Supreme Court of India
SHEIKH JAVED IQBAL @ ASHFAQ ANSARI @ JAVED ANSARIversusSTATE OF UTTAR PRADESH
- Citation
- 2024 INSC 534
- Decided
- 18 July 2024
- Disposal
- Disposed off
- Bench
- B PARDIWALA
Holding
Prolonged pre‑trial detention that infringes the accused's Article 21 right to a speedy trial justifies granting bail despite statutory restrictions under the UAPA.
Summary
The appellant, a Nepalese national, was arrested in 2015 for allegedly supplying high‑quality counterfeit Indian currency and was charged under Sections 489B and 489C of the IPC and Section 16 of the Unlawful Activities (Prevention) Act, 1967. After more than nine years of incarceration, only two prosecution witnesses had been examined and the trial showed no sign of speedy completion. The High Court denied bail on the grounds of the seriousness of the offences and the appellant's foreign nationality, fearing flight risk. The Supreme Court examined whether the statutory restrictions on bail under the UAPA could override the constitutional right to a speedy trial under Article 21. It held that prolonged detention without a reasonable prospect of trial violates Article 21, and that statutory bail restrictions do not bar the court from granting bail when the right to speedy trial is infringed. Consequently, the Court set aside the High Court’s order, granted bail with conditions, and disposed of the appeal.
Issues considered
- The propriety of denying bail to an under‑trial accused under the UAPA and IPC on the basis of seriousness of the offence and foreign nationality.
- Whether Section 43D(5) of the UAPA ousts the constitutional court's power to grant bail when Article 21 rights are violated.
- Whether prolonged pre‑trial detention without a reasonable prospect of trial infringes the right to speedy trial under Article 21.
Legislation cited
- Code of Criminal Procedure, 1973s. 173, s. 437(3), s. 439, s. 482
- Constitution of Indias. Article 21
- Indian Penal Code, 1860s. 489B, s. 489C
- Unlawful Activities (Prevention) Act, 1967s. 16, s. 43D
Subjects
BailBail deniedFake counterfeit currency notes seizedUnder‑trial prisonerLong incarcerationProlonged trialArticle 21 of the Constitution of IndiaSpeedy trialFundamental right of accused to speedy trialSerious offenceSerious chargesRight to life and personal libertyRestrictive statutory provisionsPenal statuteConstitutional courtConstitutionalismRule of law
Judgment
[2024] 7 S.C.R. 1054 : 2024 INSC 534
Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari
v.
State of Uttar Pradesh
(Criminal Appeal No. 2790 of 2024)
18 July 2024
[J.B. Pardiwala and Ujjal Bhuyan,* JJ.]
Issue for Consideration
High Court whether justified in denying bail to the appellant,
an under-trial prisoner prosecuted under Unlawful Activities
(Prevention) Act 1967 and Penal Code, 1860 who had been in
custody for more than nine years.
Headnotes†
Bail – Denial – When not justified – Constitution of India –
Article 21 – Right to speedy trial – Serious charges no ground
to deny bail – Unlawful Activities (Prevention) Act, 1967 –
SS.16, 43D – Penal Code, 1860 – SS. 489B, 489C – Fake
counterfeit Indian currency notes seized from the appellant-
accused, a foreign national – In custody as an under-trial
prisoner for nine years – Bail denied:
Held: An accused or an undertrial has a fundamental right to speedy
trial traceable to Article 21 – If the alleged offence is a serious
one, it is all the more necessary for the prosecution to ensure that
the trial is concluded expeditiously – When a trial gets prolonged,
it is not open to the prosecution to oppose bail of the accused-
undertrial on the ground that the charges are very serious – Bail
cannot be denied only on the ground that the charges are very
serious though there is no end in sight for the trial to conclude –
In the present case, the appellant has been in custody for more
than nine years – Trial likely to take considerable time as only
two witnesses have been examined – Impugned order of the High
Court set aside and quashed – Appellant granted bail subject to
the conditions stipulated. [Paras 22, 34]
Penal Statutes – Statutory restrictions – Constitution of India –
Article 21 – Infringement – Duty of constitutional court:
* Author
[2024] 7 S.C.R. 1055
Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari v.
