The Delhi High Court has granted bail to two accused in a National Investigation Agency case under the Unlawful Activities (Prevention) Act, 1967, after they endured nearly five years of pre-trial incarceration while only 21 of 359 cited witnesses had been examined. The Division Bench held that statutory restrictions under Section 43D(5) UAPA must yield to the constitutional guarantee of personal liberty under Article 21 when trial delay is inordinate and the accused's role is not central to the alleged conspiracy.
Background & Facts
The Dispute
The appeals arose from orders of the Additional Sessions Judge-03, New Delhi District, Patiala House Courts, dismissing bail applications filed by Sobiya Aziz (Crl.A. 528/2026) and Kamran Ashraf Reshi (Crl.A. 453/2023). Both appellants were arrayed as accused in a chargesheet filed by the National Investigation Agency (NIA) in SC No. 2/2022, emanating from RC No. 29/2021/NIA/DLI registered on 10.10.2021 at Police Station NIA, New Delhi. The case involved allegations of a larger conspiracy by cadres of proscribed terrorist organisations including Lashkar-e-Taiba, Jaish-e-Mohammed, Hizb-ul-Mujahideen, and their affiliates to wage war against the Government of India.
Key Facts
- FIR Registration: 10.10.2021 under Sections 120B, 121A, 122, 123 IPC and Sections 18, 18A, 18B, 20, 38, 39 UAPA
- Sobiya Aziz (Accused No. 17): Arrested on 22.10.2021; search at residence recovered diaries with handwritten notes on Shariat Law, Islamic State ideology, and an Islamic State flag. Charged with Sections 120B, 121A IPC read with Sections 18, 20, 38, 39 UAPA. Discharged from Sections 20, 38, 39 UAPA by trial court order dated 20.08.2024.
- Kamran Ashraf Reshi (Accused No. 11): Arrested on 20.10.2021 at age approximately 21 years. Alleged association with online propaganda groups linked to The Resistance Front (TRF) and Pakistan-based handlers including LeT commander "Haq Parast @ Abu Hamza". Charged with conspiracy and membership of terrorist organisation.
- Chargesheet: Filed 08.04.2022 naming 26 accused; supplementary chargesheet filed 20.03.2023 citing 51 additional witnesses and 55 additional documents.
- Witness Examination: As of judgment date, only 21 of 359 cited witnesses examined.
- Co-accused Bail: Multiple co-accused granted bail by trial court (Mohd. Manan Dar, Mateen Ahmed Bhatt, Rauf Ahmad Bhat, Adil Ahmed War) and by High Court (Haris Nisar Langoo, Zamin Adil Bhat) and Supreme Court (Suhail Ahmad Thokar).
Procedural History
- 10.10.2021: FIR RC-29/2021/NIA/DLI registered by NIA
- 20.10.2021: Kamran Ashraf Reshi arrested
- 22.10.2021: Sobiya Aziz arrested
- 08.04.2022: First chargesheet filed
- 18.01.2022: Sobiya Aziz's first bail application withdrawn
- 03.02.2023: Sobiya Aziz's second bail application dismissed on merits by trial court
- 20.03.2023: Supplementary chargesheet filed
- 20.08.2024: Trial court discharges Sobiya Aziz from Sections 20, 38, 39 UAPA
- 20.12.2025: Sobiya Aziz's third bail application filed
- 14.05.2026: Trial court dismisses Sobiya Aziz's third bail application (impugned order in Crl.A. 528/2026)
- 17.03.2023: Trial court dismisses Kamran Ashraf Reshi's bail application (impugned order in Crl.A. 453/2023)
- 17.08.2026: High Court directs medical report for Sobiya Aziz
- 20.08.2026: Medical report received from Superintendent, Central Jail No.6, Tihar
- 25.08.2026: Appeals reserved for judgment
- 03.09.2026: Judgment pronounced
Relief Sought
Both appellants sought bail pending trial on grounds of prolonged incarceration (nearly 5 years), inordinate delay in trial (only 21 of 359 witnesses examined), parity with co-accused granted bail, and in Sobiya Aziz's case, her gender and medical ailments (chronic headache, moderate anemia, uterine fibroids, recurrent UTI, thyroid nodules).
The Legal Issue
The central question was whether the statutory embargo on bail under Section 43D(5) of the UAPA can be overridden by the constitutional guarantee of speedy trial and personal liberty under Article 21 when the accused has suffered prolonged pre-trial incarceration with no realistic prospect of trial conclusion within a reasonable time, and whether the court must conduct an accused-specific inquiry into the prima facie material and role attribution rather than applying a collective or undifferentiated approach.
