that once it is obvious

that a timely trial would not be possible and the accused has

suffered incarceration for a significant period of time, the

courts would ordinarily be obligated to enlarge the accused

on bail. We have already extracted supra paragraph 17 of the

said judgment where it has been clearly stated that the

presence of statutory restrictions like Section 43D(5) of the

UAP Act per se does not oust the ability of the constitutional

courts to grant bail on grounds of violation of Part III of

the Constitution. Whereas at the commencement of the

proceedings, the courts are expected to appreciate the

legislative policy against grant of bail but the rigors of such

provisions will ‘melt down’ where there is no likelihood of the

trial being completed within a reasonable time and the period

of incarceration already undergone has exceeded a

substantial part of the prescribed sentence. In the facts of

73 that case, this Court observed that it was conscious of the

fact that the charges levelled against the accused were grave

and a serious threat to societal harmony and had it been the

case at the threshold, perhaps the Court would have

outrightly rejected such a prayer. However, keeping in mind

the duration of incarceration and the unlikelihood of the trial

being completed in the near future, the accused had to be

enlarged on bail.

32. The reasoning first in Gurwinder and then in

Gulfisha Fatima, appears to proceed against something

invented and then destroyed. We are constrained to reiterate

that Najeeb was not warning courts against treating

incarceration as the sole factor favouring bail. Instead, it was

warning against treating the statutory embargo as the sole

factor justifying continued detention by ignoring constitutional

principles. Therefore, the subsequent reading that Najeeb does

not create an automatic entitlement to bail on account of

delay answers a proposition that Najeeb itself never

advanced.

74

33. The emphasis in Najeeb was constitutional in

nature: it was directed towards preventing Section 43-D(5)

from overpowering Article 21 considerations in cases of gross

delay and prolonged incarceration. The constitutional force

of Najeeb lies in its restoration of the hierarchy between a

statute, namely, the UAP Act, and the Constitution. Section

43-D(5) remains subordinate to Article 21 at all times and a

constitutional court need not hold back bail to the accused

in the garb of Section 43-D(5). As this Court held in Sk.

Javed Iqbal :

31. … Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the courts would ordinarily be obligated to enlarge them on bail.

34. Therefore, Jalaluddin Khan Vs. Union of India16,

is a timely warning to the courts. It says that when a case is

made out for grant of bail, the courts should not have any

hesitation in granting bail. The allegation of the prosecution

may be very serious; but the duty of the courts is to consider

a case for grant of bail in accordance with law. ‘Bail is the

16 (2024) 10 SCC 574

75 rule and jail is the exception’ is a settled law. The Bench

cautioned that if the courts start denying bail in deserving

cases, it will be a violation of the rights guaranteed under

Article 21 of our Constitution.

35. The often invoked phrase ‘bail is the rule and jail

is the exception’ is not merely an empty statutory slogan

flowing from the CrPC as Gurwinder has stated. It is a

constitutional principle flowing from Articles 21 and 22 of

the Constitution and the presumption of innocence which is

the cornerstone of any civilised society governed by the rule

of law. Statutes may undoubtedly calibrate the manner in

which that principle is applied, particularly in cases

involving national security or terrorist offences for which the

UAP Act is meant, but those cannot altogether invert the

constitutional relationship between liberty and detention.

The statutory embargo of Section 43-D(5) must remain a

circumscribed restriction that operates subject to the

guarantee of Articles 21 and 22 of the Constitution.

Therefore, we have no manner of doubt in stating that even

under the UAP Act, ‘bail is the rule and jail is the exception’;

76 of course, in an appropriate case, bail can be denied having

regard to the facts of that particular case.

36. As we have noted above, several subsequent

decisions of this Court, rendered after Gurwinder, have

continued to apply the approach articulated in Najeeb in

granting bail under the UAP Act on grounds of prolonged

incarceration, gross delay in conclusion of trial, and the

absence of any realistic possibility of the trial concluding in

the near future.

