Justice B.V. Nagarathna, Justice Ujjal Bhuyan, Supreme Court

The Supreme Court, while granting bail in a UAPA Case, has held that it harbours serious reservations on various aspects of the judgment namely, Gulfisha Fatima v. State (Govt. of NCT of Delhi), including its directive foreclosing the right of the appellants to seek bail for a period of one year.

It has also been observed that the judicial trend of smaller benches progressively diluting the binding three-judge bench precedent established in Union of India v. K.A. Najeeb, emphasizing that judicial discipline mandates strict adherence to the ratio decidendi of larger benches.

Highlighting staggering National Crime Records Bureau (NCRB) data—which revealed a UAPA conviction rate of less than 1% in Jammu and Kashmir, indicating a 99% probability of acquittal—the Court re-established that "bail is the rule and jail is the exception" remains a sacrosanct constitutional principle under Articles 21 and 22, which statutory provisions like Section 43-D(5) of the UAPA cannot entirely invert.

The Appellant had filed a special leave to appeal assailing the judgment passed by the Jammu and Kashmir High Court, vide which the Court had dismissed his bail petition. It was his case that he had undergone nearly five years of continuous incarceration, despite the admitted fact that no incriminating contraband was directly recovered from his personal possession.

The Bench of Justice BV Nagarathna and Justice Ujjal Bhuyan observed, "We have further discussed the judgment in Gulfisha Fatima. We harbor serious reservations on various aspects of that judgment, including its directive foreclosing the right of the appellants to seek bail for a period of one year. The judgment in Gulfisha Fatima would have us believe that Najeeb is merely a narrow and exceptional departure from Section 43-D(5), justified only in extreme factual situations...It is precisely this hollowing out of the import of the observations in Najeeb that concerns us. No reading of Najeeb suggests that the mere passage of time, divorced from all surrounding circumstances, mechanically entitles an accused to release. The real concern addressed in Najeeb lay elsewhere."

The Court said that the present case raises an important question concerning the interface between Section 43-D(5) of the Unlawful Activities (Prevention) Act, 1967 (hereinafter, "UAPA") and the constitutional guarantee of personal liberty under Article 21 of the Constitution of India. More particularly, the issue concerned the propriety of smaller benches progressively hollowing out the constitutional force of a larger bench decision without ever expressly disagreeing with it.

After exhaustively delineating the facts of the case, the rival submissions of the parties, and analyzing the prevailing jurisprudence, the Court specifically addressed the discordant judicial notes struck by certain coordinate benches, observing as under, "After narrating the facts, the submissions, and the two judgments in Gurvinder Singh v. State of Punjab and Gulfisha Fatima v. State, we have observed in Paragraph 26 that there are two judgments of this Court which we must address before proceeding further. These two judgments, Gurvinder Singh and Gulfisha Fatima, have taken a somewhat divergent view from the clear and distinctive trajectory taken by this Court regarding the grant of bail, even under special enactments such as the Terrorist and Disruptive Activities (Prevention) Act (TADA), UAPA, and the Narcotic Drugs and Psychotropic Substances Act (NDPS). In our view, the decision in Gurvinder Singh, inasmuch as it refuses to be bound by Najib, cannot easily be followed by us as a matter of precedent."

The Court observed, "It is plain that a judgment rendered by a bench of lesser strength is bound by the law declared by a bench of greater strength. Judicial discipline mandates that such binding precedent must either be followed or, in case of doubt, be referred to a larger bench. A smaller bench cannot dilute, circumvent, or disregard the ratio decidendi of a larger bench."

It was held that the position of law emerging from Union of India v. K.A. Najeeb and Sheikh Javed Iqbal v. State of Uttar Pradesh is therefore clear. National Investigation Agency v. Zahoor Ahmad Shah Watali cannot be invoked to justify the indefinite incarceration of an accused under the UAPA. For the aforesaid reasons, the attempt in Gurvinder Singh to interpret Watali as laying down a general rule for the denial of bail, notwithstanding the period of incarceration, is difficult to reconcile with this Court’s own subsequent clarification of what the ratio in Watali actually meant.

"We also note that the bench in Gurvinder Singh formulated a so-called "twin-pronged test" governing the grant of bail under the UAPA. It held that an inquiry under Section 43-D(5) must proceed in two sequential stages: First, whether the accusation is prima facie true; and Second, only if the first question is answered in favor of the accused, whether ordinary bail considerations—such as flight risk, tampering with evidence, etc.—would justify release", it said.

It said that under this formulation, if the first stage of the twin-pronged test is satisfied against the accused, bail becomes absolutely impermissible. With respect, this test flows neither from the text of Section 43-D(5) of the UAPA nor from Najeeb.

