Citation: 2026 INSC 503.
Date of Judgment: 18 May 2026.
Background of the Case:
Syed Iftikhar Andrabi, the appellant was a government employee and Village Level Worker (VLW) in Rural Development Department, Kupwara, Jammu and Kashmir, and an active member of Jammu and Kashmir People’s Conference. He was arrested under the Jammu and Kashmir Public Safety Act, 1978 in August 2019, post abrogation of Article 370. The aforementioned detention was however, later revoked, and the order quashed by the High Court in June 2020.
On 11 June 2020, police officers after stopping a vehicle, found six packets of suspected narcotics and some amount of currency in the vehicle, the FIR was lodged at Handwara Police Station under Section 8 and 21 of NDPS Act. He was arrested the same day and the Central Government had ordered the National Investigation Agency (NIA) to probe the case. He was allegedly part of a cross-border network of narcotics and terror funding, with heroin being trafficked via the border and used to fund groups like Lashkar-e-Taiba and Hizbul Mujahideen.
He was arraigned on the following charges under Sections 8, 21, 25 and 29 of the NDPS Act along with Sections 17, 38 and 40 of the UAPA and Section 120-B of the IPC (criminal conspiracy). The Special NIA Court denied him bail in August 2024 and High Court of Jammu & Kashmir and Ladakh rejected his appeal filed under Section 21 of NIA Act in August 2025. At the time the case went to the Supreme Court, he had been incarcerated for almost six years and had yet to appear before over 350 prosecution witnesses.
Issues Involved:
(i) Whether the statutory bail embargo under Section 43-D(5) of the UAPA can override the fundamental right to personal liberty and speedy trial under Article 21, where an accused has suffered prolonged incarceration with no realistic prospect of the trial concluding within a reasonable time?
(ii) Whether a Bench of two Judges may dilute or depart from the binding ratio of a three-Judge Bench (Union of India v. K.A. Najeeb), and what judicial discipline is required in such a situation?
Rules Applied:
- Rules Cited:
(i) Section 43-D(5), UAPA: Bars release on bail if the court, on a perusal of the case diary or final report, finds reasonable grounds for believing that the accusation is prima facie true.
(ii) Article 21, Constitution of India: Protects life and personal liberty, which encompasses the right to a speedy trial.
(iii) Sections 17, 38 and 40, UAPA; Sections 8, 21, 25, 29 and 37, NDPS Act (Section 37 imposing twin conditions for bail); Section 120-B, IPC (criminal conspiracy).
(iv) Section 21, NIA Act, 2008 (appeal); Sections 25 and 27, Indian Evidence Act, 1872 (confession to a police officer being inadmissible).
- Authorities Cited: Union of India v. K.A. Najeeb (2021); Shaheen Welfare Association v. Union of India (1996); NIA v. Zahoor Ahmad Shah Watali (2019); Gurwinder Singh v. State of Punjab (2024); and Gulfisha Fatima v. State (2026).
Court’s Reasoning:
In reiterating the “rigour” of stringent statutory bail provisions that “melt down” when there is no reason to believe that the trial can be concluded within a reasonable time, the Court relied on K.A. Najeeb as its foundation. This it said, is not a license for automatic bail, but a protection against indefinite pre-trial detention as provided in special legislations.
With respect to the first, Bench said that if the delay in arresting the accused makes his detention “punitive” then Section 43-D(5) is “not the only measure” and should be set aside by the Article 21. The assessment must be contextual and not merely mechanical, that is, taking into account nature and prima facie strength of allegations, as well as stage of delay, reasons for delay and risk of tampering or flight, and consequently a balance of the same.
On its second point, it stated that the Bench had to be disciplined and reiterated that “A smaller Bench is bound by a larger Bench or to refer to one. It therefore raised serious concern in respect of Gurwinder Singh and Gulfisha Fatima who had been denied bail in the Delhi riots conspiracy case, for not applying K.A. Najeeb. The Bench also highlighted extremely low conviction in the UAPA cases in the country and particularly in Jammu and Kashmir.
