DELHI HIGH COURT GRANTS BAIL TO ALLEGED PRO-IS TERROR MODULE MEMBER IN UAPA CASE AFTER EIGHT YEARS IN CUSTODY:

The Delhi High Court has granted bail to a man accused of membership in the alleged pro-IS group Harkat-ul-Harb-E-Islam after he spent nearly eight years in custody, during which only 40 of the 120 prosecution witnesses had been examined. The Court found that the trial was unlikely to conclude in the near future and that the testimony bearing on his alleged role was not sufficiently grave to justify continued pre-trial detention. The appeal under Section 21(4) of the National Investigation Agency Act, 2008 challenged an Additional Sessions Judge’s refusal of bail in an NIA case involving offences under the Indian Penal Code, the Unlawful Activities (Prevention) Act and the Explosive Substances Act.

A Bench of Justice Navin Chawla and Justice Ravinder Dudeja noted that the appellant had been arrested on 26 December 2018 and had remained in jail for almost eight years. Even after the prosecution indicated it would drop 39 witnesses, the trial was not expected to end soon. Advocate Sarim Naved appeared for the appellant while Special Public Prosecutor Rahul Tyagi represented the NIA.

According to the NIA, the appellant belonged to Harkat-ul-Harb-E-Islam, a group said to support the ideology of ISIS and Jaish-e-Mohammed. He was alleged to have facilitated contacts for procuring weapons in western Uttar Pradesh and to have established links in Jammu and Kashmir for meetings with militants, training and weapons. The investigation claimed he had travelled twice to Jammu and Kashmir with a co-accused, stayed with a previous acquaintance, and that electronic material and chats recovered from his devices, along with disclosure statements and pointing-out memoranda, supported the charges.

The appellant maintained that he was not part of the core module and at most had a peripheral role. He submitted that the three principal witnesses concerning the Kashmir visits had already deposed and that their statements did not show he had sought or shown interest in meeting militants. He sought bail primarily on the ground of prolonged incarceration and the slow progress of the trial. The NIA opposed the plea, alleging that he had introduced principal members of the module to a person who facilitated arms procurement, attempted to contact militants for training and possessed incriminating material. It also urged the High Court not to consider testimony recorded after the trial court had rejected bail and suggested the appellant should approach the trial court again.

The Court referred to its earlier decision in Khuram Parvez and to the Supreme Court’s ruling in Union of India v. K.A. Najeeb, which recognised the power of constitutional courts to grant bail where prolonged incarceration and an improbable early conclusion of trial result in a violation of the right to a speedy trial under Article 21, even in the face of statutory restrictions under Section 43D(5) of the UAPA. It also took into account the principles laid down in Gulfisha Fatima, emphasising that the delay inquiry must be contextual and must examine the nature of the allegations, the stage of the proceedings, the realistic trajectory of the trial and the risks of release. The Court further noted that the interplay between Article 21 and Section 43D(5) had been referred to a larger Bench, yet a pending reference did not permit it to defer adjudication; it was bound to decide the matter on the law as it presently stands.

Rejecting the NIA’s request to ignore subsequent testimony, the Court held that, given the lengthy incarceration and the prolonged pendency of the appeal itself, it would not be just to remand the matter. It examined the statements of the three principal witnesses linked to the Kashmir visits and found, without undertaking a detailed analysis that might prejudice the trial, that they were not grave enough to prolong detention. While acknowledging that electronic chats recovered from the appellant’s phone were serious, the Court held that, viewed against the period already spent in custody, they did not justify continued denial of bail.

The High Court accordingly set aside the order refusing bail and directed the appellant’s release on a personal bond of ₹50,000 with two sureties of like amount. He was required to surrender his passport, remain in the country without prior permission, stay within his native district except for attending the trial or reporting to the NIA, keep one disclosed telephone number operational, attend the trial unless exempted, and report to the NIA’s Lucknow Branch once every fortnight. He was restrained from contacting witnesses, the complainant, co-accused or their families, tampering with evidence, delaying the trial, making public statements about the case or circulating anti-national material. The prosecution was given liberty to seek cancellation of bail upon any breach. The Court clarified that its observations were limited to the bail decision and would not influence the merits of the pending trial.