37. The logic underlying all these judgments traces

back to Najeeb, which is now the law of the land governing

the grant of bail under the UAP Act in a situation of

prolonged detention. In that context, it is noteworthy that

while Gulfisha Fatima relied on Gurwinder to adopt a

narrower reading of Najeeb, neither Gulfisha Fatima nor

Gurwinder engage with this subsequent line of authority of

case law.

38. Thus it is clear beyond doubt that the preference

for bail, or the often invoked principle ‘bail is the rule and jail

is the exception’ flows from the constitutional primacy of

77 personal liberty under Article 21 and, therefore, cannot be

displaced by legislation.

39. In that spirit, we make it clear that Najeeb is

binding law entitled to the protection of stare decisis. It

cannot be diluted, circumvented, or disregarded by trial

courts, High Courts or even by Benches of lower strength of

this Court.

40. We do not want to join issue any further with the

two-Judge Bench either in Gurwinder Singh or in Gulfisha

Fatima. As noted supra, Gurwinder Singh has already been

explained in Sheikh Javed Iqbal and in Javed Gulam Nabi

Shaikh, reiterated in Arvind Dham, this Court has

categorically held that Article 21 applies irrespective of the

nature of the offence. Ideally, more serious the accusations

are, the speedier the trial should be.

41. However, we need to keep in mind one important

over-riding consideration and we reiterate this. While

Gurwinder Singh and Gulfisha Fatima are by Benches of two

Hon’ble Judges, K.A. Najeeb is a judgment by three Hon’ble

Judges. It is evident from a reading of the two judgments in

78 Gurwinder Singh and Gulfisha Fatima that the two-Judge

Bench has made a clear departure from the ratio laid down in

K.A. Najeeb. Judicial discipline and certainty demands that

Benches of smaller strength are mindful of the decisions

rendered by larger Benches and are bound to follow the same.

If the smaller Benches are unable to agree with the ratio laid

down by the larger Bench then the proper and the only course

of action open is to make a reference to the Hon’ble Chief

Justice of India for placing the matter for consideration by a

still larger Bench. Being in a combination of two Judges, we are

bound by the ratio laid down by the three-Judge Bench in K.A.

Najeeb. We say this and no more.

42. There is one more good reason why we should

follow K.A. Najeeb. For this, let us refer to a few statistics. In

response to a query by a Member of Parliament as to the total

number of persons arrested and convicted under the UAP

Act during the last 5 years with state-wise breakup, the

Minister of State in the Ministry of Home Affairs, Government

of India informed the Lok Sabha on 02.12.2025 that ‘police’ and

‘public order’ being State subjects under the Seventh Schedule to the

Constitution of India, the primary responsibility for prevention,

79 detection, registration, investigation and prosecution of crimes

including those under the UAP Act lies with the State Government and

the Union Territory administrations. As per the data compiled by

the National Crime Records Bureau (NCRB), the latest

published data available is till the year 2023. The Hon’ble

Minister furnished the state-wise and year-wise details of

persons arrested and convicted under the UAP Act for the

years 2019 to 2023.

42.1. From the details furnished, the following

particulars regarding the number of persons arrested and

convicted in India under the UAP Act during the period 2019-

23 emerges:

Under the UAP Act (All India figures)

YEAR PERSONS PERSONS PERCENTAGE ARRESTED CONVICTED OF CONVICTION 2019 1948 34 1.75 2020 1321 80 6.06 2021 1621 62 3.82 2022 2636 41 1.56 2023 2914 118 4.05

42.2. In so far the Union Territory of Jammu and

Kashmir is concerned, the statistics read as under:

80

Under the UAP Act (Jammu and Kashmir)

YEAR PERSONS PERSONS PERCENTAGE ARRESTED CONVICTED OF CONVICTION 2019 227 0 0 2020 346 2 0.58 2021 645 0 0 2022 1238 11 0.89 2023 1206 10 0.83

42.3. Thus, from the aforesaid figures, it is evident that the

country-wide percentage of conviction under the UAP Act for the

five years comprising the period 2019-23 hovers between 2% to

6%. In other words, there is 94% to 98% possibility of acquittal

in such cases in the country. When it comes to the Union

Territory of Jammu and Kashmir, the percentage of conviction

is abysmal, to say the least. For the aforesaid period, the annual

rate of conviction is always less than 1%. It means that at the

end of the trial, there is 99% possibility of acquittal in such

cases. With these kind of statistics staring at our face, the

question is, should we continue the detention of the appellant

or defer the consideration to a later stage, simply because the

charges are serious?