By applying this set of reasoning, the Court considered several factors to be cumulatively persuasive: the fact that no recovery was made from the appellant or from his premises; the fact the police statements relied on was largely covered by the requirement under Section 25 of the Evidence Act to exclude such evidence if found untrustworthy; the fact that he had no antecedents; the fact that the trial was not even close to its end, considering the large number of witnesses; and the fact that co-accused facing similar charges had been set free, drawing the principle of parity. No mini-trial and this assessment was at a prima facie level.
Holding:
The Supreme Court allowed the appeal and granted bail to Syed Iftikhar Andrabi, subject to appropriate conditions. It held that his continued incarceration, in the face of inordinate delay and a weak prima facie case, violated Article 21. Reaffirming that bail is the rule and jail is the exception even under the UAPA, the Court restored K.A. Najeeb as the governing framework and directed courts to apply a principled, contextual inquiry in cases of prolonged pre-trial detention, while cautioning smaller Benches against eroding larger-Bench precedent.
Analysis:
The judgment is a clear reminder that the constitutionally guaranteed right to bail under special statutes is limited, and the statutory bail embargoes are not infallible, they are subject to Article 21. It means that the nature of UAPA is such that it is focused on the punitive aspect of the same.
One of the constant criticisms made of the UAPA, and the Section 120-B of the IPC that it is invariably linked with, is that it has an inchoate set of offences. Criminal conspiracy requires only the mere act of agreement to commit a crime, whereas the provisions of the UAPA on membership/association, on advocacy, and on the raising of funds (Sections 38, 40 and 17) criminalize affiliation, advocacy and intent, but not a harmful act. An individual may then be detained, even if the State has failed to prove that there was an overt criminal act, the requirement of criminal law until now. The danger of the spreading of the offence is shifted to what the offender is said to believe, intend and/or be associated with, and liability is applied to what the person is alleged to have thought.
This is a serious issue in combination with the bail system. Indeed, Section 43-D(5) places a near-presumption against release on top of these inference-based allegations: A charge, even though based on inferred intent or on mere association, is sufficient to keep a person incarcerated for years because the court is under a strict obligation to believe the prosecutor’s material. In the present case, there was no recovery, the majority of evidence by the police was not admitted, and almost six years have passed without any evidence of a trial.
A relationship between the citizen and the State is inverted, when liberty may be taken away on the basis of an allegation, which cannot be defined precisely, and when the remedy of bail is meanwhile denied. Process itself becomes the punishment, the presumption of innocence is emptied and the executive is given a power to detain without in practice any review. The absence of order is more like anarchy: the unbounded exercise of force — after all, the features that distinguish a constitutional order from arbitrary power, those of a clearly defined actus reus, the presumption of innocence and the meaningful scrutiny of detention by judges, all fall away.
This is not a new worry. The preventive and prolonged detentions linked to the UAPA are quite similar to what was the Emergency of 1975–77, where the Maintenance of Internal Security Act gave the police the power to detain mass numbers of people and the Court in ADM Jabalpur v. Shivkant Shukla (1976) declared that the right to life and liberty, guaranteed by Article 21, were suspended. That argument was soundly repudiated in the Forty-fourth Constitutional Amendment which made Articles 20 and 21 non-derogable even during an Emergency and in K.S. Puttaswamy v. Union of India (2017) the nine-Judge Bench categorically rejected the ADM Jabalpur decision and confirmed that the right to personal liberty is sacrosanct. A law that, in normal times, can provide for emergency detention by placing an intransigent bail bar, is therefore in tension with the basic structure doctrine of Kesavananda Bharati v. State of Kerala (1973) which held that the fundamental guarantees of liberty can’t be taken away, not even by constitutional amendment, let alone by ordinary legislation.
So, re-affirming K.A. Najeeb is not merely procedural; it is a mechanism which ensures that an inchoate-offence prosecution does not become an extra-judicial punishment for an ‘ordinary’ delay, which could otherwise cause the embargo to ‘melt down’. The order is nonetheless measured and it doesn’t contest the over-broad nature of the offences or the embargo itself, nor does it reveal that the principles that protect liberty are applied unevenly, even though the Delhi riots bail denials had exposed such a discrepancy.
THIS ARTICLE IS WRITTEN BY AYUSH TALWAR FROM OP JINDAL GLOBAL UNIVERSITY