State of Uttar Pradesh
Held: Right to life and personal liberty enshrined under Article
21 is overarching and sacrosanct – A constitutional court cannot
be restrained from granting bail to an accused on account of
restrictive statutory provisions in a penal statute if it finds that
the right of the accused-undertrial under Article 21 has been
infringed – In that event, such statutory restrictions would not
come in the way – Even in the case of interpretation of a penal
statute, howsoever stringent it may be, a constitutional court has
to lean in favour of constitutionalism and the rule of law of which
liberty is an intrinsic part – In the given facts of a particular case,
a constitutional court may decline to grant bail – But it would be
very wrong to say that under a particular statute, bail cannot be
granted. [Para 32]
Bail – Denial of bail to an undertrial – Judgment in NIA v.
Zahoor Ahmad Shah Watali reported as [2019] 5 SCR 1060
not a precedent to deny bail to an undertrial:
Held: Decision in Zahoor Ahmad Shah Watali has to be read and
understood in the context in which it was rendered and not as
a precedent to deny bail to an accused-undertrial suffering long
incarceration with no end in sight of the criminal trial. [Para 28]
Case Law Cited
Gurwinder Singh v. State of Punjab [2024] 2 SCR 134 : (2024)
SCC Online SC 109 – distinguished.
NIA v. Zahoor Ahmad Shah Watali [2019] 5 SCR 1060 : (2019)
5 SCC 1 – explained.
Union of India v. K.A. Najeeb (2021) SCC Online SC 50; Javed
Gulam Nabi Shaikh v. State of Maharashtra [Criminal Appeal
No. 2787 of 2024] – relied on.
Supreme Court Legal Aid Committee (Representing Undertrial
Prisoners) v. Union of India [1994] Supp. 4 SCR 386 : (1994) 6
SCC 731; Shaheen Welfare Association v. Union of India [1996] 2
SCR 1123 : (1996) 2 SCC 616; Angela Harish Sontakke v. State of
Maharashtra (2021) 3 SCC 723; Frank Vitus v. Narcotics Control
Bureau, Criminal Appeal No. 2814-15 of 2024 – referred to.
List of Acts
Constitution of India; Unlawful Activities (Prevention) Act, 1967;
Penal Code, 1860; Code of Criminal Procedure, 1973.
1056 [2024] 7 S.C.R.
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List of Keywords
Bail; Bail denied; Fake counterfeit currency notes seized;
Under- trial prisoner; Long incarceration; Prolonged trial; Article 21
of the Constitution of India; Speedy trial; Fundamental right
of accused to speedy trial; Serious offence; Serious charges;
Right to life and personal liberty; Restrictive statutory provisions;
Penal statute; Constitutional court; Constitutionalism; Rule of law.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 2790
of 2024
From the Judgment and Order dated 03.04.2023 of the High Court of
Judicature at Allahabad, Lucknow Bench in CRMBA No. 2282 of 2021
Appearances for Parties
M.S. Khan, Tripurari Ray, Balwant Singh Billowria, Anirudh Ray,
Ms. Qusar Khan, Akshay Singh, Vivekanand Singh, Manu Shanker
Mishra, Advs. for the Appellant.
Ms. Garima Prasad, Sr. A.A.G./Sr. Adv., Shaurya Sahay, Shobhit
Dwivedi, Advs. for the Respondent.
Judgment / Order of the Supreme Court
Judgment
Ujjal Bhuyan, J.
Leave granted.
2. Heard learned counsel for the parties.
3. This appeal is directed against the order dated 03.04.2023 passed
by the High Court of Judicature at Allahabad, Lucknow Bench in
Criminal Miscellaneous Bail Application No. 2282 of 2021 (Sheikh
Javed Iqbal @ Ashfaq Ansari @ Javed Ansari Vs. State of U.P.).