43. This brings us to the Constitution Bench decision

of this Court in the case of High Court Bar Association. We

81 are referring to this judgment because of a submission made

by Mr. Sanjay, learned Additional Solicitor General that

endeavor would be made to complete the trial within a period

of one year and if the trial does not complete within such a

period, then the Court may grant him bail after one year.

43.1. In High Court Bar Association, the Constitution

Bench was called upon to decide the following two questions:

(a) Whether this Court, in the exercise of its

jurisdiction under Article 142 of the Constitution of

India, can order automatic vacation of all interim

orders of the High Courts of staying proceedings of

civil and criminal cases on the expiry of a certain

period?

(b) Whether this Court, in the exercise of its

jurisdiction under Article 142 of the Constitution of

India, can direct the High Courts to decide pending

cases in which interim orders of stay of proceedings

has been granted on a day-to-day basis and within a

fixed period?

82

43.2. While dealing with the second question, Justice

Oka speaking for the Bench after referring to earlier

decisions of this Court opined that in the ordinary course, a

constitutional court should not exercise the power to direct

disposal of a case before any district or trial court within a

time span. He noted that in many cases, while rejecting bail

petitions, a time limit is fixed for disposal of trial on the

ground that the accused has undergone incarceration for a

long time without realizing that the concerned trial court

may have many pending cases where the accused are in jail

for longer periods. Therefore, constitutional courts should

not normally fix a time bound schedule for disposal of cases

pending in any court. Question of giving out of turn priority

to certain cases should be best left to the courts concerned.

Only in exceptional circumstances, an order fixing outer

time limit for disposal of cases should be passed to meet

extraordinary situations. Another reason for adopting such

an approach is that not every litigant can approach the

constitutional courts. Those litigants who can afford to

approach the constitutional courts should not be allowed to

take any undue advantage by getting an order directing out

83 of turn disposal of their cases while other litigants patiently

wait in the queue for their turn to come. Sounding a note of

caution, this Court declared that courts which are superior

in the judicial hierarchy should not interfere with the day-

to-day functioning of the other courts by directing that only

certain cases should be decided out of turn within a time

frame. Relevant portion of the aforesaid decision are

extracted as under:

41. Apart from dealing with huge arrears, our trial courts face the challenge of dealing with a large number of cases made time-bound by our constitutional courts. Therefore, in the ordinary course, the constitutional courts should not exercise the power to direct the disposal of a case before any District or trial court within a time span.

In many cases, while rejecting a bail petition, a time-limit is fixed for disposal of trial on the ground that the petitioner has undergone incarceration for a long time without realising that the trial court concerned may have many pending cases where the accused are in jail for a longer period. The same logic will apply to the cases pending before the High Courts. When we exercise such power of directing High Courts to decide cases in a time-bound manner, we are not aware of the exact position of pendency of old cases in the said courts, which require priority to be given. Bail petitions remain

84 pending for a long time. There are appeals against conviction pending where the appellants have been denied bail.

42. Therefore, constitutional courts should not normally fix a time-bound schedule for disposal of cases pending in any court. The pattern of pendency of various categories of cases pending in every court, including High Courts, is different. The situation at the grassroots level is better known to the Judges of the courts concerned. Therefore, the issue of giving out-of-turn priority to certain cases should be best left to the courts concerned. The orders fixing the outer limit for the disposal of cases should be passed only in exceptional circumstances to meet extraordinary situations.

