Prolonged Incarceration & Article 21 Trump UAPA Restrictions: Punjab & Haryana HC Grants Bail Citing Lengthy Custody - 2024-11-21

Punjab & Haryana High Court Grants Bail to UAPA Accused, Emphasizing Right to Speedy Trial and Prolonged Incarceration

Pathankot, Punjab – In a significant ruling emphasizing the fundamental right to liberty, the Punjab and Haryana High Court has granted bail to an accused charged under the stringent Unlawful Activities (Prevention) Act (UAPA), citing prolonged incarceration and the right to a speedy trial enshrined under Article 21 of the Indian Constitution. Justice Anupinder SinghGrewal presided over the case, setting aside an order by the Additional Sessions Judge, Pathankot, who had previously rejected the bail application.

Case Background and Allegations

The appellant was arrested in connection with FIR No. 116 dated 11.06.2020, registered at Police Station Sadar Pathankot. The charges included serious offenses under Section 25 of the Arms Act, Sections 3, 4, 5 of the Explosive Substances Act, and Sections 13, 17, 18, 18-B, 20 of the UAPA. The prosecution alleged that the appellant, a dentist by profession, was in communication with co-accused individuals and a Pakistani national through the "Conion Application." He was accused of involvement in anti-national activities, including arranging financial aid.

Arguments Presented

The appellant's counsel argued that no arms, ammunition, or incriminating materials were recovered from him. They contended that the electronic evidence allegations were unsubstantiated, with no transcripts produced in court. Furthermore, it was highlighted that sanction under Section 45 of the UAPA, necessary for prosecution, had not been obtained for the appellant. Crucially, the counsel pointed out that the appellant had been in custody for approximately two years, and co-accused in the same case had already been granted bail by the High Court.

To support their plea, the appellant's counsel relied on several landmark Supreme Court judgments, including Union of India versus K.A. Najeeb , Shoma Kanti Sen versus State of Maharashtra , Vernon versus The State of Maharashtra , Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari versus State of Uttar Pradesh , and Javed Gulam Nabi Shaikh versus State of Maharashtra . These judgments consistently underscore that prolonged custody itself can be a valid ground for bail under UAPA, invoking Article 21 of the Constitution.

The State, represented by its counsel, opposed the bail, emphasizing the recovery of arms and ammunition from co-accused and the alleged communication with handlers in Pakistan, claiming transcripts existed. They also mentioned that two out of seven prosecution witnesses had been examined, suggesting the trial was progressing.

Court's Reasoning and Reliance on Article 21

Justice Grewal , after hearing both sides, sided with the appellant. The Court noted the absence of any recovery from the appellant, the unsubstantiated electronic evidence, and the lack of UAPA sanction. Crucially, the judgment highlighted the appellant's two-year custody and the bail granted to co-accused.

The Court firmly grounded its decision in Article 21, emphasizing the fundamental right to life and liberty, which includes the right to a speedy trial. Referring to the Supreme Court's stance in Union of India versus K.A. Najeeb , the High Court reiterated that lengthy incarceration is a significant factor for granting bail, even under UAPA.

The judgment quoted extensively from Union of India versus K.A. Najeeb , emphasizing that while statutory restrictions like Section 43-D(5) of UAPA exist, they do not override the Constitutional Courts' power to grant bail based on the violation of fundamental rights. The Supreme Court in K.A. Najeeb had stated that the "rigours of such provisions 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."

Further, the judgment cited Shoma Kanti Sen , which highlighted that pre-conviction detention must be proportionate and justified. The Court reasoned that when a timely trial is unlikely and significant incarceration has occurred, bail should ordinarily be granted to maintain a balance between prosecution and the accused's fundamental rights.

Referencing Vernon versus The State of Maharashtra , the Court underscored that "serious allegations against accused by itself cannot be a reason to deny bail." Similarly, Sheikh Javed Iqbal was cited to reinforce that Article 21 is "overarching and sacrosanct" and cannot be restrained by restrictive statutory provisions if an accused's Article 21 rights are infringed.

Bail Granted with Conditions

Ultimately, the Punjab and Haryana High Court allowed the appeal, setting aside the lower court's order and granting bail to the appellant. The decision was based on the prolonged custody, lack of direct recovery, unsubstantiated electronic evidence, parity with co-accused, and the slow pace of the trial.

The bail was granted subject to several conditions, including:

• Furnishing a bail bond of Rs. 1 lakh with two sureties of Rs. 1 lakh each.
• Surrender of passport.
• Appearance before the Trial Court on every date unless exempted.
• Appearance before the Investigating Officer when summoned.
• Non-inducement or threat to witnesses.
• Non-involvement in criminal activities, especially UAPA offenses.
• No creation of third-party rights over immovable property.
• Undertaking not to seek re-examination of witnesses if absent during trial.
• Reporting to the local SHO every alternate Monday.

The Court clarified that these observations were solely for bail determination and would not influence the trial's merits. The prosecution retains the right to seek bail cancellation if any conditions are breached or witnesses are threatened.

Implications

This judgment reinforces the significance of Article 21 in UAPA cases, particularly regarding prolonged pre-trial detention. It signals that while UAPA imposes stringent bail conditions, the constitutional right to a speedy trial and personal liberty cannot be undermined. The ruling serves as a reminder that lengthy incarceration, especially when the trial's conclusion is distant, can be a compelling factor for granting bail, even under stringent legislations like UAPA.