It is definitely most heartening to see that the Supreme Court in a most robust, reasonable, remarkable and recent judgment titled Syed Iftikhar Andrabi Vs NIA, Jammu in Criminal Appeal arising out of SLP (Criminal) No. 1090 of 2026 and cited in Neutral Citation No.: 2026 INSC 503 that was pronounced most recently on May 18, 2026 has dared to openly express its most serious reservations about the notable judgment delivered by a two Judge Bench of Apex Court in January 2026 in Gulfisha Fatima v. State which denied bail to Umar Khalid and Sharjeel Imam in the Delhi riots larger conspiracy case ruling explicitly that it did not properly follow the judgment that was delivered by a three-Judge Bench in 2021 in Union of India v. KA Najeeb which recognized long delay in trial as a ground for bail in cases under the Unlawful Activities Prevention Act.
We need to note that the Apex Court also expressed its disapproval of the judgment delivered by the two-Judge Bench in 2024 in Gurwinder Singh v. Union of India for not applying KA Najeeb.
What also must be noticed is that a Bench of Apex Court comprising of Hon’ble Mrs Justice BV Nagarathna who next year will be first women Chief Justice of India (CJI) and Hon’ble Mr Justice Ujjal Bhuyan made these most relevant observations while allowing the bail plea of one Syed Iftikhar Andrabi who has been under custody for over 6 years in a UAPA case for allegedly funding terrorism through supply of narcotics.
Key Observations by the Supreme Court
| Issue | Supreme Court Observation |
|---|---|
| Gulfisha Fatima Judgment | Bench expressed serious reservations regarding dilution of KA Najeeb principles. |
| KA Najeeb Principle | Long incarceration and delay in trial can justify bail under UAPA. |
| Judicial Discipline | Smaller benches cannot disregard or dilute larger bench rulings. |
| Section 43-D(5) UAPA | Cannot be used as the sole basis to deny bail indefinitely. |
| Article 21 | Personal liberty and speedy trial remain constitutionally protected. |
Cornerstone of the Judgment
Most significantly, the Bench encapsulates in para 29 what constitutes the cornerstone of this notable judgment postulating precisely that,
“We have serious reservations on various aspects of the judgment in Gulfisha Fatima, including foreclosing the right of the two appellants to seek bail for a period of one year. The judgment in Gulfisha Fatima would have us believe that Najeeb is only a narrow and exceptional departure from Section 43-D(5) justified in extreme factual situations. It is this hollowing out of the import of the observations in Najeeb that we are concerned with.”
Importance of the KA Najeeb Principle
Equally significant is that the Bench points out in para 30 that,
“No reading of Najeeb suggests that the mere passage of time, divorced from all surrounding circumstances, mechanically entitles an accused to release. The real concern addressed in Najeeb lay elsewhere. This Court was concerned with the manner in which Section 43-D(5) was, in practice, being deployed as an almost conclusive basis for denial of bail notwithstanding extraordinary delay in trial and prolonged incarceration.
It is precisely for that reason that this Court observed that the ‘rigours’ of Section 43-D(5) would ‘melt down’ where there is no likelihood of the trial being completed within a reasonable time and where the period of incarceration undergone has already exceeded a substantial part of the prescribed sentence.
This Court in Najeeb cautioned that such an approach was necessary to prevent provisions like Section 43-D(5) from being used as ‘the sole metric for denial of bail or for wholesale breach of the constitutional right to speedy trial.’”
Supreme Court on Judicial Discipline
It also cannot go unnoticed that the Apex Court Bench held that it was difficult to accept the views taken in Gurwinder Singh and Gulfisha Fatima.
The Bench held unequivocally that,
“A judgment rendered by a bench of lesser strength is bound by the law declared by the bench of greater strength. Judicial discipline mandates that such a binding precedent must either be followed or, in case of doubt, be referred to a larger bench. A smaller bench cannot dilute, circumvent or disregard the ratio of a larger bench.”
The Bench also drew attention in this regard by observing that the pre-Najeeb judgment in NIA v. Zahoor Ahmed Shah Watali (2019) cannot be invoked to justify prolonged pre-trial incarceration under UAPA.
Hence, the attempt made in Gurwinder Singh to read Watali as laying down a general rule of bail denial in UAPA cases is difficult to reconcile with.