43. There is another important reason for adopting the said approach. Not every litigant can easily afford to file proceedings in the constitutional courts. Those litigants who can afford to approach the constitutional courts cannot be allowed to take undue advantage by getting an order directing out- of-turn disposal of their cases while all other litigants patiently wait in the queue for their turn to come. The courts, superior in the judicial hierarchy, cannot interfere with the day-to-day functioning of the other courts by directing that only certain cases should be decided out of turn within a time-frame. In a sense, no court of law is inferior to the other. This Court is not superior to the High Courts in the

85 judicial hierarchy. Therefore, the Judges of the High Courts should be allowed to set their priorities on a rational basis. Thus, as far as setting the outer limit is concerned, it should be best left to the courts concerned unless there are very extraordinary circumstances.

44. The above view has been reiterated by a two-

Judge Bench of this Court in Rup Bahadur Magar. While

granting bail to the appellants who had at that point of time

undergone incarceration for a period of 2 years 9 months

with large number of witnesses still to be examined, it has

been held as under:

7. We have repeatedly observed that while rejecting bail applications, the High Courts are passing the orders directing disposal of trials within a time schedule. Apart from the fact that such directions are contrary to the law laid down by the Constitution Bench in the case of High Court Bar Association, such orders put undue pressure on the Trial Courts which are already flooded with a lot of work. Unless the factual situation is extra ordinary and exceptional, the High Courts should refrain from passing such orders, as held by the Constitution Bench in the aforesaid judgment.

86

45. Having surveyed and deliberated upon the

relevant statutory provisions and the case laws, we may now

deal with the case of the appellant. It was vehemently argued

by learned senior counsel for the appellant that four of the

co-accused have been granted bail; one by this Court and

three by the High Court. Therefore, he submits that there is

no reason why the appellant should continue to languish in

jail. Let us briefly examine the orders whereby bail has been

granted to the four co-accused.

46. In Romesh Kumar, the appellant was an officer of

Narcotics Control Bureau (NCB). He was allegedly entrusted

with under-cover duties but is now facing trial for offences

punishable under Sections 8 and 21 of the NDPS Act as well

as under Sections 17, 18 and 19 of the UAP Act read with

Sections 100, 120-B and 121 of the IPC as accused No.11.

While considering the prayer for bail of the appellant, this

Court noted that he was arrested on 01.03.2021 and was in

custody since then; thus, he was in custody for a little over

03 years 11 months. Out of the 361 prosecution witnesses,

only six witnesses had been examined till that point of time.

Therefore, this Court took the view that the trial was not

87 likely to be concluded within a reasonable period. This Court

examined the statement of the approver Showkat Ahmad

Parrey which was recorded on 16.11.2023 under Section 164

Cr.P.C. and found that there was no material to implicate the

appellant. Though there was alleged recovery of Rs.

91,01,000.00 from the appellant, this Court found that

nothing was shown to link the said money with the offence.

Following the ratio laid down in K.A. Najeeb, this Court

granted bail to the appellant Romesh Kumar.

47. Islam Ul Haq Peer is accused No. 3. He was in jail

for a little over 4 years 8 months. He was granted bail by the

High Court vide the order dated 18.02.2025. In Islam Ul Haq

Peer, the High Court noted that the appellant is the real

brother of a co-accused. The allegation against the appellant

is that his brother gave him a packet of narcotics (3 Kgs of

heroin) which he had concealed in his house. The

contraband was subsequently seized following the statement

of the appellant made under Section 27 of the Evidence Act.

While prima facie doubting the legality and validity of the

statement of the appellant made under Section 27 of the

88 Evidence Act, the High Court granted bail to accused No. 3

and held as under:

16. This Court put forward a question to the learned counsel for the Union of India that besides his 27 statement what prima-facie evidence was in the possession of the prosecution to show the mens rea of the appellant that he was in conscious possession of the contraband? As mere possession will not be considered as an offence unless it was coupled with the knowledge of what was being possessed.

17. Learned counsel for the Union of India has stated that besides 27 Memorandum, there is no independent evidence to establish, prima-facie, the mens rea of knowledge being possessed by the appellant herein with regard to the material he had concealed.

18. Taking into consideration, the argument put before this Court and the material placed on record, undisputed by the Union of India, and on a purely prima-facie standard of appreciation, this Court is of the opinion that the appeal be allowed.