The Court also said, "While Gurvinder Singh and Gulfisha Fatima were decided by benches of two Honorable Judges, K.A. Najeeb is a judgment delivered by a bench of three Honorable Judges. In both Gurvinder Singh and Gulfisha Fatima, the two-judge benches made a clear departure from the ratio laid down in K.A. Najeeb. Judicial discipline and certainty demand that benches of lesser strength remain mindful of, and bound by, the decisions rendered by larger benches...If a smaller bench is unable to agree with the ratio laid down by a larger bench, the proper and only course of action open to it is to refer the matter to the Honorable Chief Justice of India for placement before a still larger bench. Sitting in a combination of two judges, we are bound by the ratio laid down by the three-judge bench in K.A. Najeeb. We say this and no more."

The Court asserted that the principle "bail is the rule and jail is the exception" is not an empty statutory slogan but a foundational constitutional principle emanating from Articles 21 and 22 of the Constitution, alongside the presumption of innocence. While penal statutes may calibrate national security restrictions, they cannot entirely invert the constitutional relationship between liberty and detention. Therefore, even under the UAPA, bail remains the rule and jail the exception.

To fortify its constitutional reasoning, the Supreme Court relied on National Crime Records Bureau (NCRB) data submitted before Parliament. The statistics revealed that between 2019 and 2023, the all-India conviction rate under the UAPA hovered between a meager 1.5% and 4%, translating to a 94% to 98% probability of acquittal. Strikingly, in the Union Territory of Jammu and Kashmir, the annual conviction rate remained consistently below 1%, indicating a 99% probability of acquittal at the conclusion of a trial.

In view of these staggering figures and the appellant's five-year incarceration, the Supreme Court allowed the appeal and directed that the appellant be enlarged on bail. The Court ordered that the appellant be produced before the Special NIA Court within seven days to finalize the terms of release, subject to the mandatory conditions that he must surrender his passport, report to the concerned police station once every fortnight, cooperate fully with the ongoing trial, and refrain from influencing or threatening any witnesses.

The appellant was facing trial before the Trial Court for the alleged commission of offences punishable under Sections 17, 38, and 40 of the Unlawful Activities (Prevention) Act, 1967, Sections 8, 21, 25, and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), read with Section 120-B of the Indian Penal Code, 1860.

The case of the prosecution arose out of an incident dated June 11, 2020, when a co-accused, namely Abdul Momin Peer, was intercepted while travelling in an unregistered Hyundai Creta vehicle. Upon a search of the said vehicle, the investigating agency recovered six packets of narcotic drugs, status/nature whereof was identified as 'Heroin', weighing 6.200 kg, along with Indian currency amounting to ₹20,00,000/-. Consequent upon the disclosure statement made by the said co-accused, subsequent recoveries of a large commercial quantity of Heroin weighing 21 kg and cash amounting to ₹1,35,89,850/- were effected from the possession of accused persons A-2 to A-6, besides the freezing of huge amounts stashed in various bank accounts.

As per the final report/charge-sheet submitted by the respondent-Investigating Agency, the accused persons were operating a syndicate involved in procuring narcotic drugs from Tangdhar, a border area adjacent to Pakistan-Occupied Kashmir (POK), and distributing the same across various parts of the country. The sale proceeds derived from the said contraband were allegedly being channelled into funding militant activities in the Union Territory of Jammu and Kashmir. The investigation further revealed that the main accused had links with Pakistan-based commanders of proscribed terrorist organizations, namely 'Lashkar-e-Taiba' (LeT) and 'Hizbul Mujahideen'.

Insofar as the complicity of the Appellant was concerned, the prosecution alleged that upon his disclosure statement, Heroin weighing 3.200 kg and cash exceeding ₹35,00,000/- were recovered from the bedroom of co-accused A-5, Saleem Andrabi. The Call Detail Record (CDR) analysis produced by the agency indicated that the appellant was in communication with Jamil-Ur-Rehman, the Chief of 'Tehreek-Ul-Mujahideen' (TuM), via secure protocols. Furthermore, it was alleged that the appellant, along with co-accused A-1, had travelled to Pakistan, held meetings with terrorist handlers named Waheed Gillani and Saifullah, and hatched a criminal conspiracy to finance insurgency through narco-terrorism.

Aggrieved by the rejection of his bail before the Trial Court and then the High Court, the Appellant preferred the present leave to appeal. The High Court had observed that the evidence placed by the prosecution, prima facie, demonstrated the active complicity of the appellant in the commission of grave narco-terror activities. The High Court held that since formal charges had already been framed against the appellant, it was safe to presume that a strong suspicion stood well-founded on the strength of the material existing on the record of the Trial Court. It was further observed that such a presumption of guilt would continue to operate against the appellant unless effectively rebutted or contradicted by defence evidence during the course of the trial.

Cause Title: Syed Iftikhar Andrabi v. National Investigation, Jammu [SLP(Crl) No. 1090/2026]

(This was a pronouncement story, the judgment was uploaded later.)

Click here to read/down the judgment

Tags: