Justice Aravind Kumar, Justice Vipul M. Pancholi, Supreme Court

The Supreme Court has held that the bar on bail for foreign nationals under Section 43D(7) of the Unlawful Activities (Prevention) Act, 1967 is not attracted merely because a valid entry later turned into an illegal stay. The Court held that the entry itself must have been unauthorized or illegal.

The Court held that once the prosecution prima facie establishes the ingredients of Section 43D(7), the provision sets a very high bar for the accused. It clarified that the sub-section overrides only sub-sections (5) and (6) of Section 43D and therefore does not bar default bail under Section 167(2) of the CrPC, as applied by Section 43D(2).

A Bench of Justice Aravind Kumar and Justice Vipul M. Pancholi observed, “…we are of the considered view that subsequent revocation of authorization or stay becoming illegal won’t attract the rigors of sub-section (7) of Section 43D and it is apposite that initially entry itself should’ve been unauthorized or illegal. The appellant has failed to place any material on record to prima facie establish the entry as unauthorized or illegal. Even the allegations in subsequent FIR records that respondent had entered India through a valid visa and it was subsequent to the expiry of his visa that his stay became illegal, as such, necessary prosecution under the Foreigner Act has been invoked for the same…”.

Aishwarya Bhati, Additional Solicitor General appeared for the appellant and Advocate A. Velan appeared for the respondent.

“…What can be a ‘very exceptional circumstances’ would depend upon the facts and circumstances of each case and there cannot be straight jacket formula or a pigeonhole to exhaustively lay down those circumstances herein. Therefore, we are of the considered view, that Section 43D(7) creates a very high bar to be satisfied by the accused person once the prosecution establishes prima facie ingredients of sub-section (7) of Section 43D exists. The legislative intent warranting such high threshold is primarily backed by considerations of national security, larger public interest and sovereignty of India”, the Bench said.

The respondent was arrested in 2018 in an FIR registered at Keelakarai for offences under the IPC, the UAPA and the Arms Act. On July 5, 2018, the Sessions Court at Ramanathapuram granted him default bail as no chargesheet had been filed. The NIA took over the case in January 2019. In November 2019, a separate FIR alleged he was a Sri Lankan national who had overstayed his visa and obtained Indian identity documents.

The NIA filed its chargesheet on January 23, 2021 and sought cancellation of bail on April 29, 2022, alleging suppression of his nationality. The Special Court allowed the plea on July 5, 2022. The Madras High Court set aside that order on December 12, 2023, and the Union appealed.

The Court held that Section 43D(7) requires three conjunctive conditions: an accused under the UAPA, who is not an Indian citizen, and who entered India unauthorizedly or illegally. It noted that the second FIR itself recorded entry on a valid visa and found no material showing illegal entry. It held that an extra-judicial confession to a Village Administrative Officer is not barred by Section 25 of the Evidence Act, but its probative value is for the trial court. It also held that the respondent was granted bail as a matter of right under Section 167(2), and that Section 43D(7) does not whittle down Section 43D(2).

Distinguishing cancellation from appeal against a bail order, the Court held that cancellation must rest on a supervening circumstance. It found no special and strong ground under T. Gangi Reddy and rejected the explanation for the unexplained delay of about a year after the chargesheet.

Cause Title: Union of India v. Mohamed Rifas @ Mohamed Rigbas (Neutral Citation: 2026 INSC 1160)

Appearances:

Appellant: Aishwarya Bhati, Additional Solicitor General

Respondent: A. Velan, Advocate.

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