48. Accused No. 12 also sought bail which was

rejected by the Special NIA Court. However, the High Court

in Mudasir Ahmad Dar, set aside the order of the Special NIA

Court and granted bail to accused No. 12 Mudasir Ahmed

Dar. Be it stated that the said appellant was arrested on

89 01.03.2021 and was in custody for a period of 4 years 6

months at the time of his release. The accusation against

Mudasir Ahmed Dar is that he was actively engaged as a

narcotic drug peddler providing logistic support to the co-

accused. The High Court noted that there is no material to

suggest that the appellant himself indulged in the sale of

narcotics, much less to identify to whom such sale was

effected or whether he realised any funds therefrom.

Distinguishing Gurwinder Singh, the High Court relied upon

K.A. Najeeb and granted bail to the appellant. While granting

bail, the High Court held as under:

16. We are, thus, of the considered view that on examination of material on record, we find there are no reasonable grounds for believing that the accusation against the appellant are prima-facie true.

We are conscious of the fact that at the stage of grant or refusal of bail, the scope of inquiry is limited and there cannot be any sifting of evidence. But given the material available on record, the appellant deserves to be released on bail and the trial court in our considered view failed to exercise discretion of bail in favour of appellant as the order of rejection of bail does not proceed on sound reasoning.

90

49. One more accused i.e. accused No. 13 Amin

Allaie has also been granted bail by the High Court. He was

arrested on 01.03.2021 and when he was granted bail on

02.04.2026, he was under detention for a period of 5 years 1

month. In Amin Allaie, the High Court held thus:

9. Applying the aforesaid settled principles to the facts of the present case, it emerges that no recovery has been effected from the appellant, nor is there any material to demonstrate his conscious possession, direct participation, or involvement in any transaction leading to the recovery of narcotic substances from other co-accused. The entire case against him rests upon the statement of an approver and alleged telephonic contacts, without any corroborative evidence such as financial transactions, recovery, or overt acts attributable to him. Even the role attributed to the appellant, as borne out from the charge-sheet, appears to be peripheral and inferential in nature.

10. In such circumstances, even if the prosecution material is taken at its face value, the same does not satisfy the threshold laid down in Watali, as there are no reasonable grounds to believe that the accusations against the appellant are prima-facie true. The absence of recovery, lack of direct nexus, and the reliance upon weak evidentiary material such as confessional statements further dilute the prosecution case. The continued incarceration of the appellant, particularly in the backdrop of prolonged custody,

91 would be inconsistent with the mandate of Article 21 of the Constitution, as recognized in K.A. Najeeb.

50. The core allegation against the appellant who is

the accused No. 2 is that he is involved in narco-terrorism

activities. He had confessed before the police on 11.06.2020

that he had taken heroin from accused No. 2 Abdul Momin

Peer, who was the driver of the white-coloured vehicle from

where a black bag was found containing cash and

contraband. It is reported that appellant had disclosed

before the Special Investigation Team (SIT) that he had taken

heroin from accused No. 2 and that he could recover the

same by pointing out.

50.1. On information provided by the appellant, cash

amounting to Rs. 35,17,970.00 and three packets of heroin

totaling 3.2 kgs were recovered from the bedroom of accused

No. 1.

50.2. The phone numbers appearing in the two mobile

phones of the appellant which were seized by the police

establish his linkage with LeT/HM operatives like Wahid

Geelani.

92 50.3. Appellant is a close relative of Mohd. Qasim

Geelani and Mohd. Yusuf Geelani, who are currently in

Pakistan, and who are commanders of the proscribed

terrorist organization LeT.

50.4. In this connection, appellant had visited

Pakistan in the years 2016 and 2017 and had met one

Saifudeen @ Saifulla, a brother of Wahid Geelani.

50.5. PW-33, protected witness X-7, in his statement

before the police, had mentioned about the involvement of

the appellant i.e. accused No. 2 in drug racketeering and

association with LeT/HM operatives based in Pakistan.

