Bail granted in UAPA/NDPS case absent recovery, direct participation; uncorroborated approver/co-accused statements and peripheral contacts insufficient for prima facie case under Sec 43D(5), especially with prolonged incarceration.

JUDGMENT :

Sanjay Parihar-J

1. The appellant, who figures as A-13 in Challan File No. 22 arising out of Crime Case No. RC-03/2020/NIA/Jammu dated 23.06.2020, registered under Section 120-B IPC, Sections 8/21 NDPS Act and Sections 17, 18 and 20 of the UAPA, is facing trial before the Court of Special Judge, NIA, Jammu (hereinafter referred to as “the Trial Court”). Aggrieved of the order dated 19.04.2025 whereby his application for grant of bail has been declined, the appellant has invoked the appellate jurisdiction of this Court under Section 21 of the NIA Act, primarily on the ground that neither any recovery has been effected from him nor is there any material to demonstrate that he had dealt with narcotic substances or generated proceeds for alleged terrorist funding in the Union Territory of Jammu and Kashmir. It is contended that the prosecution case is founded substantially upon disclosure and confessional statements of co-accused, coupled with alleged telephonic contacts, without any independent corroboration, and that despite the appellant being in custody since 01.03.2021, the evidence recorded thus far does not disclose any incriminating material against him.

2. The learned counsel for the appellant has urged that the learned Trial Court has failed to undertake the statutory exercise mandated under Section 43-D (5) of the UAPA, namely, to record satisfaction as to whether there exist reasonable grounds for believing that the accusations against the appellant are prima facie true. It is further submitted that the entire case rests upon the statements of co-accused and an approver, which in law constitute weak evidence and cannot be the sole basis to deny bail. On the other hand, the prosecution asserts that the appellant was actively involved in smuggling and transportation of narcotic substances and that the proceeds thereof were utilised for providing logistical support to militant activities, relying upon documentary material including voice clips and chats to substantiate the alleged conspiracy.

3. The legal position governing the grant of bail under the UAPA is no longer res integra. In National Investigation Agency v. Zahoor Ahmad Shah Watali , (2019) 5 SCC 9, the Hon’ble Supreme Court held that at the stage of bail, the Court must examine whether there are reasonable grounds for believing that the accusations are prima facie true, based on the material placed on record. However, the rigour of Section 43-D (5) is not absolute. In Union of India v. K.A. Najeeb , (2021) 3 SCC 713, it has been authoritatively held that constitutional courts retain the power to grant bail in cases of prolonged incarceration where the trial is unlikely to conclude within a reasonable time. In Vernon v. State of Maharashtra (2023) 10 SCC 620, the Supreme Court emphasised that the Court is not expected to act as a mere post office of the prosecution but must assess the probative value of the material relied upon. Similarly, in Asif Iqbal Tanha v. State (NCT of Delhi), (2023) 9 SCC 291, it was held that mere association or contact, in the absence of specific acts constituting terrorist activity, cannot justify denial of bail. Further, in Gurwinder Singh v. State of Punjab , 2024 INSC 92, it has been reiterated that while delay alone may not be decisive, the weakness of the prosecution case coupled with prolonged incarceration can be a valid ground for grant of bail.

4. It is equally well settled that the offence of criminal co