Islam Ali (A6) vs National Investigation Agency, (N.I.A.)

It was primarily contended that there is no cogent evidence on record to demonstrate that the accused-appellants were present in or around the vicinity of the deceased’s shop from 10.06.2022 to 28.06.2022.

It was further submitted that the accused-appellants were never seen in the vicinity of the shop during the relevant period leading up to the incident.

Learned counsel emphatically argued that there is no iota of evidence on record to suggest that the accused-appellants had sent any message, voice note, or text on any WhatsApp group that could be construed as hurting the religious faith of any community or promoting enmity.

It was submitted that the co-accused, namely Farhad Mohammed and Mohammed Javed, have already been granted bail by the learned Trial Court and by this Court, respectively, on the exact same set of charges as framed against the present accused-appellants.

Learned counsel further relied upon the prolonged period of incarceration, submitting that the appellants have been in custody for over four and a half years. It was argued that the trial will take its own considerable time, given that the prosecution proposes to examine approximately 180 witnesses. Although the charge-sheet was filed on 22.08.2022 and charges were framed in early 2024, the trial is far from conclusion. In regard to the aforesaid submission, reliance was placed upon the authoritative pronouncement of the Hon’ble Supreme Court in Union of India v. K.A. Najeeb^{11.(2021) 3 SCC 713}, to contend that the statutory embargo as enshrined under Section 43D(5) of the UAPA cannot eclipse the fundamental right to a speedy trial guaranteed under Article 21 of the Constitution of India. It was argued that where a timely trial is not possible, the constitutional courts are obligated to enlarge the accused on bail, regardless of the statutory restrictions. Moreover, reliance was placed on the recent judgment passed by the Hon’ble Supreme Court in Syed Iftikhar Andrabi v. NIA^{22.2026 SCC OnLine SC 881}, which reaffirmed the primacy of Article 21 of the Constitution of India and clarified that the dictum laid down in K.A. Najeeb (supra) is binding law that cannot be diluted, holding that Section 43D(5) "melts down" in the face of prolonged pre-trial incarceration.

It was further contended that the disclosure statements of the appellants were recorded in the English language, which they do not comprehend, therefore vitiating the entire recovery carried out as per the provisions enshrined under Section 27 of the Indian Evidence Act, 1872 (hereinafter referred to as the 'IEA'). It was argued that such statements are also hit by Section 25 of the IEA.

It was next submitted that the names of the appellants were not reflected in the FIR and that the implication of the appellants is solely based on presumptions, assumptions, and Call Detail Records (CDRs) merely because they are neighbors and were regularly communicating with each other over the years.

It was lastly submitted that there are no criminal antecedents registered against the accused-appellants and that they are the sole breadwinners of their respective families.

Reliance in regard to the aforesaid submissions has also been placed upon the ratio dated 17.04.2023 enunciated by the Hon'ble Supreme Court in the case of Yedala Subba Rao v. Union of India^{33.Criminal Appeal No. 1153/2023 (Arising out of SLP (Crl.) No.101/2021)} and it was prayed that the accused-appellants may be released on bail.

It was submitted that the FIR has been registered under a Special Act-UAPA, and the investigation was meticulously carried out by a specialized agency-NIA. It was next submitted that the accused-appellants played an active, indispensable, and integral role in the commission of the alleged crime.

It was contended that the evidence on record, including witness statements and investigative material, categorically transpires that a deep-rooted criminal conspiracy was hatched. It was submitted that the unlawful activities were executed in a highly pre-planned and pre-meditated manner, culminating in a brutal murder and a heinous offence against the State.

It was argued that a brutal murder was committed in broad daylight pursuant to a conspiracy hatched by all the appellants along with the main accused. It was further submitted that the subsequent broadcasting and circulation of videos of the gruesome act through various social media platforms was a calculated move with the sole aim and object to instill fear, terrorize the common conscience of the society, and strike terror in the nation at large.