3.1. By the aforesaid order, the High Court of Judicature at Allahabad,
Lucknow Bench (‘High Court’ hereinafter) has rejected the
bail application of the petitioner filed under Section 439 of the
Code of Criminal Procedure, 1973 (Cr.P.C.) in Crime No. 01 of
2015 registered under Sections 489B and 489C of the Indian
Penal Code, 1860 (‘IPC’ for short) and under Section 16 of the
[2024] 7 S.C.R. 1057
Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari v.
State of Uttar Pradesh
Unlawful Activities (Prevention) Act, 1967 (‘UAP Act’ for short)
before Police Station ATS, Uttar Pradesh, District Lucknow.
4. This Court by order dated 10.04.2024 condoned the delay in filing
the related Special Leave Petition (Criminal) Diary No. 11387 of
2024 and issued notice. On delay being condoned, the case came
to be registered as Special Leave Petition (Criminal) No. 5260 of
2024. The matter was heard by the Vacation Bench on 03.07.2024.
5. First Information Report (FIR) was lodged against the appellant by
the informant Inspector Tej Bahadur Singh under Sections 121A,
489B and 489C of IPC. It came to be registered as Crime No. 01
of 2015. Informant stated that fake Indian currency notes of the
denomination of Rs. 1,000 and Rs. 500, totalling a sum of Rs.
26,03,500.00, were recovered from the possession of the appellant
on 22.02.2015 at about 09:10 PM from the Indo-Nepal border. He
was apprehended by a constable of the ATS team and brought to
the ATS Headquarter. In the course of investigation, the appellant
disclosed his name as Sheikh Javed Iqbal @ Ashfaq Ansari @
Javed Ansari, resident of Narayani Parsa, Belwa, Nepal. In addition
to the fake Indian currency notes, one Nepalese driving licence of
the appellant and one Nepalese citizenship certificate also of the
appellant were recovered besides two mobile phones. According
to the police, appellant had confessed that he was engaged in the
illegal trade of supplying counterfeit Indian currency notes in Nepal.
The appellant was arrested on 23.02.2015.
6. Appellant had moved a bail application before the Additional Sessions
Judge, Special Judge, Lucknow (‘trial court’ hereinafter) but the same
was rejected on 24.08.2016. It was thereafter that the related bail
application was filed by the appellant before the High Court which
came to be dismissed by the impugned order.
7. At this stage, it may be stated that chargesheet against the appellant
under Section 489B and 489C IPC was filed by the prosecution on
19.08.2015. Supplementary chargesheet under Section 16 of the
UAP Act was filed on 26.08.2015. It was mentioned therein that the
Hon’ble Governor had granted sanction on 25.08.2015 to prosecute
the appellant under Sections 489B and 489C IPC read with Section
16 of the UAP Act, as amended. Before the trial court, the case came
to be registered as Case No. 940 of 2015.
1058 [2024] 7 S.C.R.
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8. The trial court considered the chargesheet as well as the discharge
application filed by the appellant and by the common order dated
27.05.2016, the discharge application was dismissed, while directing
that charges be framed against the appellant under aforesaid
provisions of law.
9. By order dated 16.07.2016, the trial court framed the charge against
the appellant under the aforesaid provisions who pleaded not
guilty. Thereafter, the trial court issued summons to the prosecution
witnesses.
10. It may also be mentioned that the Home Department, Government
of U.P. passed an order on 13.01.2017, stating that the earlier
sanction granted by the Hon’ble Governor on 25.08.2015 was
modified whereafter the Hon’ble Governor granted full sanction for
prosecution of the appellant in the aforesaid case for commission
of the offence under Section 16 of the UAP Act which is punishable
under Section 45(2) of the aforesaid Act.
11. Appellant filed an application before the High Court under Section
482 of Cr.P.C. for quashing of the order dated 27.05.2016 passed
by the trial court whereby the application for discharge moved by
the appellant was rejected. He also sought for quashing of the order
dated 16.07.2016 passed by the trial court framing charge against
the appellant.