Constitutional Question Raised by the Court
At the very outset, this learned, laudable, landmark, logical and latest judgment authored by Hon’ble Mr Justice Ujjal Bhuyan for a Bench of Apex Court comprising of Hon’ble Mrs Justice BV Nagarathna and himself sets the ball in motion by first and foremost putting forth in para 2 that,
“The present case raises an important question concerning the interface between Section 43-D(5) of the Unlawful Activities (Prevention) Act, 1967 and the constitutional guarantee of personal liberty under Article 21 of the Constitution of India.
More particularly, the issue concerns the propriety of smaller Benches progressively hollowing out the constitutional force of a larger Bench decision without ever expressly disagreeing with it.”
Background of the Case
To put things in perspective, the Bench envisages in para 3 that,
“The above question arises in the context of the challenge by the appellant to the judgment and order dated 19.08.2025 passed by the High Court of Jammu & Kashmir and Ladakh at Jammu (briefly ‘the High Court’ hereinafter) in Criminal Appeal (D.) No. 20/2024 (Syed Iftikhar Andrabi Vs. National Investigation Agency, Jammu).
3.1. It may be mentioned that by order dated 10.08.2024, the third Additional Sessions Judge, Jammu designated as the Special National Investigation Agency (NIA) Court rejected the bail application of the appellant in R.C. No. 03/2020/NIA/JMU registered under Sections 17, 38 and 40 of the Unlawful Activities (Prevention) Act, 1967 read with Sections 8, 21, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 read with Section 120B of the Indian Penal Code, 1860 (IPC).
By the impugned judgment and order dated 19.08.2025, the High Court upheld the order passed by the Special NIA Court and dismissed the appeal filed by the appellant under Section 21 of the National Investigation Agency Act, 2008.”
Legal Significance of the Ruling
- Reaffirms the constitutional protection of personal liberty under Article 21.
- Strengthens the precedent laid down in Union of India v. KA Najeeb.
- Clarifies that prolonged incarceration cannot be justified mechanically under UAPA.
- Emphasizes adherence to larger bench precedents by smaller benches.
- Raises concerns regarding misuse of Section 43-D(5) in bail matters.
The Supreme Court’s ruling in Syed Iftikhar Andrabi Vs NIA, Jammu marks a highly significant development in UAPA jurisprudence and constitutional criminal law. The judgment strongly reiterates that constitutional courts cannot permit prolonged incarceration and delay in trial to erode the fundamental right to personal liberty guaranteed under Article 21 of the Constitution of India.
By expressing serious reservations over the reasoning adopted in Gulfisha Fatima and reaffirming the binding authority of KA Najeeb, the Apex Court has once again underscored the importance of judicial discipline, constitutional safeguards, and the right to speedy trial in bail jurisprudence under stringent anti-terror laws.
Supreme Court Bail Plea In NDPS And UAPA Case
While elaborating on relevant facts, the Bench states in para 5 that, “Appellant was a government employee in the Rural Development Department, serving at Kupwara. It is pleaded that appellant is an ardent advocate of the constitutional, federal and democratic set up of our country and is a supporter of Jammu & Kashmir People’s Conference, a registered mainstream political party.
Preventive Detention After Article 370 Abrogation
5.1. Appellant was taken into preventive detention on 07.08.2019 under the Jammu & Kashmir Public Safety Act, 1978 after abrogation of Article 370 and was lodged in Central Jail, Srinagar. Thereafter, he was shifted to and lodged in Central Jail, Agra. In the dossier and the grounds of detention, it was mentioned that appellant was a government employee and posted as a Village Level Worker in the Rural Development Department. He is a political activist associated with People’s Conference and has close connection with the people. To ensure that there was no mayhem, disorder and law and order problem in view of the fragile law and order situation following abrogation of Article 370, the Superintendent of Police, Handwara recommended detention of the appellant under the provisions of the Jammu & Kashmir Public Safety Act, 1978.
Challenge To Detention Order Before High Court
5.2. Appellant challenged the order of preventive detention dated 07.08.2019 before the High Court in W.P. (Crl.) No. 261/2019. The case was heard on 12.03.2020 and the judgment was reserved.
Detention Revoked And High Court Quashes Order
5.3. In the meanwhile, it is stated that the preventive detention of the appellant was revoked by the Government on 25.04.2020 and he was released from custody. High Court also delivered the judgment on 26.06.2020 quashing the order of preventive detention dated 07.08.2019. High Court noted in the said judgment that though the District Magistrate had relied upon ‘other incriminating material’ to arrive at the satisfaction that appellant had to be preventively detained, nothing was mentioned as to what were the ‘other incriminating material’. Those were also not furnished to the appellant which prevented him from making an effective representation, rendering the preventive detention of the appellant untenable.