It was urged that the said incident was deliberately given a communal colour with the malicious intention to create a deep divide in the social fabric between two predominant communities of the country, disrupt the communal tranquility of the State at large, and project an international flavor to the terror act.

Learned Senior Counsel relied upon the statutory embargo as enshrined under Section 43D(5) and (6) of the UAPA, 1967, and further relied upon the ratio laid down by the Hon'ble Supreme Court in National Investigation Agency v. Zahoor Ahmad Shah Watali^{44.(2019) 5 SCC 1} and it was argued that as per the said dictum, the Court is not required to conduct a mini-trial or weigh the evidence meticulously at the bail stage. The Court must look at the material provided by the investigative agency at its face value, and if it discloses reasonable grounds for believing the accusation to be prima facie true, bail must be rejected. It was contended that the standard of scrutiny is even narrower post the framing of charges.

Addressing the argument of delay qua the conduct of trial, the learned Senior Counsel submitted that on the request of the State, the trial is being conducted on a day-to-day basis expeditiously. However, the said request had vehemently been objected to by the appellants, thereby making the appellants themselves attributable to the alleged delay.

Learned ASG clarified that the list of witnesses has been considerably shaved down from 180 to 89, and nearly 30 material witnesses have already been examined, therefore, the ratio laid down by the Hon'ble Supreme Court in K.A. Najeeb (supra) is not attracted to the present case, as the trial is progressing rapidly.

Distinguishing the case of the present accused-appellants from the co-accused who were granted bail, it was submitted that the active role of every appellant is distinct and well-documented in the charge-sheet. The co-accused who were granted bail stand on a completely different set of factual matrices as those of the present appellants as one of the co-accused was minor and he was granted the concession of bail on the ground of juvenility.

It was emphasized that the statements, call details, video recordings, and recovery of weapons from the accused-appellants constitute concrete, tangible evidence supporting the prosecution’s case of a heinous terrorist act, and therefore, it was prayed that the present batch of appeals may be dismissed.

From the foregoing discussion, certain propositions governing the application of Section 43D(5) emerge with clarity. First, the provision embodies a deliberate legislative departure from ordinary bail jurisprudence, premised upon the distinctive nature of offences under Chapters IV and VI of the Act. Second, the expression "prima facie true" mandates a threshold judicial inquiry which is neither perfunctory nor adjudicatory, requiring the Court to examine whether the prosecution material, taken at face value, discloses the essential statutory ingredients of the alleged offence. Third, the inquiry is necessarily accused- specific, directed to the role and attribution qua the individual, and does not admit of collective or undifferentiated treatment merely because allegations arise from a common transaction or conspiracy. Fourth, the bail stage under Section 43D(5) is not a forum for evaluating defences, weighing evidence, or conducting a mini- trial; judicial restraint at this stage is not an abdication of duty but a fulfilment of the statutory mandate. These propositions, read together, define the contours of judicial power and responsibility under the provision.

The correct application of Section 43D(5), therefore, requires the Court to undertake a structured inquiry confined to the following:

whether the prosecution material, accepted as it stands, discloses a prima facie case satisfying the statutory ingredients of the offence alleged;

whether the role attributed to the accused reflects a real and meaningful nexus to the unlawful activity or terrorist activity proscribed under the Act, as distinguished from mere association or peripheral presence; and

whether the statutory threshold is crossed qua the individual accused, without embarking upon an assessment reserved after full- fledged trial.

Where these requirements are met, the statutory restraint on the grant of bail must operate with full force; where they are not, the embargo stands lifted. This approach preserves the legislative purpose of the Act, and ensures that the exceptional nature of the bail regime under Section 43D(5) is neither diluted by overreach nor distorted by mechanical application..." (emphasis supplied)

The Prima Facie True Test: In NIA v. Zahoor Ahmad Shah Watali (supra), the Hon’ble Supreme Court categorically clarified that the degree of satisfaction required at the bail stage is only to assess whether the accusations are prima facie true based on broad probabilities. It is further held that the Court cannot evaluate the admissibility, reliability, or weigh the evidence as if conducting a mini-trial. The prosecution material must be accepted at face value. Moreover, as correctly pointed out by the learned ASG, since charges have already been framed in the present case, the material has already crossed a preliminary judicial filter, thereby elevating the threshold for the accused. The relevant extracts of the ratio laid down by the Hon’ble Supreme Court in Zahoor Ahmad Shah Watali (supra) is reproduced hereunder:

Learned counsel for the appellants have relied on the dictum enunciated by the Hon'ble Supreme Court in K.A. Najeeb (supra), wherein a three-judge bench categorically held that the statutory restriction under Section 43D(5) cannot render the constitutional guarantee of personal liberty as enshrined under Article 21 of the Constitution of India illusory. The Hon'ble Court held that the rigors of Section 43D(5) will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. The said principle was recently reaffirmed by the Hon'ble Supreme Court with formidable clarity in Syed Iftikhar Andrabi (supra) wherein the Hon'ble Supreme Court categorically stated that the ratio encapsulated in K.A. Najeeb (supra) is a binding law entitled to the protection of stare decisis and the same cannot be circumvented or diluted. It is further reiterated and clarified that anti-terror legislation cannot create a parallel constitutional order where liberty stands suspended indefinitely, and that the dictum enunciated in the case of Zahoor Ahmed Shah Watali (supra) cannot be used as a universal anti-bail trump card to justify endless pre-trial detention of the accused.

The NIA has completed a detailed and comprehensive investigation, filed the charge-sheet, and the learned Trial Court has already framed charges against the accused-appellants. This establishes that upon a prima facie evaluation, there exists sufficient material to proceed against the appellants, and therefore, the foundational test laid down by the Hon'ble Supreme Court in Zahoor Ahmad Shah Watali (supra) is squarely met at this stage.

The nature of the crime alleged against the present accused-appellants is not an ordinary offence; it is a calculated act of terror designed to strike fear into the populace at large. The prosecution has alleged a deep-rooted, organized criminal conspiracy involving a group of persons, including the appellants, who allegedly played active and specific roles in facilitating the crime. A conspiracy of this nature is often established by circumstantial material, tacit understandings, and electronic records (CDRs), which the prosecution has placed on record.

While the learned counsel appearing on behalf of the accused-appellants have cited the judgment passed by the Hon'ble Supreme Court in K.A. Najeeb (supra) and Syed Iftikhar Andrabi (supra) regarding prolonged incarceration of approximately four and a half years, we must view this in the context of the trial's progress. Unlike cases where the trial has not even commenced or where hundreds of witnesses remain untouched, the learned ASG has demonstrated that the trial in the present case is proceeding at a rapid pace on a day-to-day basis. The said material fact has also been corroborated by the fact that the prosecution has reduced its witness list significantly, and approximately 30 primary witnesses have already been examined, and therefore, it cannot be said that the trial is entirely stalled or that there is no likelihood of trial being completed within a reasonable time. We are of the considered view that the factual matrix involved in the present case is distinguishable from the extreme delay that warranted the invocation of the Article 21 of the Constitution "melt down" principle as encapsulated by the Hon'ble Supreme Court in K.A. Najeeb (supra) and Syed Iftikhar Andrabi (supra), and therefore, the said dicta are not applicable to the present case.

A prima facie consideration, which is neither perfunctory nor adjudicatory, requires the Court to examine whether the prosecution material, taken at face value, discloses the essential statutory ingredients of the alleged offences. Upon perusal of the detailed charge-sheet placed on record by the respondent-NIA, we find that the accusations against the appellants regarding their participation in the conspiracy are prima facie made out.

We are conscious of the fact that the inquiry at the bail stage must be accused-specific. However, it is a well-settled proposition of law that the stage of bail does not require or permit the evaluation of defenses, such as the language of the disclosure statements as contended by the learned counsel appearing on behalf of the appellant, the weighing of evidence, or the conducting of a mini-trial regarding the admissibility of electronic evidence, as these issues are strictly reserved for the learned Trial Court to examine during the course of trial.