Delhi High Court grants bail to two UAPA accused after nearly five years in custody, citing prolonged trial and Article 21 rights

The appeals were filed under Section 21(4) of the National Investigation Agency Act, 2008, challenging orders refusing bail in SC No. 2/2022, NIA v. Tariq Ahmad Dar & Ors., arising from RC No. 29/2021/NIA/DLI registered for offences under Sections 120B, 121A, 122 and 123 IPC and Sections 18, 18A, 18B, 20, 38 and 39 of the UAPA.

Sobiya Aziz, arrayed as accused no. 17, was arrested on 22.10.2021. The prosecution alleged that she conspired with terrorist associates, supported active cadres, transported a militant, possessed diaries containing Islamic State and jihadi material, and had an Islamic State flag at her residence.

She was subsequently discharged of offences under Sections 20, 38 and 39 UAPA, but remained charged under Sections 120B and 121A IPC and Section 18 UAPA.

Kamran Ashraf Reshi, arrayed as accused no. 11, was arrested on 20.10.2021 at approximately 21 years of age. The allegations against him included association with online propaganda groups linked to terrorist organisations, contact with Pakistan-based handlers, possession and circulation of threatening posters, association with an active Hizbul Mujahideen terrorist, and attendance at radicalising lectures.

At the time of hearing, both appellants had been incarcerated for almost five years. Only 21 of the 359 prosecution witnesses had been examined, and the Court found that the trial was unlikely to conclude in the near future.

Sobiya also relied on her status as a woman, medical conditions, and bail granted to several co-accused.

Whether the appellants could be released on bail despite the statutory embargo under Section 43D(5) of the UAPA, in view of their prolonged pre-trial incarceration and the unlikelihood of the trial concluding within a reasonable time?

Whether the prosecution material disclosed a prima facie case and a real, individualised nexus between each appellant and the alleged terrorist or unlawful activity sufficient to justify continued detention?

Whether Sobiya Aziz’s status as a woman, her medical conditions, and the bail granted to similarly placed co-accused supported the grant of bail?

Whether the apprehension of witness intimidation justified continued custody in the absence of a demonstrated link between the alleged threat and Sobiya Aziz?

The Court applied Section 21(4) of the NIA Act, 2008, governing appeals against bail orders, and Section 43D(5) of the UAPA, under which bail may be refused where the accusation is prima facie true.

It relied principally on Union of India v. K.A. Najeeb, holding that statutory restrictions under Section 43D(5) do not exclude constitutional courts’ power to grant bail where prolonged incarceration and the absence of a realistic prospect of timely trial render continued detention inconsistent with Article 21.

The Court also considered Gulfisha Fatima v. State (NCT of Delhi), which requires a contextual and accused-specific assessment of delay, the stage and trajectory of trial, the causes of delay, the accused’s role, and risks upon release; the prima facie inquiry must examine whether the material discloses the statutory ingredients and a meaningful nexus to terrorist activity, without conducting a mini-trial.

Syed Iftikhar Andrabi v. NIA was relied upon for reaffirming that “bail is the rule and jail is the exception” even under the UAPA, subject to the facts of the case.

The Court further noted the reference of the Article 21–Section 43D(5) issue to a larger Bench in Tasleem Ahmed v. State (NCT of Delhi), while observing that existing binding law continued to apply.

Alemla Jamir v. NIA supported consideration of prolonged incarceration and the accused’s status as a woman in granting bail.

The Court held that the almost five-year custody of both appellants, coupled with examination of only 21 out of 359 witnesses, established that the trial was not likely to conclude soon.

Applying Article 21 in conjunction with Section 43D(5), it treated prolonged and potentially indefinite pre-trial detention as a material constitutional consideration rather than applying the statutory embargo mechanically.

In Sobiya’s case, although the prosecution material—including disclosure statements, diaries, the flag, and witness statements—provided some prima facie basis to proceed, the Court found that she had an arguable case for bail when her individual role, long incarceration, medical conditions, gender, and the bail granted to co-accused were considered cumulatively.

The alleged threat to a prosecution witness was not connected positively to Sobiya, and the witness had already been partly examined.

In Kamran’s case, the Court declined to undertake a detailed evidentiary assessment but found that, when his alleged digital and non-violent activities and the prosecution material were weighed against his nearly five-year incarceration and the projected duration of trial, he had made out a case for release on bail.

The conditions included execution of a personal bond of ₹2,00,000 with two sureties each; surrender of passports; no travel outside India without permission; use of a single traceable contact number and disclosure of residential and contact details; regular appearance and cooperation with the trial; no conduct causing delay; no contact with or intimidation of witnesses; no tampering with evidence; no public statements concerning the case; no activities prejudicial to public order or the trial; no joining or use of social-media groups circulating anti-national material and no dissemination of such material; and fortnightly reporting to the Investigating Officer.

Breach of any condition would entitle the prosecution to seek cancellation of bail.

The Court clarified that its observations were confined to bail and would not affect the merits of the trial.