FIR Under NDPS Act And Allegations
5.4. A first information being FIR No. 183/2020 was lodged by the police at Handwara Police Station on 11.06.2020 under Sections 8 and 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (briefly ‘the NDPS Act’ hereinafter). The allegation in the FIR is that police during checking of the vehicles and pedestrians at Kuhroo Bridge stopped a white coloured vehicle (Creta model) without registration, which was on its way from Baramulla to Handwara.
- A black bag was found under the front seat of the vehicle.
- Indian currency notes of 500 denomination were allegedly recovered.
- Six packets of suspected narcotic substances were allegedly found from the dicky of the vehicle.
- The driver Abdul Momin was taken into custody.
In connection with the aforesaid police case, appellant was brought to the police station for investigation whereafter he was arrested on 11.06.2020. As per the disclosure memo of the accused appellant, it is stated that during investigation of FIR No. 183/2020, the accused appellant in the presence of Handwara Police Special Investigation Team (SIT) disclosed that he had taken heroin from Abdul Momin Peer and that he could recover the same by pointing out.
NIA Takes Over Investigation
5.5. It appears that Central Government vide letter dated 22.06.2020 directed the National Investigation Agency (NIA) to conduct investigation into FIR No. 183/2020. Accordingly, NIA re-registered the same as FIR No. RC-03/2020/NIA/JMU.
In the newly registered FIR, NIA mentioned:
| Investigation Findings | Details |
|---|---|
| Vehicle Interception | White coloured Creta vehicle intercepted at Kuhroo Bridge while proceeding towards Handwara. |
| Cash Recovery | Large amount of cash in Rs. 500 denomination allegedly recovered. |
| Contraband Recovery | Six packets of heroin-like substance allegedly seized. |
| Further Raids | Raids conducted at different locations in Handwara. |
| Additional Recovery | 15 kgs of contraband and cash amounting to Rs. 1.15 crores allegedly recovered. |
It was further mentioned that one of the arrested persons i.e. the appellant is a close relative of Mohd. Qasim Geelani and Mohd. Yusuf Geelani who are currently in Pakistan; being commanders of proscribed terrorist organization LeT and presently operating from across the border.
NIA Chargesheet And UAPA Allegations
5.6. NIA filed chargesheet before the Special NIA Court on 05.12.2020 being Chargesheet No. 08/2020.
Insofar as the appellant is concerned:
- He was arrayed as accused No. 2.
- Cash amounting to Rs. 35,17,970.00 and three packets of heroin totalling 3.2 kgs were allegedly recovered.
- Two mobile phones were also allegedly recovered.
- The chargesheet alleged links with Pakistan-based LeT/HM operatives.
- It was alleged that the appellant visited Pakistan in 2016 and 2017.
- The appellant was alleged to have worked as an overground worker for LeT and HM.
Thus, appellant-accused No. 2 has been accused of committing offences under Sections 8, 21, 25 and 29 of the NDPS Act read with Sections 17, 38 and 48 of the Unlawful Activities (Prevention) Act, 1967 (briefly ‘the UAP Act’ hereinafter) read with Section 120B IPC.
Supplementary Chargesheets Filed By NIA
5.7. Thereafter NIA filed supplementary chargesheets.
Interim Bail On Medical Grounds
5.8. In the meanwhile, appellant sought for bail on medical grounds. Special NIA Court vide the order dated 04.01.2022 granted interim bail to the appellant on medical grounds initially till 23.01.2022 and, thereafter, extended upto 10.03.2022. On expiry of the bail period, appellant surrendered before the Special NIA Court on 10.03.2022.
Framing Of Charges By Special NIA Court
5.9. Charge in this case was framed by the Special NIA Court on 15.11.2023.
| Statutes Invoked | Sections |
|---|---|
| NDPS Act | Sections 8, 21, 25 and 29 |
| UAPA | Sections 17, 38 and 40 |
| Indian Penal Code | Section 120B IPC |
Do note, the Bench notes in para 6 that, “Appellant sought for regular bail before the Special NIA Court. However, the learned Special Judge vide the order dated 10.08.2024 rejected the bail application of the appellant.”
