The court held that a lack of 'clear and present danger' can justify granting bail under UAPA, even when a prima facie case exists, emphasizing the importance of protecting fundamental rights.

JUDGMENT :

Atul Sreedharan, J.

1. This case has compelled us to examine two questions of law. Whether, section 43D(5) of the Unlawful Activities (Prevention) Act, 1967, where despite the existence of a prima facie case against the accused, the absence of a “Need to Arrest” would result in violation of the right to life of the accused under Article 21 of the Constitution and if it does, whether the Court can still grant bail on account of the violation of Article 21 even though a prima facie case is made out against the accused? And whether, the concept of “Clear and Present Danger” ought to be taken into account by the Courts while deciding a bail application where the bar under section 43D(5) is applicable?

2. The Criminal Appeal (D) No. 42/2022 has been filed by the appellant under the relevant provisions of the National Investigation Act (hereinafter referred to as the 'NIA'), aggrieved by the order dated 15.07.2022, passed by the Ld. Special Judge (UAPA)/ 3rd Additional Sessions Judge, Jammu, by which the bail application of the appellant was dismissed. The petition u/s. 482 Cr.P.C bearing CRM (M) No. 472/2023has been filed against order dated 16.03.2023 passed by the Ld. Special Judge, by which the charges were framed against the Petitioner u/s. 13/18 of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as “UAPA”), 121, 153B/201 IPC and 35/39 of the Foreign Contribution (Regulation) Act, 2010 (hereinafter referred to as the “FCRA”). It is pertinent to mention that the appellant is the Accused No. 2 (hereinafter referred to as “A2”) with one Abdul Aala Fazili being the Accused No. 1 (hereinafter referred to as “A1”). In this order, this Court is not concerned with charges framed against A1. As the order in the bail application (in the form of a Criminal Appeal u/s. 21 of the National Investigation Agency Act, 2008 [hereinafter referred to as the “NIA Act”]) would have a direct bearing on the criminal revision filed by the appellant against the order framing charge, both these cases are being decided by a common order. The appellant has been arrested on 20.05.2022 in FIR No. 1/2022 of P.S. JIC/SIA, Jammu. Prolix arguments have been forwarded by the Respondent/Prosecution in this case which compels this Court to deal it with some elaboration.

3. The run up to the present case against the appellant is relevant. As per the averments in the appeal, the appellant was arrested by P.S. Pulwama in connection with FIR No. 19/2022 in which he was granted bail by the TADA/POTA Court at Srinagar. However, the police, without releasing the appellant, shifted his custody to P.S. Shopian in FIR No. 6/2021, registered there, in which too, the appellant was granted bail by the Court of the Munsiff, Shopian. However, the appellant was still not released, and his custody was shifted to P.S. Safa Kadal in another case registered at that police station. It is also averred that before the Court of competent jurisdiction at Srinagar could decide his bail application, the appellant was taken into preventive detention under the provisions of the Jammu and Kashmir Public Safety Act, 1978 (hereinafter referred to as “PSA”). It was in this backdrop that the current case against the appellant was dug out by the Respondent with the registration of the aforementioned FIR.

THE PROSECUTION'S CASE AGAINST THE APPELLANT

4. The case, as undisputed by the prosecution/Respondent, is that (A) a source information received on 04.04.2022, led to the discovery of an article titled “The shackles of slavery will break” written by A1 and published on a webpage on the domain of the appellant,www.thekashmirwalla.com. (B) It is alleged that the appellant is a part of an ongoing operation to build and propagate the false narrative that is essential to sustain the secessionist-cum-terrorist campaign and take the same to its logical conclusion which is the breakup of the Indian Union and the secession of Jammu and Kashmir from India and its consequent access