11.1. The High Court by the order dated 08.10.2021 took the view
that no cognizance could have been taken by the trial court
against the appellant in the absence of any valid sanction of
prosecution for the offence under Section 16 of the UAP Act. The
High Court held that although sanction for prosecution had been
obtained, yet the same was not based upon recommendation
after an independent review of the evidence collected during the
course of investigation by the appropriate authority as required
under Section 45(2) of the UAP Act. According to the High
Court, it was a clear case of non-application of mind as the
State failed to comply with the mandatory statutory provision
under Section 45 of the UAP Act. Thus, the sanction orders
dated 25.08.2015 and 13.01.2017 were held to be invalid.
Therefore, the trial court was barred from taking cognizance
under Section 16 of the UAP Act. Consequently, the order
of cognizance dated 27.05.2016 passed by the trial court in
[2024] 7 S.C.R. 1059
Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari v.
State of Uttar Pradesh
Case No. 940 of 2015 in so far the offence under Section 16
of the UAP Act was concerned as well as the charge to the
extent of Section 16 of the UAP Act were quashed. The trial
court was directed to proceed with the trial only with respect
to the rest of the offences under Sections 489B and 489C IPC
against the appellant.
12. State of U.P. assailed the order of the High Court dated 08.10.2021
before this Court by filing Special Leave to Appeal (Criminal) No.
861 of 2022. This Court by order dated 11.02.2022 issued notice
and in the meanwhile directed stay of the order of the High Court
dated 08.10.2021.
13. On 20.02.2024, this Court on perusal of the materials placed before
the Court, noted that subsequent development had taken place
whereby sanction was granted vide order dated 15.12.2021 after
the order of the High Court. In view of the subsequent development,
this Court declined to examine the issue on merit leaving it open
to the State Government to apply before the High Court seeking
permission to proceed in the matter for the offence under the UAP
Act on the basis of the subsequent development. It was clarified that
on filing of such proceedings, the High Court would be at liberty to
consider the issue and decide the same affording due opportunity
to all concerned without being influenced by the observations made
in the order of the High Court dated 08.10.2021. Consequently, the
Special Leave to Appeal (Criminal) No. 861 of 2022 was disposed of.
14. In the meanwhile, appellant moved the High Court for regular bail
under Section 439 Cr.P.C. which came to be registered as Criminal
Miscellaneous Bail Application No. 2282 of 2021. By the impugned
order dated 03.04.2023, the High Court observed that the charges
levelled against the appellant are grave. Though the appellant is in
jail since the last eight years and evidence of only two witnesses
had been recorded, appellant could not be released on bail since
he belongs to Nepal and that there is a strong probability of the
appellant evading trial by absconding. Accordingly, the bail application
has been rejected.
15. Mr. M.S. Khan, learned counsel for the appellant submits that appellant
is in custody for more than nine years now. There is no possibility
of the criminal trial being concluded in the near future. Therefore,
the appellant should be enlarged on bail.
1060 [2024] 7 S.C.R.
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16. On the other hand, Ms. Garima Prasad, learned Additional Advocate
General for the State of U.P. submits that the charges against the
appellant are very serious in nature. Besides, he being a foreign
national, there is an attendant flight risk. Therefore, appellant may
not be released on bail; instead the trial court may be directed to
expedite the trial. Referring to the counter affidavit filed on behalf of
the State of U.P., she submits that appellant is an accused under the
UAP Act and is, therefore, not entitled to bail. In this connection, she
has referred to a recent decision of this Court in Gurwinder Singh
Vs. State of Punjab.1
17. Submissions made by learned counsel for the parties have been
duly considered.
18. We have already noticed that the appellant is in jail since 23.02.2015.
Now we are in July 2024. Nine years have gone by in the meanwhile.
As per the impugned order, evidence of only two witnesses have
been recorded. In the course of hearing, the Bench had queried
learned counsel for the parties as to the stage of the trial; how
many witnesses the prosecution seeks to examine and evidence of
the number of witnesses recorded so far. Unfortunately, counsel for
either side could not apprise the Court about the aforesaid. On the
contrary, learned state counsel sought for time to obtain instructions.