High Court Dismisses Appeal
Do also note, the Bench then notes in para 7 that, “Assailing the aforesaid order dated 10.08.2024, appellant preferred an appeal under Section 21 of the National Investigation Agency Act, 2008 (‘NIA Act’ hereinafter) before the High Court which was registered as Criminal Appeal (D) No.20 of 2024. By the impugned judgment and order dated 19.08.2025, the High Court dismissed the said appeal of the appellant.”
Supreme Court On Bail Under UAP Act
As it turned out, the Bench enunciates in para 8 that, “Aggrieved by the impugned judgment and order dated 19.08.2025, appellant has preferred the instant special leave petition before this Court. By order dated 07.01.2026, this Court had issued notice whereafter parties have exchanged affidavits. The matter was heard on 11.03.2026 and thereafter on 13.04.2026. Both the sides have also filed written submissions following closure of the hearing.”
Court Relies On Important Bail Precedent
While citing relevant case law, the Bench observes in para 34 that, “Therefore, Jalaluddin Khan Vs. Union of India (2024) 10 SCC 574 is a timely warning to the courts. It says that when a case is made out for grant of bail, the courts should not have any hesitation in granting bail. The allegation of the prosecution may be very serious; but the duty of the courts is to consider a case for grant of bail in accordance with law. ‘Bail is the rule and jail is the exception’ is a settled law. The Bench cautioned that if the courts start denying bail in deserving cases, it will be a violation of the rights guaranteed under Article 21 of our Constitution.”
Key Principles From Jalaluddin Khan Case
- Bail should be granted when a legal case for bail is made out.
- Serious allegations alone cannot justify denial of bail.
- Courts must decide bail strictly in accordance with law.
- “Bail is the rule and jail is the exception” remains settled law.
- Denial of bail in deserving cases may violate Article 21 of the Constitution.
Constitutional Principle Of Bail
Most remarkably, the Bench propounds in para 35 holding that, “The often invoked phrase ‘bail is the rule and jail is the exception’ is not merely an empty statutory slogan flowing from the CrPC as Gurwinder has stated. It is a constitutional principle flowing from Articles 21 and 22 of the Constitution and the presumption of innocence which is the cornerstone of any civilised society governed by the rule of law. Statutes may undoubtedly calibrate the manner in which that principle is applied, particularly in cases involving national security or terrorist offences for which the UAP Act is meant, but those cannot altogether invert the constitutional relationship between liberty and detention.
The statutory embargo of Section 43-D(5) must remain a circumscribed restriction that operates subject to the guarantee of Articles 21 and 22 of the Constitution. Therefore, we have no manner of doubt in stating that even under the UAP Act, ‘bail is the rule and jail is the exception’; of course, in an appropriate case, bail can be denied having regard to the facts of that particular case.”
Constitutional Foundation Of Bail
| Principle | Observation By The Bench |
|---|---|
| Bail Principle | “Bail is the rule and jail is the exception.” |
| Constitutional Basis | Articles 21 and 22 of the Constitution of India. |
| Presumption Of Innocence | Recognised as a cornerstone of a civilised society governed by rule of law. |
| UAP Act Restrictions | Restrictions under Section 43-D(5) cannot override constitutional guarantees. |
| Judicial Discretion | Bail may still be denied depending on facts of a particular case. |
Importance Of Judicial Discipline
Most commendably, the Bench mandates in para 41 holding that, “However, we need to keep in mind one important over-riding consideration and we reiterate this. While Gurwinder Singh and Gulfisha Fatima are by Benches of two Hon’ble Judges, K.A. Najeeb is a judgment by three Hon’ble Judges. It is evident from a reading of the two judgments in Gurwinder Singh and Gulfisha Fatima that the two-Judge Bench has made a clear departure from the ratio laid down in K.A. Najeeb. Judicial discipline and certainty demands that Benches of smaller strength are mindful of the decisions rendered by larger Benches and are bound to follow the same.
If the smaller Benches are unable to agree with the ratio laid down by the larger Bench then the proper and the only course of action open is to make a reference to the Hon’ble Chief Justice of India for placing the matter for consideration by a still larger Bench. Being in a combination of two Judges, we are bound by the ratio laid down by the three-Judge Bench in K.A. Najeeb. We say this and no more.”
