Forty-two of 112 witnesses in seven and a half years: Delhi High Court grants UAPA bail in the pro-IS module case
The Supreme Court has referred the Article 21 and Section 43D(5) question to a larger Bench. Justices Navin Chawla and Ravinder Dudeja decline to wait, applying the law as it stands and releasing a man accused of arranging four pistols.
A man held since 3 January 2019 on charges of arranging weapons for a pro-Islamic State module has been granted bail by the Delhi High Court, which found that forty-two of 112 witnesses had been examined in seven and a half years and that there was no prospect of the trial ending soon. Justices Navin Chawla and Ravinder Dudeja decided the appeal even though the Supreme Court has referred the central question — how Article 21 operates in a statutory field where Parliament has restricted bail — to a larger Bench. A High Court, they held, proceeds on the law as it stands. The order of the trial court refusing bail was set aside.
A relative, a village, and four pistols
The appeal was filed under Section 21(4) of the National Investigation Agency Act, 2008, against an order of 6 June 2024 by the Additional Sessions Judge-03, Patiala House Courts. The case is FIR No. RC-38/2018/NIA/DLI, registered under Sections 120B, 121, 121A and 122 of the Indian Penal Code, Sections 17, 18, 18B, 20, 38 and 39 of the Unlawful Activities (Prevention) Act, 1967, and Sections 4 and 5 of the Explosive Substances Act, 1908.
The appellant is accused number eleven and was not named in the first information report. He was twenty-two when arrested. According to the charge-sheet, accused number five — a relative — introduced accused number one to him so that weapons could be arranged through his contacts in Radhna Inayatpur, Meerut.
Two visits are alleged. In the first week of July 2018, five of the accused travelled to the village and collected one country-made pistol, one katta and twenty cartridges. In the second week of August 2018 they returned and collected three pistols and further packets of cartridges. Three residents of the village — the prosecution witnesses numbered 28, 29 and 30 — are said to have handed over the weapons at the appellant's direction.
From the appellant himself, the only recovery was two mobile phones with SIM cards. The remaining material against him is a disclosure statement and pointing-out memo of January 2019, and call detail record analysis showing his phone moving with that of accused number one. The Special Public Prosecutor pointed to fifty-nine calls between the two men and another thirty-two between accused number one and accused number five.
The prosecution's answer to the modest scale of the recovery was conspiracy. The Special Public Prosecutor accepted that nothing but a mobile phone was recovered from the appellant, but pointed to the recoveries from the co-accused, which he said showed the organisation's conspiracy to commit a terrorist act. Within such a conspiracy each member may have a different role, and a person cannot plead innocence or leniency by drawing a distinction based on his own role. He relied on Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra and Mohd. Amin v. CBI, and on Laxmipat Choraria v. State of Maharashtra for the proposition that the statements of witnesses who are themselves implicated are nonetheless entitled to acceptance. Relying on Gulfisha Fatima from the other side, he submitted that the appellant was not a peripheral member but a core member who played a very active part, and so was disentitled to bail on the ground of prolonged incarceration alone.
Counsel for the appellant met that on the same authority. There was, he said, no allegation that the appellant attended any meeting of the group, engaged with the ideology of the organisation, or was in contact with any of its handlers; he was not a key functionary or core member; he had no criminal antecedents; and nothing incriminating in the form of arms, ammunition, literature or documents had been recovered from him. On the aggravated offence under Section 23 of the UAPA, which requires a contravention under the Arms Act, 1959 to take place with intent to aid a terrorist or further a terrorist activity, there was not a single whisper in the three witnesses' testimonies about any terrorist group or about jihad. At best, the allegation was that he introduced accused number one to arms dealers in his own village.
What the Bench would not say
The three village witnesses have already been examined before the trial court. Counsel for the appellant argued that they are self-confessed illegal arms dealers, and therefore accomplices whose evidence attracts the rule of caution under Section 133 read with illustration (b) to Section 114 of the Indian Evidence Act, 1872.
The High Court read their statements and then deliberately declined to analyse them. Any observation it made might influence the trial. It confined itself to a single sentence: the statements of these witnesses did not persuade the Bench to deny bail. It added a practical consequence — once those witnesses stand examined, the possibility of the appellant influencing the trial is reduced, if not negated.
The effect of the call records and cell-site locations was left entirely to the trial court.
RDX is not a pistol
The prosecution's central submission was that facilitating the procurement of arms in such quantity itself shows knowledge that they were meant for terrorist activity. It relied on State of Maharashtra v. Som Nath Thapa, where the Supreme Court drew a presumption of knowledge against those who had supplied material for a conspiracy.
The Bench distinguished it on the facts. Som Nath Thapa concerned the supply of RDX and bombs, which was why a special presumption was drawn. Here the allegation is one pistol, one katta and twenty rounds on the first occasion, and three pistols and three packets of twenty rounds on the second. Whether a presumption arises that weapons of that kind were destined for terrorist activity rather than ordinary crime is a question for the trial court at the end of the trial, not for a bail court.
On conspiracy, the Bench accepted the legal proposition that an individual act cannot be viewed in isolation, and then stated the limit of it: the prosecution would still have to show that the appellant acted in furtherance of a common intention and so had knowledge of the common purpose.