Arguments Presented
For the Appellant Sobiya Aziz
Counsel submitted that the appellant, a 33-year-old woman with no criminal antecedents, had suffered almost 5 years incarceration with no trial conclusion in sight. Reliance was placed on Gulfisha Fatima v. State (Govt. of NCT Delhi), 2026 SCC OnLine SC 10; Syed Iftikhar Andrabi v. National Investigation Agency, 2026 SCC OnLine SC 881; and Union of India v. K.A. Najeeb, (2021) 3 SCC 713, establishing that statutory restrictions melt down where trial delay is inordinate. Counsel argued the prosecution material - including statements of PW-250, PW-256, PW-268, PW-X5, disclosure statements of co-accused Bilal Ahmed Mir (D-38, D-163, D-184), and recovered diaries - did not establish a prima facie case. The appellant's alleged involvement stemmed solely from being sister of a deceased militant. The diaries contained personal writings never disseminated publicly. Parity was claimed with co-accused granted bail, citing Suhail Ahmad Thokar v. NIA (SLP (Crl.) 83/2024, order dated 22.05.2026) and Haris Nisar Langoo v. NIA, 2026:DHC:2317-DB. Medical report dated 20.08.2026 confirmed multiple ailments.
For the Appellant Kamran Ashraf Reshi
Counsel reiterated delay and parity grounds, adding that the case against the appellant was predominantly digital and non-violent. No evidence linked him to the "Abu Zamzam" Telegram group; his phone number was absent from the group. Pakistani numbers in contact directory did not prove actual contact or affiliation with proscribed organisations. The threatening pamphlet was seized from his house, not his person, with no evidence of preparation or circulation. Witness testimonies (PW-274, PW-280, PW-283, PW-281, PW-296, PW-314, PW-315) were vague and did not implicate him in any operational terrorist activity. PW-315 was the appellant's uncle and more an accused than a witness.
For the Respondent (NIA)
The SPP vehemently opposed bail, submitting both appellants were part of a larger conspiracy to wage war against India. For Sobiya Aziz, the prosecution relied on witness statements, disclosure statements of Bilal Ahmed Mir, diary contents, and handwriting expert report to establish a substantiated charge. The SPP argued that once charges are framed, the court cannot find absence of prima facie case, a condition precedent under Section 43D(5) UAPA. A death threat to PW-21/Tariq Ahmed Hajam by TRF created risk of witness intimidation. For Kamran Ashraf Reshi, the SPP cited recovery of two mobile phones with Pakistani numbers, attendance at radicalising lectures by Moulvi Bashir in August 2021, and witness statements establishing close connections with terrorists and dissemination of radicalising material on the Abu Zamzam Telegram group. The allegations were distinct and more serious than co-accused granted bail.
The Court's Analysis
The Division Bench, per Justice Navin Chawla, undertook a comprehensive examination of the interplay between Article 21 and Section 43D(5) UAPA, guided by a trilogy of Supreme Court authorities: K.A. Najeeb, Gulfisha Fatima, and Syed Iftikhar Andrabi. The Court extracted and endorsed the principle from K.A. Najeeb that statutory restrictions "do not oust the ability of the 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 the trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence."
"Section 43D(5) of UAPA is comparatively less stringent than Section 37 of the NDPS Act. Unlike the NDPS Act where the competent court needs to be satisfied that prima facie the accused is not guilty and that he is unlikely to commit another offence while on bail; there is no such precondition under UAPA. Instead, Section 43D(5) of the UAPA merely provides another possible ground for the competent court to refuse bail, in addition to the well-settled considerations like gravity of the offence, possibility of tampering with evidence, influencing the witnesses or chance of the accused evading the trial by absconsion, etc."
The Court further relied on Gulfisha Fatima, where the Supreme Court framed the constitutional inquiry as "whether continued detention remains constitutionally permissible in the circumstances of the case" - a contextual inquiry encompassing "the nature of the allegation, the statutory field, the stage of the proceedings, the realistic trajectory of the trial, the causes contributing to delay, and the risks attendant upon release." Critically, the Supreme Court mandated a differentiated, accused-specific inquiry: "Treating all accused identically irrespective of their roles would risk transforming pre-trial detention into a punitive mechanism divorced from individual circumstances."
The Court noted that Syed Iftikhar Andrabi (2026 INSC 503) reaffirmed K.A. Najeeb, holding that "even under the UAP Act, 'bail is the rule and jail is the exception'; of course, in an appropriate case, bail can be denied having regard to the facts of that particular case." The Supreme Court also highlighted abysmal conviction rates under UAPA (2-6% nationally, <1% in J&K), observing: "With these kind of statistics staring at our face, the question is, should we continue the detention of the appellant or defer the consideration to a later stage, simply because the charges are serious?"