Bench Strength And Binding Precedent
| Case | Bench Strength | Observation |
|---|---|---|
| Gurwinder Singh | Two-Judge Bench | Departure noted from K.A. Najeeb ratio. |
| Gulfisha Fatima | Two-Judge Bench | Departure noted from K.A. Najeeb ratio. |
| K.A. Najeeb | Three-Judge Bench | Binding precedent on smaller Benches. |
Court On Binding Nature Of Larger Benches
- Smaller Benches must follow decisions of larger Benches.
- Judicial discipline ensures certainty in law.
- If disagreement exists, the matter must be referred to the Chief Justice of India.
- Two-Judge Benches cannot override a Three-Judge Bench ruling.
Supreme Court Grants Bail in UAPA Case
Most rationally, the Bench mandates in para 53 holding that, “On due consideration, we are of the view that appellant has made out a case for grant of bail during pendency of the trial. We say so for the following reasons.
Grounds for Grant of Bail
| Para | Observation of the Bench |
|---|---|
| 53.1 | There is no recovery of cash and contraband from the person of the appellant or from the premises used by the appellant either as his residence or place of work. |
| 53.2 | All statements implicating the appellant have been made before the police including the confessions allegedly made by the appellant himself which prime facie are self-incriminating and hit by Section 25 of the Evidence Act, 1872. |
| 53.3 | Appellant has no prior antecedents of being connected with narcotic trade or in terrorist activities. At least, no such material has been placed on record. |
| 53.4 | On the contrary, it is stated that the appellant is an ardent advocate of the constitutional, federal and democratic set-up of India. He is a supporter of Jammu and Kashmir People’s Conference, a registered mainstream political party. Following the abrogation of Article 370 from the Indian Constitution, appellant was taken into preventive detention on 07.08.2019 under the Jammu and Kashmir Public Safety Act, 1978. In the dossier prepared in connection with his preventive detention, it was mentioned that appellant is a political activist associated with the People’s Conference and has a close connection with the people. |
| 53.5 | It is also a fact that appellant was a government employee serving as Village Level Worker at Kupwara under the Rural Development Department, Government of Jammu and Kashmir. |
| 53.6 | Earlier, appellant had sought for interim bail on medical grounds. The Special NIA Court vide the order dated 04.01.2022 had granted interim bail to the appellant till 10.03.2022, on which date appellant surrendered before the said court. Thus, he had not misused the interim bail granted to him. |
| 53.7 | We have already noted that appellant was arrested in connection with the present case on 11.06.2020 and he has been in custody since then for more than 5 years 11 months. As per the prosecution, there are more than 350 witnesses still to be examined. It is thus clear that conclusion of the trial in the near future is well-nigh impossible. In such a case, K.A. Najeeb will apply with full force. |
| 53.8 | The above view is further fortified by the poor conviction rate in cases involving the UAP Act, with chances of acquittal more than 90 to 95% whether it is on the basis of all India figures or Jammu and Kashmir. |
Special NIA Court Directed to Release Appellant
It is worth noting that the Bench notes in para 54 that, “That being the position, we direct that appellant shall be released on bail on such terms and conditions as the Special NIA Court may deem fit and proper. For this purpose, the appellant shall be produced before the Special NIA Court as early as possible but at any rate not later than 7 days from today.”
Conditions Imposed by the Court
Adding more to it, the Bench stipulates in para 55 directing and holding that, “In addition to such terms and conditions that the Special NIA Court may deem fit and proper to impose, we also direct that the appellant shall deposit his passport before the Special NIA Court and shall appear before Handwara Police Station once every fortnight (15 days) on the date and time that may be fixed by the police authorities of Handwara Police Station. He shall continue to cooperate with the ongoing trial and shall not threaten or try to influence any of the witnesses.”
Key Bail Conditions
- Deposit passport before the Special NIA Court.
- Appear before Handwara Police Station once every fortnight.
- Continue to cooperate with the ongoing trial.
- Not threaten or influence witnesses.
Appeal Allowed by the Supreme Court
Finally, the Bench then concludes by directing and holding in para 58 that, “Appeal is accordingly allowed. However, there shall be no order as to cost.”
Importance of Liberty and Bail Jurisprudence
All told, our nation definitely needs many more such Judges who can deliver judgments so rationally and accord liberty the paramount priority and stick to “Bail is the rule and jail is the exception” principle. It is good to see that Apex Court has most strongly disapproved of judgment denying bail to Umar Khalid for ignoring binding precedent in ‘KA Najeeb’ case as stated hereinabove. There can be just no denying it!
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A - 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.