Having regard to the fact that appellant is in custody for more than
nine years now, we declined the prayer of the learned state counsel
seeking further time. Learned counsel for the parties were also unable
to tell us as to whether the State has moved the High Court after
the order of this Court dated 20.02.2024 and whether any order has
been passed by the High Court on the same.
19. As already noted above, appellant is in custody for more than nine
years now. The impugned order says that evidence of only two
witnesses have been recorded. In such circumstances, a reasonable
view can be taken that the trial is likely to take considerable time.
20. Before proceeding further, let us briefly look at the sections invoked
against the appellant. Section 489B IPC deals with the offence of
using forged or counterfeit currency notes or bank notes as genuine
despite knowing the same to be forged or counterfeit. Conviction
1 [2024] 2 SCR 134 : (2024) SCC Online SC 109
[2024] 7 S.C.R. 1061
Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari v.
State of Uttar Pradesh
for such an offence would result in punishment of imprisonment for
life or with punishment of either description for a term which may
extend to ten years and shall also be liable to fine. Offence under
Section 489C IPC is committed when one is found in possession
of any forged or counterfeit currency notes or bank notes despite
knowing the same to be forged or counterfeit and intending to use the
same as genuine. Punishment for such an offence is imprisonment
of either description for a term which may extend to seven years or
with fine or with both.
20.1. Section 16 of the UAP Act provides for punishment for
committing a ‘terrorist act’. ‘Terrorist act’ is defined in Section
15. For the present case, the definition which would be
relevant is that a person commits a ‘terrorist act’ if he does
any act with the intention to threaten or likely to threaten the
economic security of India i.e. damage to the monetary stability
of India by way of production or smuggling or circulation of
‘high quality counterfeit Indian paper currency’, coin or of any
other material. Explanation (b) explains ‘high quality counterfeit
Indian currency’. In such a case, the punishment under Section
16 would be imprisonment for a term which shall not be less
than five years but which may extend to imprisonment for life
and shall also be liable to fine.
20.2. Section 43D of the UAP Act says that there shall be modified
application of certain provisions of the Cr.P.C. As per sub-
Section (5) of Section 43D, which starts with a non-obstante
clause, notwithstanding anything contained in the Cr.P.C, no
person accused of an offence punishable under Chapters IV
(which includes Section 16) and VI of the UAP Act shall, if in
custody, be released on bail or on his own bond unless the
public prosecutor has been given an opportunity of being heard
on the bail application. The proviso says that such accused
person shall not be released on bail or on his own bond if the
court on a perusal of the case diary or the report made under
Section 173 Cr.P.C. is of the opinion that there are reasonable
grounds for believing that the accusation against such person
is prima-facie true. Sub-Section (6) clarifies that the restrictions
on granting of bail specified in sub-Section (5) would be in
addition to the restrictions under the Cr.P.C. or any other law
for the time being in force on granting of bail.
1062 [2024] 7 S.C.R.
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21. It is true that the appellant is facing charges under Section 489B
IPC and under Section 16 of the UAP Act which carries a maximum
sentence of life imprisonment, if convicted. On the other hand, the
maximum sentence under Section 489C IPC is 7 years. But as
noticed above, the trial is proceeding at a snail’s pace. As per the
impugned order, only two witnesses have been examined. Thus, it
is evident that the trial would not be concluded in the near future.
22. It is trite law that an accused is entitled to a speedy trial. This Court
in a catena of judgments has held that an accused or an undertrial
has a fundamental right to speedy trial which is traceable to Article
21 of the Constitution of India. If the alleged offence is a serious one,
it is all the more necessary for the prosecution to ensure that the
trial is concluded expeditiously. When a trial gets prolonged, it is not
open to the prosecution to oppose bail of the accused-undertrial on
the ground that the charges are very serious. Bail cannot be denied
only on the ground that the charges are very serious though there
is no end in sight for the trial to conclude.
