After Nearly 5 Years In Custody, Delhi HC Lets UAPA Accused Renew Bail Plea, With Only 21 Of 356 Witnesses Examined

The appellant, accused No. 24 in an NIA prosecution alleging a conspiracy involving proscribed terrorist organisations, appealed under Section 21(4) of the NIA Act against the rejection of his bail application under the UAPA.

He had been in custody since 16 December 2021.

After the impugned order, the Trial Court framed charges under Sections 120B and 121A of the IPC and Section 18 of the UAPA, while discharging him of certain other charges; by the time of the appeal, 21 of the 356 prosecution witnesses had been examined.

The prosecution relied on allegations concerning the supply of grenades, possession and transfer of AK-47 bullets, terror funding, and other assistance to terrorist networks.

The appellant disputed the reliability and sufficiency of that material and relied principally on prolonged pre-trial incarceration.

Section 43D(5) of the UAPA restricts bail where, on a perusal of the case diary or police report, the court finds reasonable grounds to believe that the accusation is prima facie true.

Section 21(4) of the NIA Act provides the appellate route invoked in this case.

The constitutional guarantee of liberty under Article 21 requires courts to consider whether prolonged pre-trial detention and delay in trial justify release, notwithstanding statutory restrictions on bail; the Court referred to Union of India v. K.A. Najeeb on this principle.

Relying on Shoma Kanti Sen v. State of Maharashtra, the Court recognised that an appellate court may consider material arising after the decision under appeal, including subsequent charge-sheet material or developments.

Whether delay warrants bail remains a case-specific inquiry, including consideration of the evidence yet to be recorded and the risk of influencing witnesses.

The Court accepted that it could consider subsequent developments, but concluded that the effect of the charge-framing order and the testimony of PW-2 (X-1)—who alleged that the appellant supplied him a bag containing grenades—should first be assessed by the Trial Court.

Other material witnesses, including X-12 and prosecution witnesses concerning alleged SIM cards, money and a vehicle, had yet to testify; the Trial Court was better placed to assess whether they could be examined promptly and whether the appellant might influence them if released.

Although the Court found merit in the concern that the appellant’s prolonged custody and the examination of only 21 out of 356 witnesses raised an Article 21 issue, it did not determine that delay alone required immediate release.

It also left the appellant’s medical ground to be raised before the Trial Court, as it had not been advanced there earlier.

It granted the appellant liberty to renew his bail application before the Trial Court, which must consider subsequent trial developments and the effect of continued detention, independently of observations in the impugned order or appellate judgment.

Any renewed application is to be decided expeditiously.

No order as to costs was made.