Supreme Court Grants Bail Under UAPA, Reaffirms Section 43-D(5) Cannot Override Article 21
A Division Bench led by Justice Ujjal Bhuyan holds that K.A. Najeeb remains binding law and that prolonged pre-trial detention under the UAP Act cannot be sustained by invoking Section 43-D(5) alone.
The Supreme Court has granted bail to Syed Iftikhar Andrabi, a former government employee from Kupwara who has been in custody since 11 June 2020 on charges of narco-terrorism under the Unlawful Activities (Prevention) Act, 1967 and the Narcotic Drugs and Psychotropic Substances Act, 1985. Writing for a Division Bench that also comprised Justice B.V. Nagarathna, Justice Ujjal Bhuyan held that the statutory embargo in Section 43-D(5) of the UAP Act does not extinguish the power of a constitutional court to grant bail where trial is indefinitely delayed and incarceration has become oppressive.
The judgment, reported as 2026 INSC 503, also takes direct aim at two earlier two-Judge Bench decisions, Gurwinder Singh v. State of Punjab and Gulfisha Fatima v. State (Govt. of NCT of Delhi) for progressively hollowing out the ratio of the three-Judge Bench in Union of India v. K.A. Najeeb without expressly disagreeing with it.
How the Case Reached the Supreme Court
Andrabi was a Village Level Worker in the Rural Development Department, Jammu and Kashmir, and a supporter of the Jammu and Kashmir People's Conference, a registered mainstream political party. He was first taken into preventive detention on 7 August 2019 under the Jammu and Kashmir Public Safety Act, 1978, following the abrogation of Article 370. The High Court of Jammu and Kashmir and Ladakh quashed that detention order on 26 June 2020, finding that “other incriminating material” relied upon by the District Magistrate had never been furnished to him, preventing an effective representation.
Before that quashing order, on 11 June 2020, an FIR was registered at Handwara Police Station under Sections 8 and 21 of the NDPS Act. Police stopped a white Creta vehicle at Kuhroo Bridge and recovered cash in 500 rupee denomination and six packets of suspected narcotics. The driver, Abdul Momin, was arrested. Andrabi was brought in for investigation and arrested the same day on the basis of a disclosure statement attributed to him. The Central Government directed the NIA to take over the investigation on 22 June 2020. The NIA re-registered the case as RC-03/2020/NIA/JMU and filed a chargesheet on 5 December 2020 naming Andrabi as accused No. 2.
The chargesheet alleged that at Andrabi's instance, cash of Rs. 35,17,970 and 3.2 kg of heroin were recovered from the bedroom of accused No. 1; that Andrabi had visited Pakistan in 2016 and 2017 via the Wagah-Attari border and met persons linked to the Lashkar-e-Taiba and Hizbul Mujahideen; and that he worked as an overground worker for those organisations. Charges were framed by the Special NIA Court on 15 November 2023, two years after arguments on charge were concluded because the Chief Investigating Officer repeatedly failed to appear despite reminders.
The Special NIA Court rejected Andrabi's bail application on 10 August 2024. The High Court dismissed his appeal under Section 21 of the NIA Act on 19 August 2025. He then filed a special leave petition before the Supreme Court. Leave was granted, and the matter was heard on 11 March 2026 and 13 April 2026.
The Conflict in Precedent: What the Court Was Really Deciding
The judgment frames its central concern at the outset: the propriety of smaller Benches progressively hollowing out the constitutional force of a larger Bench decision without ever expressly disagreeing with it. That larger Bench decision is K.A. Najeeb, a three-Judge Bench ruling which held that the presence of statutory restrictions like Section 43-D(5) of the UAP Act does not oust the ability of constitutional courts to grant bail on grounds of violation of Part III of the Constitution, and that the rigours of such provisions will “melt down” where there is no likelihood of trial being completed within a reasonable time.
Two subsequent two-Judge Bench decisions had read Najeeb narrowly. In Gurwinder Singh, the Bench formulated a “twin-prong test”: first, whether the accusation is prima facie true; and second, only if that question is answered in favour of the accused, whether ordinary bail considerations justify release. If the first stage is satisfied against the accused, bail becomes absolutely impermissible. In Gulfisha Fatima, a two-Judge Bench treated Najeeb as only a narrow and exceptional departure from Section 43-D(5), justified in extreme factual situations, and declined to grant bail to two of the seven appellants before it.
The present Bench found both approaches difficult to follow. It held that the twin-prong test in Gurwinder flows neither from the text of Section 43-D(5) nor from Najeeb. If that test were accepted, the State need only satisfy a low prima facie threshold while the trial continues for years, converting pre-trial incarceration into post-trial punishment, with no court ever able to grant bail because the case stood prima facie made out. The Court said this was precisely what Najeeb had warned against 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.”
On Gulfisha Fatima, the Court expressed serious reservations, including on the aspect of foreclosing the right of two appellants to seek bail for a period of one year. The Bench observed that the reasoning in both Gurwinder and Gulfisha Fatima appeared to proceed against something invented and then destroyed: Najeeb was not warning courts against treating incarceration as the sole factor favouring bail; it was warning against treating the statutory embargo as the sole factor justifying continued detention by ignoring constitutional principles.