23. This Bench in a recent decision dated 03.07.2024 in Javed Gulam
Nabi Shaikh Vs. State of Maharashtra, Criminal Appeal No. 2787 of
2024, has held that howsoever serious a crime may be, an accused
has the right to speedy trial under the Constitution of India. That was
also a case where fake counterfeit Indian currency notes were seized
from the accused-appellant. He was investigated by the National
Investigating Agency (NIA) under the National Investigating Agency
Act, 2008 and was charged under the UAP Act alongwith Sections
489B and 489C IPC. He was in custody as an undertrial prisoner
for more than four years. The trial court had not even framed the
charges. It was in that context, this Court observed as under:
9. Over a period of time, the trial courts and the High
Courts have forgotten a very well settled principle of law
that bail is not to be withheld as a punishment.
23.1. After referring to various other decisions, this Court further
observed as follows:
19. If the State or any prosecuting agency including
the court concerned has no wherewithal to provide or
protect the fundamental right of an accused to have
a speedy trial as enshrined under Article 21 of the
[2024] 7 S.C.R. 1063
Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari v.
State of Uttar Pradesh
Constitution then the State or any other prosecuting
agency should not oppose the plea for bail on the
ground that the crime committed is serious. Article 21
of the Constitution applies irrespective of the nature
of the crime.
20. We may hasten to add that the petitioner is
still an accused; not a convict. The over-arching
postulate of criminal jurisprudence that an accused
is presumed to be innocent until proven guilty cannot
be brushed aside lightly, howsoever stringent the
penal law may be.
21. We are convinced that the manner in which
the prosecuting agency as well as the Court have
proceeded, the right of the accused to have a speedy
trial could be said to have been infringed thereby
violating Article 21 of the Constitution.
24. Earlier, in Supreme Court Legal Aid Committee (Representing
Undertrial Prisoners) Vs. Union of India,2 this Court had issued a
slue of directions relating to undertrials in jail facing charges under
the Narcotic Drugs and Psychotropic Substances Act, 1985 (briefly,
the ‘NDPS Act’ hereinafter) for a period exceeding two years on
account of the delay in disposal of the cases lodged against them.
In respect of undertrials who were foreigners, this Court directed that
the Special Judge should impound their passports besides insisting
on a certificate of assurance from the concerned Embassy/High
Commission of the country to which the foreigner accused belonged
and that such accused should not leave the country and should
appear before the Special Court as required.
25. Similarly, in Shaheen Welfare Association Vs. Union of India,3 this
Court was considering a public interest litigation wherein certain
reliefs were sought for undertrial prisoners charged with offences
under the Terrorist and Disruptive Activities (Prevention) Act, 1987
(TADA Act) languishing in jail for considerable periods of time. This
Court observed that while liberty of a citizen must be zealously
2 [1994] Supp. 4 SCR 386 : (1994) 6 SCC 731
3 [1996] 2 SCR 1123 : (1996) 2 SCC 616
1064 [2024] 7 S.C.R.
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safeguarded by the courts but, at the same time, in the context of
stringent laws like the TADA Act, the interest of the victims and the
collective interest of the community should also not be lost sight of.
While balancing the competing interest, this Court observed that the
ultimate justification for deprivation of liberty of an undertrial can only
be on account of the accused-undertrial being found guilty of the
offences for which he is charged and is being tried. If such a finding
is not likely to be arrived at within a reasonable time, some relief(s)
becomes necessary. Therefore, a pragmatic approach is required.
26. Angela Harish Sontakke Vs. State of Maharashtra4 is a case where the
accused-appellant was charged under various provisions of the UAP
Act as well as under the IPC. He sought for bail. This Court observed
that, undoubtedly, the charges are serious but the seriousness of
the charges will have to be balanced with certain other facts like
the period of custody suffered and the likely period within which the
trial can be expected to be completed. In that case, it was found
that the appellant-accused was in custody since April, 2011 i.e. for
over five years. The trial was yet to commence. A large number of
witnesses were proposed to be examined. It was in that context that
the appellant-accused was directed to be released on bail.
27. More recently, a three Judge Bench of this Court in Union of India
Vs. K.A. Najeeb,5 considered an appeal filed by the Union of India
through the National Investigation Agency (NIA) against an order
passed by the High Court of Kerala granting bail to an accused-
undertrial facing trial for allegedly committing offences, amongst
others, under Sections 16, 18, 18B, 19 and 20 of the UAP Act.
