Court’s decision
The Delhi High Court allowed the appeals and granted bail to the accused persons under the Unlawful Activities (Prevention) Act, holding that prolonged incarceration of over four years, coupled with weak prima facie evidence, justified conditional release. The Court ruled that mere association with online content or social media groups, without evidence of active participation in terrorist acts, does not meet the threshold under Section 43D(5) of UAPA. It emphasized that continued detention would violate Article 21.
Facts
The case arose from an alleged terror conspiracy involving multiple accused linked to proscribed organisations operating in Jammu & Kashmir and beyond. As detailed in the FIR and charge sheets, the prosecution alleged a coordinated effort involving online radicalisation, propaganda dissemination, and logistical support for terrorist activities.
The appellants were arrested in October 2021 during a nationwide investigation conducted by the National Investigation Agency. As noted on pages 4–6, the allegations included participation in online propaganda networks, association with hybrid cadres, and dissemination of extremist content.
A charge sheet was filed against 26 accused, and charges were later framed under Sections 120B and 121A IPC and Section 18 of UAPA.
The trial progressed slowly, with only a small fraction of witnesses examined despite a large witness list, leading to prolonged custody of the appellants.
Issues
The Court examined whether the statutory bar on bail under Section 43D(5) of UAPA applied in the present case.
It also considered whether prolonged incarceration and delay in trial could override statutory restrictions.
Another key issue was whether the material on record established a prima facie case of involvement in terrorist activities.
Petitioner’s arguments
The appellants argued that they had been in custody for over four years, with the trial likely to take decades due to the large number of witnesses.
They contended that no overt act of terrorism was attributed to them and that the allegations were limited to passive association with social media groups or content.
It was further argued that call records and digital evidence did not establish any meaningful conspiratorial link.
The appellants also highlighted that similarly placed co-accused had been granted bail, and that continued detention would violate their fundamental rights under Article 21.
Respondent’s arguments
The prosecution argued that the allegations disclosed involvement in a serious terrorist conspiracy and attracted the statutory bar under Section 43D(5) of UAPA.
It relied on digital evidence, including alleged propaganda material, call records, and witness statements, to establish a prima facie case.
The respondent contended that even preparatory acts, including radicalisation and coordination, fall within the scope of terrorist offences.
It was also argued that the Court should not evaluate evidence in detail at the bail stage.
Analysis of the law
The Court undertook a detailed analysis of Section 43D(5) of UAPA, emphasizing that bail can be denied only if the Court finds “reasonable grounds” to believe that the accusations are prima facie true.
It relied on recent Supreme Court jurisprudence to clarify that the inquiry must be accused-specific and cannot be based on general allegations.
The Court reiterated that bail adjudication is distinct from trial and must balance individual liberty with national security.
It also emphasized that prolonged pre-trial detention cannot be justified where the evidence shows only peripheral or weak involvement.
Precedent analysis
The Court relied on Gulfisha Fatima v. State (2026) to outline the structured test under Section 43D(5), including assessment of individual role and nexus to terrorist activity.
It also referred to Thwaha Fasal v. Union of India (2021), which held that mere possession of literature or ideological sympathy does not constitute terrorist activity.
Further reliance was placed on Vernon v. State of Maharashtra (2023), reinforcing the distinction between ideological expression and active participation.
The Court also considered NIA v. Zahoor Ahmad Shah Watali (2019) on the scope of prima facie assessment at the bail stage.
Court’s reasoning
The Court found that the allegations against the appellants were largely based on their presence in social media groups and possession of digital content. As noted on pages 22–23, there was no evidence that they created or disseminated such content or participated in terrorist acts.
It observed that call detail records showed only brief and sporadic contact, insufficient to establish a conspiratorial nexus.
The Court also noted that key witness testimony failed to identify one of the appellants as a participant in radicalisation activities.
Importantly, the Court emphasized that prolonged incarceration—over four years—combined with slow trial progress violated the appellants’ right to personal liberty.
It held that continued detention in such circumstances would amount to punitive pre-trial incarceration.
Conclusion
The Delhi High Court set aside the trial court’s order and granted bail to the appellants, subject to stringent conditions, including restrictions on travel, communication, and social media activity.
Implications
This judgment is a significant development in UAPA jurisprudence, reinforcing that statutory restrictions on bail are not absolute.
It strengthens the role of Article 21 in safeguarding personal liberty even in national security cases.
The ruling also clarifies that mere digital association or ideological material is insufficient to deny bail without clear evidence of active involvement.
For future cases, it sets a strong precedent for granting bail in cases involving prolonged detention and weak evidence.
Case law references
- Gulfisha Fatima v. State (2026)
Laid down structured test for bail under Section 43D(5) UAPA. - Thwaha Fasal v. Union of India (2021)
Mere possession of extremist material does not establish membership or participation. - Vernon v. State of Maharashtra (2023)
Distinguished ideological sympathy from operational involvement. - NIA v. Zahoor Ahmad Shah Watali (2019)
Defined scope of prima facie assessment at bail stage.
FAQs
1. Can bail be granted in UAPA cases despite Section 43D(5)?
Yes. Bail can be granted if the Court finds that the allegations are not prima facie true or that the accused has only a limited or peripheral role.
2. Does prolonged detention affect bail in terrorism cases?
Yes. Courts may grant bail if prolonged incarceration violates Article 21, especially where trial is delayed.
3. Is possession of extremist content enough to deny bail?
No. Courts have held that mere possession or passive association is insufficient without proof of active involvement in terrorist acts.