The same Bench had already released accused number five on 14 September 2026, relying on its earlier Division Bench judgment in Khuram Parvez v. National Investigation Agency, which had examined how the fundamental right under Article 21 is to be balanced against the bail restrictions in Section 43D(5) of the UAPA. That matters to the shape of this case: accused number five is the relative through whom the appellant is said to have been introduced to the group at all, and he is already out.
The appellant also pressed a point about the call records themselves, relying on Shoma Kanti Sen v. State of Maharashtra for the proposition that common cell-site location cannot by itself establish contact between two accused, much less prove a charge. And on the offences under the Arms Act, counsel submitted that the incarceration already undergone would be commensurate with the sentence under the pre-amended provisions. Neither point needed to be decided.
A question before a larger Bench, and a High Court that decided anyway
This is where the judgment does its real work, because the law the Bench had to apply is itself unsettled.
The starting point is Union of India v. K.A. Najeeb, where a three-judge Bench held that statutory restrictions such as Section 43D(5) do not oust the power of constitutional courts to grant bail for breach of Part III, and that the rigours of such provisions “will melt down” where the trial is unlikely to conclude in reasonable time and the custody already undergone has exceeded a substantial part of the prescribed sentence. The Court there also recorded that Section 43D(5) is less stringent than Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, because it carries no precondition that the accused be prima facie not guilty.
The Supreme Court in Gulfisha Fatima v. State (Govt of NCT of Delhi) then framed the question of what principled approach a constitutional court must take when delay and prolonged incarceration are invoked, and answered it with a structured inquiry: whether the prosecution material as it stands discloses the statutory ingredients, whether the role attributed reflects a real and meaningful nexus to the proscribed activity as distinguished from mere association, and whether the threshold is crossed against the individual accused. That inquiry, it held, is accused-specific and admits of no undifferentiated treatment merely because the allegations arise from a common conspiracy.
The correctness of that approach was then doubted. In Syed Iftikhar Andrabi v. National Investigation Agency, Jammu the Supreme Court explained K.A. Najeeb and held that the phrase about bail being the rule is not a statutory slogan but a constitutional principle flowing from Articles 21 and 22 and the presumption of innocence — and that statutes may calibrate how that principle applies but cannot invert the relationship between liberty and detention. That judgment also set out the conviction rate under the UAPA for 2019 to 2023, which it put at between two and six per cent nationally and under one per cent in Jammu and Kashmir.
And then, by an order of 22 May 2026 in Tasleem Ahmed v. State Govt. of NCT of Delhi, the interplay between Article 21 and Section 43D(5) was referred to a larger Bench. The Supreme Court there cautioned that an unqualified reading under which lapse of time by itself compels bail in every UAPA case would leave little room to examine centrality of role, protected witnesses, risk of intimidation or reactivation of networks — while an equally unqualified insistence on Section 43D(5) regardless of prolonged incarceration would imperil Article 21. It clarified that nothing in the order was meant to dilute K.A. Najeeb, and, having made the reference, still released the appellant before it on interim bail for six months.
Faced with that, the Delhi Bench turned to Union Territory of Ladakh v. Jammu and Kashmir National Conference, where the Supreme Court recorded that it was seeing High Courts decline to decide cases because the leading judgment had been referred to a larger Bench or was under review. The position was laid down in terms: High Courts will proceed to decide matters on the basis of the law as it stands; it is not open to them, unless specifically directed, to await the outcome of a reference or a review; and where there are conflicting judgments of co-equal Benches, the earlier one is to be followed.
Seven and a half years, and the arithmetic of the trial
The application of all of this to the appellant occupies two short paragraphs, and they rest on numbers rather than doctrine.
He has been in custody since 3 January 2019 — more than seven and a half years. Charges were framed on 30 August 2022. As on 7 January 2026, forty-two of 112 witnesses had been examined, out of a total of 168 cited. There was, the Bench held, no possibility of the trial concluding any time soon. Given the nature of the evidence and that delay, the appellant had made out a case for release.
No finding was recorded on whether the material against him crosses the Section 43D(5) threshold, and the Bench said expressly that its observations were made only for the purpose of considering bail and were not to be construed as observations on the merits.
Order
Bail was granted on a personal bond of Rs 50,000 with two sureties in the like amount, to the satisfaction of the trial court.
The conditions imposed are detailed. The appellant must surrender his passport or file an affidavit that he holds none, and cannot leave the country without the trial court's permission; any application to travel must disclose destination, duration, purpose and contact details. He is not to leave District Meerut except to attend trial in Delhi or to report to the NIA office. He may use only one mobile or landline number during the trial, which must always be kept switched on. His address and contact particulars must be furnished to the investigating officer and the trial court, and cannot change without seven days' prior intimation.
He must appear on every date unless exempted, must not exhibit conduct that delays the proceedings, and must not contact, influence or communicate with any prosecution witness, protected witness, complainant, person acquainted with the facts, co-accused or their family members. He must not tamper with evidence, electronic material, records or devices. He must make no public statement, including on social media, touching the merits, the evidence, the witnesses or the pending trial, must not participate in any activity prejudicing public order or the integrity of the trial, and must not circulate anti-national material on any platform.
He is to report to the concerned NIA branch office once a fortnight, or at such interval as the trial court directs, and that office is to maintain a separate attendance register for him.
Breach of any condition leaves the prosecution free to seek cancellation before the appropriate court. The order refusing bail was set aside and the appeal disposed of. Copies were directed to be sent to the trial court and to the Jail Superintendent.