Absence Of Recovery, Lack Of Direct Nexus And Prolonged Custody: Jammu & Kashmir And Ladakh HC Grants Bail In UAPA Case

While emphasizing that the appellant had been in custody since March 2021 without any direct recovery of contraband, the Court clarified that mere peripheral association or the facilitation of a truck purchase—without proof of conscious involvement in a conspiracy—did not justify continued detention.

​The Division Bench of Justice Sanjeev Kumar and Justice Sanjay Parihar observed, “The absence of recovery, lack of direct nexus, and the reliance upon weak evidentiary material such as confessional statements further dilute the prosecution case. The continued incarceration of the appellant, particularly in the backdrop of prolonged custody, would be inconsistent with the mandate of Article 21 of the Constitution, as recognised in K.A. Najeeb (supra)…Accordingly, this Court is of the considered opinion that the appellant has succeeded in carving out a case for grant of bail.”

Advocate IH Bhat appeared for the Appellant, while DSGI Vishal Sharma appeared for the Respondents.

Factual Background

The appellant was arraigned as Accused in a case registered under Section 120-B of the Indian Penal Code (IPC), Sections 8 and 21 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, and Sections 17, 18, and 20 of the Unlawful Activities (Prevention) Act (UAPA).

The appellant faced trial before the Court of Special Judge, NIA, Jammu (the "Trial Court"). Being aggrieved by the order, whereby his bail application was declined, the appellant preferred an appeal under Section 21 of the NIA Act. He primarily contended that no recovery of contraband was effected from him and that no material existed to show his involvement in generating proceeds for terrorist funding.

Submissions of the Parties

The appellant argued that the Trial Court failed to exercise the statutory mandate under Section 43-D (5) of the UAPA, which required a finding on whether the accusations were prima facie true. It was submitted that the prosecution case rested solely on the statements of co-accused and an approver, which were considered weak pieces of evidence in the eyes of the law.

Conversely, the prosecution asserted that the appellant was actively involved in the smuggling of narcotics to provide logistical support for militant activities. They relied upon documentary evidence, including voice clips and telephonic chats, to establish a conspiracy.

Observations of the Court

The Court observed that the legal position regarding bail under the UAPA was well-settled. While the National Investigation Agency v. Zahoor Ahmad Shah Watali, (2019) established that the Court must examine if accusations are prima facie true, the Union of India v. K.A. Najeeb, (2021) judgment clarified that Constitutional Courts could grant bail in instances of prolonged incarceration.

Upon examination of the trial court record, the Court noted that the allegations against the appellant pertained to his role as a smuggler between 2003 and 2018. Although he was previously arrested in an NDPS case in 2012, he had been granted bail in that matter. In the present case, no recovery was made from his person. His implication was based almost entirely on the statement of an approver and alleged telephonic contacts.

The Court found that the appellant’s role in the purchase of a truck used for smuggling appeared to be minimal and peripheral. There was no direct material to link the appellant to the recoveries of heroin and cash made from other co-accused.

The Court held that the prosecution failed to meet the threshold of "reasonable grounds" to believe that the accusations were prima facie true. The evidence, consisting primarily of confessions from co-accused and an approver, was deemed insufficient to sustain the continued detention of the appellant, especially given his custody since March 2021.

“Applying the aforesaid settled principles to the facts of the present case, it emerges that no recovery has been effected from the appellant, nor is there any material to demonstrate his conscious possession, direct participation, or involvement in any transaction leading to the recovery of narcotic substances from other co-accused. The entire case against him rests upon the statement of an approver and alleged telephonic contacts, without any corroborative evidence such as financial transactions, recovery, or overt acts attributable to him. Even the role attributed to the appellant, as borne out from the charge-sheet, appears to be peripheral and inferential in nature”, it observed.

The Court remarked that the appellant was not shown to be associated with any militant organization.

Consequently, the Court set aside the impugned order and released the appellant on bail.

Cause Title: Amin Allaie v. National Investigating Agency, Jammu [Neutral Citation: 2026:JKLHC:943]

Appearances:

Appellant: Advocate IH Bhat

Respondent: DSGI Vishal Sharma, CGSC Eeshaan Dadhichi and PP Chandan Kumar Singh

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