Nearly five years in custody, 21 of 356 witnesses heard: Delhi HC sends UAPA bail plea back to trial court
A division bench of Justice Navin Chawla and Justice Arun Bhardwaj found merit in the argument that the trial delay may violate Article 21, but left it to the NIA special court to weigh the delay, a key witness and new charges, giving accused no. 24 in a Kashmir terror conspiracy case liberty to seek bail afresh.
Irfan Tariq Antoo has been in custody since 16 December 2021 in a National Investigation Agency conspiracy case where only 21 of 356 prosecution witnesses have been examined. On 30 October 2026 the Delhi High Court accepted that the delay was considerable, but declined to decide his bail itself.
Justice Navin Chawla, writing for a division bench with Justice Arun Bhardwaj, disposed of his appeal with liberty to apply again to the trial court. That court must now weigh the delay, the charges framed since and a key witness’s testimony at the first instance.
The case and the 2023 refusal
Antoo is accused no. 24 in NIA v. Tariq Ahmad Dar, NIA Case No. 2/2022 before the Additional Sessions Judge-03 at Patiala House Courts. The case, RC-29/2021/NIA/DLI, was registered on 10 October 2021 over an alleged conspiracy by cadres of proscribed outfits to carry out terrorist acts in Jammu and Kashmir and elsewhere, including New Delhi.
On 7 August 2023 the trial court refused him bail under Section 43D(5) of the Unlawful Activities (Prevention) Act, 1967. It held that his disclosure statement of 28 December 2021 was not prima facie inadmissible, because the prosecution relied on a consequent recovery of AK-47 bullets from protected witness X-12.
Statements of X-12, X-1 and three other witnesses showed the allegations to be prima facie genuine, the trial court said. He appealed under Section 21(4) of the National Investigation Agency Act, 2008.
Since then, on 30 July 2024, the trial court framed charges under Sections 120B and 121A of the Indian Penal Code and Section 18 of the UAPA. It discharged him of offences under Sections 20, 38 and 39 of the UAPA and Section 25(1A) of the Arms Act, 1959.
Defence: delay, accomplices and hearsay
Ms Deeksha Dwivedi, for Antoo, said the framing of charges did not defeat his right to bail given the delay. Relying on Union of India v. K.A. Najeeb and other Supreme Court rulings, she argued that nearly five years of custody violated Article 21.
On the merits, she called X-1, who claimed Antoo handed him grenades for a co-accused, an accomplice deposing under NIA influence, whose evidence needed corroboration. The bullets were recovered from a third party 24 days after the disclosure, without any pointing out by Antoo, she said.
She described the witness on fake SIM cards as an uncorroborated self-confessed accomplice and the witnesses about a car as hearsay. She also pressed parity with co-accused already granted bail, and his health.
Mr Amit Tiwari, Special Public Prosecutor for the NIA, said Antoo was a radicalised recruiter-cum-associate of Al-Badr and Hizbul Mujahideen, in contact with Pakistan-based handlers. The NIA alleges he kept and supplied grenades, sheltered active terrorists, held AK-47 bullets and channelled terror funds.
Mr Tiwari argued that later evidence should not be considered in an appeal. He cited NIA v. Zahoor Ahmad Shah Watali and Gurwinder Singh v. State of Punjab, and a Supreme Court order of 15 May 2024 in a co-accused’s case directing the trial court to examine material witnesses expeditiously, protected witnesses first.
He added that the delay ground no longer survived now that special courts were running NIA trials, and pointed to two 2018 FIRs against Antoo at Police Station Sopore.
Later evidence can be seen, but not here
The bench held, relying on Shoma Kanti Sen v. State of Maharashtra, that an appellate court can consider material that comes into existence after the trial court’s order. In its own ruling in Mohd Shahzad Kamal v. NIA, 2026:DHC:8585-DB, it had relied on later testimony to grant bail.
This case was different, it said. X-1, examined as PW-2 on 16 December 2024, deposed that Antoo gave him a bag containing grenades and that he knew Antoo well. A suggestion was even put to him that they first met in 2018 at Police Station Sopore over a stone-pelting case.
How far that testimony can be relied on, along with the effect of the charge order and evidence already recorded against co-accused, was for the trial court to assess.
Delay accepted, decision deferred
When bail was refused in August 2023, Antoo had been in custody for less than two years. Following K.A. Najeeb, the bench found merit in the submission that the delay was considerable and that long incarceration may violate his Article 21 rights.
But the reasons for the delay, whether delay alone justifies bail now, and whether the remaining material witnesses can be examined quickly “are matters to be considered by the learned Trial Court at the first instance” (para 29).
Those witnesses include X-12, who allegedly kept AK-47 cartridges at his request, a witness who allegedly supplied SIM cards and delivered money, and two witnesses who allegedly lent a car later used in a terrorist activity. The trial court must also consider whether Antoo could influence them if released.
Co-accused had been granted bail because of delay, the bench acknowledged, but each accused’s case turns on its own merits, including the risk of influencing the trial. Ill health had not been raised before the trial court at all.
Order
The appeal was disposed of with liberty to Antoo to file a fresh bail application before the trial court. That court must decide it expeditiously, uninfluenced by its own earlier order or by the High Court’s observations, and consider subsequent developments and their effect on his continued incarceration.
The bench clarified that it had not examined the prosecution case or any witness testimony on merits. There was no order as to costs.