50.6. Even accused No. 8, who has turned approver,

has named the appellant as providing money to LeT.

50.7. The allegation is that the appellant i.e. accused

No. 2 worked as an over-ground worker for LeT and HM.

50.8. It is also the case of the prosecution that

appellant operated through his daughter Ms. Syeda Faiqa

Andrabi, who had a bank account at J & K Bank,

Zachaldara, Kupwara. She is also the sister of accused No.

5 and sister-in-law of accused No. 1. Her aforesaid bank

93 account showed very high transactions in the year 2018

though she did not have any source of income being in the

age group of 18 to 19 years. She herself stated that the

account was being operated by her father and by her

brother.

51. To the aforesaid allegations, the response of the

appellant is that there is no material on record to show even

a prima facie case against the appellant under the NDPS Act.

The recovery of cash and contraband allegedly on

11.06.2020 from the bedroom of accused No. 1 was already

reported in the public domain as having been recovered from

the said accused No. 1 on 10.06.2020 at Bemina, Srinagar.

In any view of the matter, there is no recovery either from

the person of the appellant or from any premises used by the

appellant as his residence or working place.

51.1. The charge of terror cannot stand independent

of the charge under the NDPS Act. When there is no evidence

of sale or purchase of narcotics nor is there any admissible

evidence of recovery of narcotics or funds from the appellant,

not to speak of having found the appellant in conscious

possession of any narcotic; the whole premise of terror

94 funding charges against the appellant under the UAP Act

collapses. The High Court has also noted that the factum of

concealment of hard cash, on the face of it, does not emanate

from the disclosure of the appellant. However, according to

the High Court, it would be premature at this stage to hold

that the said disclosure statement made by the appellant

has no evidentiary value.

51.2. According to the appellant, he has no link with

either Mohd. Qasim Geelani or Mohd. Yusuf Geelani. The

allegation of having such link has been constructed on the

basis of appellant’s alleged confession made before the police

which is inadmissible in evidence. That apart, there has

been no follow-up investigation in this regard, post his

alleged confession before the police. In any view of the

matter, Mohd. Qasim Geelani is a government employee

working as an Assistant Lineman in the Jal Shakti

Department, Handwara. On the other hand, in so far Mohd.

Yusuf Geelani is concerned, he passed away in the year

2000.

95 51.3. Appellant has also denied having any linkage

with LeT/HM operative Wahid Geelani. The charge of the

appellant having such a link is on the basis of the

explanation memo of phone contacts which is based on the

disclosure of the appellant himself before the police. Such an

explanation memo is inadmissible in evidence, being in the

nature of a confession before the police; thus, squarely

prohibited under Section 25 of the Indian Evidence Act,

1872. Other than appellant’s confession before the police,

there is no other material to show any linkage of the

appellant with any terrorist. Curiously, one of the phone

numbers mentioned in the explanation memo of phone

contacts is actually a toll-free customer care number of Q

Mobile, a network service provider, in Karachi, Pakistan. The

CDR report of the mobile phones seized from the appellant

reveals no terrorist connection; there are no phone calls

between the appellant and any terrorist. To this, the

observation of the High Court is that the assertion of the

counsel for the appellant may have some substance; however,

since the trial is underway the prosecution is yet to

96 demonstrate and lead evidence regarding culpability of the

appellant.

51.4. The High Court has recorded in the impugned order

that from the deposition of the approver Showkat Ahmad Parrey,

nothing incriminating has come up against the appellant.

However, the respondents contended that notwithstanding the

deposition of the approver, there are still material witnesses yet

to be examined. Therefore, at this stage it would be premature

to contend that the accusations against the appellant are

untrue.

51.5. Appellant is not an over-ground worker of any

terrorist organization. An alleged certificate in this regard

was issued just a day before filing of the chargesheet by the

same Deputy Commissioner, who in the dossier prepared in

connection with the preventive detention matter of the

appellant, had described him as a political worker. Infact, it

is admitted that appellant has strong political views

supporting the Jammu and Kashmir People’s Conference,

which is a registered mainstream political party.

