Case at a Glance
A Special Judge had granted bail on 29 September 2026 to Sachin Waze, a former Assistant Police Inspector of the Mumbai Crime Branch and Accused No. 1 in the 2021 Antilia bomb scare and Mansukh Hiran death case. The NIA appealed. A Division Bench of the Bombay High Court held that the trial court had ignored the settled tests for bail under the UAPA, that the bar in Section 43D(5) “operates with full force” once the accusation is prima facie true, and that long custody cannot be the only ground for bail. The bail order was quashed and the NIA’s appeal allowed.
In February 2021 a Scorpio with a fake number plate, 20 gelatin sticks and a threatening note naming the Ambani family was found near their residence on Carmichael Road, Mumbai. In March 2021 the vehicle’s owner, Mansukh Hiran, was found dead. The investigation moved from the local police to the ATS and then to the National Investigation Agency. Sachin Waze, a former Assistant Police Inspector in the Crime Intelligence Unit of the Mumbai Crime Branch, is Accused No. 1 in Special Case No. 1090 of 2021. Charges were framed on 1 August 2026, including offences under the Unlawful Activities (Prevention) Act.
An earlier bail plea had been rejected on 16 September 2023. An appeal against that rejection, filed 778 days late, was disposed of on 7 August 2026 with liberty to apply afresh. On the fresh application (Exhibit 601), the Special Judge granted bail on 29 September 2026. The NIA challenged that order in this criminal appeal. The accused relied on his long custody, argued that no terrorist act had occurred because the gelatin sticks had no detonators, said the motive was personal, and claimed parity with co-accused who had been granted bail.
The Key Question Before the Court
Could the Special Court grant bail to an accused charged under the UAPA on the strength of long custody and a split between the murder and the terror conspiracy, without applying the Section 43D(5) test?
Why the Bail Order Could Not Stand
The Bench applied the standard laid down in National Investigation Agency v. Zahoor Ahmad Shah Watali, (2019) 04 SC CK 0158, under which the court at the bail stage looks at the material as a whole on broad probabilities, and the degree of satisfaction is lighter than that required for discharge or framing of charge. It also considered Gurwinder Singh v. State of Punjab, (2024) 02 SC CK 0008, Gulfisha Fatima v. State (NCT of Delhi), (2026) 01 SC CK 1851 and Syed Iftikar Andrabi v. NIA, (2026) 05 SC CK 0451. Once the accusation is prima facie true, the Court held, “the statutory embargo prescribed under Section 43D(5) operates with full force.” It also noted from Gulfisha Fatima that the bail stage is “not a forum for evaluating defences” and that each accused’s case must be assessed on its own.
The Court was sharply critical of the trial court. It recorded its “profound concern as to the casual manner in which the trial Court has dealt with” the application, held that the order “failed to apply and consider any of the settled legal parameters” and had given “a complete go-bye” to them, and described the view that framing of charge needs less satisfaction than bail as “absolute legal perversity.” On custody, it held that “the argument of prolonged pre-trial incarceration cannot be a singular factor or a sole consideration for bail,” and that “incarceration of 5 years cannot be said to be long incarceration in the facts of the present case,” while calling for “prioritization and expedition of the case.”
What the Court Actually Held
- The Special Judge’s order dated 29 September 2026 granting bail to Accused No. 1 in Special Case No. 1090 of 2021 was quashed and set aside.
- Once the accusation under the UAPA is prima facie true, the bar in Section 43D(5) operates with full force; the bail stage is not a forum for evaluating defences.
- Prolonged pre-trial custody cannot be the sole consideration for bail; in the facts of this case five years was not treated as long incarceration.
- The NIA’s appeal was allowed, and the interim application, which was not pressed, was disposed of.
Why This Judgment Matters
- It shows that appellate courts will closely scrutinise UAPA bail orders that skip the Section 43D(5) and Watali analysis.
- It clarifies that the “bail is the rule” principle and long custody arguments do not, by themselves, override the statutory bar.
- It is a reminder to trial courts to record reasons on every settled parameter, including why an earlier bail plea was rejected.
What Should Advocates Take Away From the Judgment?
For the Accused
- Long custody remains relevant, but must be argued with the other bail factors and not alone.
- Parity claims need an accused-specific comparison, not collective treatment of co-accused.
- Pressing for an early trial may be the more effective route where Section 43D(5) applies.
For Counsel
- Frame UAPA bail arguments around the Watali test of the material read as a whole.
- Address the reasons for rejection of earlier bail applications in any fresh plea.
- Defences on merits, such as the absence of detonators, are not decided at the bail stage.
Key Takeaways
- Section 43D(5) UAPA bars bail where the accusation is prima facie true, and the Court applied it in full.
- Long incarceration is a factor, but not a stand-alone ground for bail in UAPA cases.
- A bail order that ignores settled parameters is liable to be set aside in appeal.
- The Court called for priority and expedition in the trial.
Frequently Asked Questions
Why was Sachin Waze’s bail cancelled?
The Bombay High Court found that the Special Judge had not applied the settled legal tests for bail under the UAPA, including Section 43D(5), and set aside the bail order on the NIA’s appeal.
Does long custody entitle an accused to bail under the UAPA?
Not by itself. The Court held that prolonged pre-trial incarceration cannot be the only consideration, and that five years was not long in the facts of this case.
What is the test for bail under Section 43D(5) UAPA?
Following National Investigation Agency v. Zahoor Ahmad Shah Watali, the court looks at the material as a whole on broad probabilities to see whether the accusation is prima facie true; if it is, bail is barred.
Conclusion
The judgment restores the strict statutory test for bail in terror cases and faults the trial court for granting bail without engaging with it. It does not decide guilt; the Bench limited itself to the bail question and urged an early trial.
Practical takeaway: In UAPA bail matters, address the Section 43D(5) threshold head-on; arguments based only on custody or parity are unlikely to succeed.
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