The Constitutional Hierarchy the Court Restored
The Court's reasoning rests on a clear statement of constitutional hierarchy. Section 43-D(5) remains subordinate to Article 21 at all times. A constitutional court need not hold back bail in the garb of Section 43-D(5). The phrase “bail is the rule and jail is the exception” is not merely a statutory slogan flowing from the Code of Criminal Procedure; it is a constitutional principle flowing from Articles 21 and 22 and the presumption of innocence. Statutes may calibrate the manner in which that principle is applied, but they cannot altogether invert the constitutional relationship between liberty and detention.
The Court drew on a line of authority running from Shaheen Welfare Association v. Union of India through Lt. Col. Prasad Shrikant Purohit v. State of Maharashtra, K.A. Najeeb, Javed Gulam Nabi Shaikh v. State of Maharashtra, Sheikh Javed Iqbal v. State of Uttar Pradesh, and Arvind Dham v. Directorate of Enforcement. Each of those decisions, the Court found, had continued to apply the approach in Najeeb in granting bail under the UAP Act on grounds of prolonged incarceration and gross delay. Neither Gurwinder nor Gulfisha Fatima engaged with this subsequent line of authority.
The Court also addressed the treatment of NIA v. Zahoor Ahmad Shah Watali in the two divergent decisions. It reiterated what the three-Judge Bench in Najeeb had clarified: Watali arose in a specific factual context where the High Court had effectively conducted a mini-trial by reappreciating evidence and determining admissibility at the bail stage. Najeeb confined Watali to that impropriety. Watali did not establish a general rule of near-automatic denial of bail under the UAP Act, and it cannot be invoked to justify indefinite incarceration.
The Bench then stated its conclusion in terms that leave no room for ambiguity: 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 the Supreme Court. A smaller Bench that is unable to agree with the ratio of a larger Bench must refer the matter to the Chief Justice of India for placement before a still larger Bench. It cannot simply depart.
Conviction Statistics Under the UAP Act
The Court cited data placed before the Lok Sabha on 2 December 2025 by the Minister of State in the Ministry of Home Affairs, drawn from National Crime Records Bureau figures for 2019 to 2023. Across India, the percentage of convictions among persons arrested under the UAP Act ranged between 1.56% and 6.06% in those five years — meaning a 94% to 98% possibility of acquittal. In Jammu and Kashmir specifically, the annual conviction rate never exceeded 0.89% in the same period, implying a 99% possibility of acquittal at the end of trial. The Court asked directly whether, with those statistics, continued detention of the appellant was justified simply because the charges were serious.
Why Bail Was Granted in This Case
Turning to the facts, the Court identified several reasons for granting bail. No cash or contraband was recovered from Andrabi's person, residence, or workplace. All statements implicating him were made before the police, including his own alleged confession, which is prima facie hit by Section 25 of the Indian Evidence Act, 1872.
]The CDR report of his seized mobile phones showed no phone calls between him and any terrorist. The approver's deposition before the trial court had not produced anything incriminating against him. The overground worker categorisation certificate was issued just one day before the chargesheet was filed, by the same Superintendent of Police who had earlier described Andrabi in the preventive detention dossier as a mainstream political worker of the People's Conference.
Andrabi had no prior antecedents of connection with the narcotic trade or terrorist activities. He had been granted interim bail on medical grounds by the Special NIA Court in January 2022 and had surrendered on 10 March 2022 without misusing that liberty. Co-accused persons facing similar accusations including accused No. 3 Islam Ul-Haq Peer, accused No. 12 Mudasir Ahmed Dar, and accused No. 13 Amin Allaie had been granted bail by the High Court after shorter periods of incarceration. This Court had also granted bail to accused No. 11 Romesh Kumar in SLP (Criminal) No. 13829 of 2024, decided on 7 February 2025, predominantly on the ground of delay in trial.
As of the date of the judgment, Andrabi had been in custody for more than five years and eleven months. The prosecution had more than 350 witnesses still to examine. The trial court's own orders dated 6 August 2025 and 7 August 2025 recorded that the prosecution's failure to produce witnesses had caused delay. The Court found that conclusion of the trial in the near future was well-nigh impossible, and that K.A. Najeeb applied with full force.
Order
The Supreme Court allowed the criminal appeal and directed that Andrabi be released on bail on such terms and conditions as the Special NIA Court may deem fit. He is to be produced before the Special NIA Court within seven days of the date of the judgment. In addition to any conditions the Special NIA Court imposes, the Court directed that Andrabi deposit his passport before the Special NIA Court and report to Handwara Police Station once every fortnight on dates and times fixed by the police authorities there. He is to continue cooperating with the ongoing trial and is not to threaten or attempt to influence any witness. There is no order as to costs.
The judgment was authored by Justice Ujjal Bhuyan, with the Court recording that it was based on the invaluable inputs of Justice B.V. Nagarathna.