97 51.6. In so far the allegation of the appellant having

visited Pakistan during 2016-2017, it is stated that he had

visited the said country to meet his relatives who live across

the border. He had travelled on proper and valid documents

through the official Attari-Wagha border observing all travel

formalities. He has also returned back to India through the

same station.

52. We are at the stage of considering the prayer for

bail of the appellant. At this stage, it is neither desirable nor

permissible to analyse and consider the merits of the

accusations made against the appellant. The prosecution

will have to prove its case against the appellant beyond all

reasonable doubt in the trial. However, we have broadly

noted the core charges against the appellant only with a view

to contextualize the bail prayer of the appellant without

expressing any opinion on the merits of those charges.

53. On due consideration, we are of the view that

appellant has made out a case for grant of bail during

pendency of the trial. We say so for the following reasons.

98 53.1. There is no recovery of cash and contraband

from the person of the appellant or from the premises used

by the appellant either as his residence or place of work.

53.2. All statements implicating the appellant have

been made before the police including the confessions

allegedly made by the appellant himself which prime facie

are self-incriminating and hit by Section 25 of the Evidence

Act, 1872.

53.3. Appellant has no prior antecedents of being

connected with narcotic trade or in terrorist activities. At

least, no such material has been placed on record.

53.4. On the contrary, it is stated that the appellant is

an ardent advocate of the constitutional, federal and

democratic set-up of India. He is a supporter of Jammu and

Kashmir People’s Conference, a registered mainstream

political party. Following the abrogation of Article 370 from

the Indian Constitution, appellant was taken into preventive

detention on 07.08.2019 under the Jammu and Kashmir

Public Safety Act, 1978. In the dossier prepared in

connection with his preventive detention, it was mentioned

99 that appellant is a political activist associated with the

People’s Conference and has a close connection with the

people.

53.5. It is also a fact that appellant was a government

employee serving as Village Level Worker at Kupwara under

the Rural Development Department, Government of Jammu

and Kashmir.

53.6. Earlier, appellant had sought for interim bail on

medical grounds. The Special NIA Court vide the order dated

04.01.2022 had granted interim bail to the appellant till

10.03.2022, on which date appellant surrendered before the

said court. Thus, he had not misused the interim bail

granted to him.

53.7. We have already noted that appellant was

arrested in connection with the present case on 11.06.2020

and he has been in custody since then for more than 5 years

11 months. As per the prosecution, there are more than 350

witnesses still to be examined. It is thus clear that

conclusion of the trial in the near future is well-nigh

100 impossible. In such a case, K.A. Najeeb will apply with full

force.

53.8. The above view is further fortified by the poor

conviction rate in cases involving the UAP Act, with chances

of acquittal more than 90 to 95% whether it is on the basis

of all India figures or Jammu and Kashmir.

54. That being the position, we direct that appellant

shall be released on bail on such terms and conditions as

the Special NIA Court may deem fit and proper. For this

purpose, the appellant shall be produced before the Special

NIA Court as early as possible but at any rate not later than

7 days from today.

55. In addition to such terms and conditions that the

Special NIA Court may deem fit and proper to impose, we

also direct that the appellant shall deposit his passport

before the Special NIA Court and shall appear before

Handwara Police Station once every fortnight (15 days) on

the date and time that may be fixed by the police authorities

of Handwara Police Station. He shall continue to cooperate

101 with the ongoing trial and shall not threaten or try to

influence any of the witnesses.

56. We are aware that this bail order has become

quite long. However, we feel that it has become necessary to

clarify and reiterate the legal position following K.A. Najeeb

lest there be any confusion in this regard.

57. Before parting with the record, it needs to be

mentioned that though this judgment is authored by one of

us (Ujjal Bhuyan, J.), it is based on invaluable inputs of B.V.

Nagarathna, J.

58. Appeal is accordingly allowed. However, there

shall be no order as to cost.

……………………………J. [B.V. NAGARATHNA]

……………………………J. [UJJAL BHUYAN] NEW DELHI;

MAY 18, 2026.

102