27.1. This Court noted that the appellant in K.A. Najeeb (supra)
was in jail for more than five years. Charges were framed only
on 27.11.2020 and there were 276 witnesses still left to be
examined. This Court emphasized that liberty granted by Part
III of the Constitution would cover within its protective ambit
not only due procedure and fairness but also access to justice
and speedy trial. No undertrial can be detained indefinitely
pending trial. Once it is obvious that a timely trial would not
be possible and the accused has suffered incarceration for
4 (2021) 3 SCC 723
5 (2021) SCC Online SC 50
[2024] 7 S.C.R. 1065
Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari v.
State of Uttar Pradesh
a significant period of time, the courts would ordinarily be
obligated to enlarge them on bail.
27.2. Referring to the decision of this Court in NIA Vs. Zahoor
Ahmad Shah Watali,6 this Court opined that the High Court in
that case had virtually conducted a mini trial and determined
admissibility of certain evidence which clearly exceeded the
limited scope of a bail proceeding. Not only was it beyond the
statutory mandate of prima-facie assessment under Section
43D(5) of the UAP Act, it was premature and possibly would
have prejudiced the trial as well. It was in these circumstances
that this Court in Zahoor Ahmad Shah Watali (supra) had to
intervene leading to cancellation of the bail granted.
28. We are in respectful agreement with the reasoning given in K.A.
Najeeb (supra) regarding the decision in Zahoor Ahmad Shah Watali
(supra). This decision i.e. Zahoor Ahmad Shah Watali (supra) has to
be read and understood in the context in which it was rendered and
not as a precedent to deny bail to an accused-undertrial suffering
long incarceration with no end in sight of the criminal trial.
29. Going back to K.A. Najeeb (supra), this Court thereafter proceeded
to hold that Section 43D(5) of the UAP Act does not oust the ability
of the constitutional courts to grant bail on grounds of violation of
Part III of the Constitution. Long incarceration with the unlikelihood
of the trial being completed in the near future is a good ground to
grant bail. This Court also distinguished Section 43D(5) of the UAP
Act from Section 37 of the NDPS Act. It has been held as follows:
17. It is thus clear to us that the presence of statutory
restrictions like Section 43-D(5) of the UAPA per se does
not oust the ability of the constitutional courts to grant
bail on grounds of violation of Part III of the Constitution.
Indeed, both the restrictions under a statute as well as
the powers exercisable under constitutional jurisdiction
can be well harmonised. Whereas at commencement of
proceedings, the courts are expected to appreciate the
legislative policy against grant of bail but the rigours of
such provisions will melt down where there is no likelihood
6 (2019) 5 SCC 1
1066 [2024] 7 S.C.R.
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of trial being completed within a reasonable time and the
period of incarceration already undergone has exceeded
a substantial part of the prescribed sentence. Such an
approach would safeguard against the possibility of
provisions like Section 43-D(5) of the UAPA being used as
the sole metric for denial of bail or for wholesale breach
of constitutional right to speedy trial.
18. Adverting to the case at hand, we are conscious of the
fact that the charges levelled against the respondent are
grave and a serious threat to societal harmony. Had it been
a case at the threshold, we would have outrightly turned
down the respondent’s prayer. However, keeping in mind
the length of the period spent by him in custody and the
unlikelihood of the trial being completed anytime soon, the
High Court appears to have been left with no other option
except to grant bail. An attempt has been made to strike
a balance between the appellant’s right to lead evidence
of its choice and establish the charges beyond any doubt
and simultaneously the respondent’s rights guaranteed
under Part III of our Constitution have been well protected.
19. Yet another reason which persuades us to enlarge the
respondent on bail is that Section 43-D(5) of the UAPA is
comparatively less stringent than Section 37 of the NDPS
Act. Unlike the NDPS Act where the competent court needs
to be satisfied that prima-facie the accused is not guilty
and that he is unlikely to commit another offence while on
bail; there is no such precondition under UAPA. Instead,
Section 43-D(5) of the UAPA merely provides another
possible ground for the competent court to refuse bail, in
addition to the well-settled considerations like gravity of the
offence, possibility of tampering with evidence, influencing
the witnesses or chance of the accused evading the trial
by absconsion, etc.