Although the Supreme Court had referred the Article 21 vs Section 43D(5) interplay to a larger Bench in Tasleem Ahmed v. State Govt. of NCT of Delhi (order dated 22.05.2026), the High Court was bound by Union Territory of Ladakh v. Jammu and Kashmir National Conference, (2024) 18 SCC 643, to decide matters based on binding precedent without awaiting the reference outcome.
Applying these principles, the Court found: (i) both appellants had suffered nearly 5 years incarceration; (ii) only 21 of 359 witnesses examined, with no trial conclusion in sight; (iii) multiple co-accused granted bail at various levels; (iv) Sobiya Aziz was a woman with documented medical ailments; (v) Kamran Ashraf Reshi was arrested at age ~21 with allegations predominantly digital and non-violent; (vi) no positive link shown between Sobiya Aziz and the death threat to PW-21; (vii) both appellants had arguable cases for bail on merits. The Court emphasised that its observations were only for bail purposes and not on merits.
The Verdict
The appeals were allowed. The impugned orders dated 14.05.2026 (Sobiya Aziz) and 17.03.2023 (Kamran Ashraf Reshi) rejecting bail were set aside. Both appellants were directed to be released on bail in RC No. 29/2021/NIA/DLI, SC No. 2/2022, subject to twelve conditions: (i) personal bond of Rs. 2,00,000 each with two sureties of like amount; (ii) surrender of passport or affidavit of non-possession; (iii) no travel outside India without prior trial court permission; (iv) use of only one mobile/landline kept switched on, with current address and contact details furnished to IO and trial court, and 7 days' prior intimation for any change; (v) cooperation with trial and appearance on all hearing dates unless exempted; (vi) no conduct delaying trial; (vii) no contact, influence, threat, or communication with prosecution witnesses or persons acquainted with facts; (viii) no tampering with evidence, electronic material, records, devices, or documents; (ix) no public statements on merits, evidence, witnesses, or pending trial; (x) no activity prejudicing public order or trial integrity; (xi) no joining WhatsApp/social media groups circulating anti-national material, with undertaking to this effect; (xii) reporting to IO once every fortnight or as directed, with IO maintaining separate attendance register. Prosecution at liberty to seek cancellation upon violation.
What This Means For Similar Cases
Constitutional Safeguards Prevail Over Statutory Embargo
The judgment reinforces that Section 43D(5) UAPA is not an absolute bar to bail. Constitutional courts retain jurisdiction to grant bail under Article 21 when prolonged incarceration and trial delay render continued detention constitutionally impermissible. Practitioners must argue that the "rigours melt down" where: (a) incarceration exceeds a substantial part of the potential sentence; (b) trial trajectory shows no reasonable prospect of conclusion; (c) the accused's role is peripheral or non-operational. The Gulfisha Fatima framework - contextual, accused-specific, and disciplined - is now the governing standard.
Accused-Specific Inquiry Is Mandatory
Courts cannot apply a collective or undifferentiated approach merely because allegations arise from a common conspiracy. The Gulfisha Fatima three-step test requires: (i) whether prosecution material discloses prima facie statutory ingredients; (ii) whether the accused's role reflects a real and meaningful nexus to unlawful/terrorist activity, distinguished from mere association; (iii) whether the statutory threshold is crossed qua the individual without mini-trial. Defence counsel must deconstruct the chargesheet to isolate the specific material against each client, challenging vague or peripheral attributions.
Parity and Delay Are Potent Levers
- Parity: Bail granted to co-accused with similar or more serious allegations creates a strong equity argument. Track and cite every co-accused bail order (trial court, High Court, Supreme Court).
- Delay Metrics: Quantify witness examination progress (e.g., "21 of 359 witnesses in 5 years"). Present realistic trial completion projections.
- Demographic Factors: Gender (women entitled to favourable consideration per Alemla Jamir), youth (arrested at 21), and documented medical conditions are independent, cumulative factors.
- Conviction Statistics: The Supreme Court's citation of 2-6% national UAPA conviction rates (94-98% acquittal probability) and <1% in J&K is a powerful rhetorical and jurisprudential tool - cite Syed Iftikhar Andrabi para 42.3.
Stringent Conditions Are the Norm
Expect onerous bail conditions: high surety amounts (Rs. 2 lakh here), passport surrender, travel restrictions, single monitored phone, residence stability undertakings, witness non-contact clauses, social media bans, fortnightly IO reporting, and undertakings against anti-national activity. Advise clients to comply scrupulously; violation invites immediate cancellation.
Larger Bench Reference Does Not Stay Current Precedent
High Courts must apply binding Supreme Court precedent (K.A. Najeeb, Gulfisha Fatima) even when a larger Bench reference is pending (Tasleem Ahmed). Do not concede adjournments on this ground; cite Union Territory of Ladakh v. JKNC para 35.