29.1. Declining to interfering with the order of the High Court, this
Court in K.A. Najeeb (supra) dismissed the appeal of the Union
of India.
30. Recently, this Court dealt with a matter where the appellant, a foreign
national, is being prosecuted for offences punishable under Sections
[2024] 7 S.C.R. 1067
Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari v.
State of Uttar Pradesh
8, 22, 23 and 29 of the NDPS Act. The appellant was arrested on
21.05.2014. The High Court had granted bail to the appellant vide
the order dated 31.05.2022 but had incorporated certain conditions
in the bail order because of which the appellant remained in custody
despite having a bail order in his favour. One of the conditions was
that the appellant, a Nigerian national, should obtain a certificate of
assurance from the High Commission of Nigeria to the effect that
the appellant would not leave the country and would appear before
the trial court on the dates fixed. Another condition imposed was
that the accused should drop a pin on the google map to ensure
that his location is available to the investigation officer at all times.
This Court as an interim measure had granted bail to the accused-
appellant and thereafter passed a detailed judgment in Frank Vitus
Vs. Narcotics Control Bureau, Criminal Appeal No. 2814-15 of 2024,
decided on 08.07.2024. This Court after referring to earlier decisions
of this Court held that conditions of bail cannot be arbitrary and
fanciful. The expression ‘interest of justice’ finding place in Section
437(3) Cr.P.C. means only good administration of justice or advancing
the trial process. It cannot be given any further broader meaning
to curtail the liberty of an accused granted bail. Courts cannot
impose freakish conditions while granting bail. Bail conditions must
be consistent with the object of granting bail. While imposing bail
conditions, the constitutional rights of an accused who is ordered
to be released on bail can be curtailed only to the minimum extent
required. Even when an accused is in jail, he cannot be deprived
of his right to life which is a basic human right of every individual.
This Court held that bail conditions cannot be so onerous so as to
frustrate the order of bail itself.
30.1. Thereafter, this Court held as follows:
7.1. We are dealing with a case of the accused whose
guilt is yet to be established. So long as he is not held
guilty, the presumption of innocence is applicable. He
cannot be deprived of all his rights guaranteed under
Article 21. The Courts must show restraint while imposing
bail conditions. Therefore, while granting bail, the Courts
can curtail the freedom of the accused only to the extent
required for imposing the bail conditions warranted by law.
Bail conditions cannot be so onerous as to frustrate the
order of bail itself. For example, the Court may impose a
1068 [2024] 7 S.C.R.
Digital Supreme Court Reports
condition of periodically reporting to the police station/Court
or not travelling abroad without prior permission. Where
circumstances require, the Court may impose a condition
restraining an accused from entering a particular area to
protect the prosecution witnesses or the victims. But the
Court cannot impose a condition on the accused to keep
the Police constantly informed about his movement from
one place to another. The object of the bail condition
cannot be to keep a constant vigil on the movements of
the accused enlarged on bail. The investigating agency
cannot be permitted to continuously peep into the private
life of the accused enlarged on bail, by imposing arbitrary
conditions since that will violate the right of privacy of the
accused, as guaranteed by Article 21. If a constant vigil
is kept on every movement of the accused released on
bail by the use of technology or otherwise, it will infringe
the rights of the accused guaranteed under Article 21,
including the right to privacy. The reason is that the effect
of keeping such constant vigil on the accused by imposing
drastic bail conditions will amount to keeping the accused
in some kind of confinement even after he is released on
bail. Such a condition cannot be a condition of bail.
***********
9. A condition cannot be imposed while granting bail
which is impossible for the accused to comply with. If such
a condition is imposed, it will deprive an accused of bail,
though he is otherwise entitled to it.
30.2. In so far the condition that the accused should drop a pin on
the google map, this Court referred to the affidavit filed Google
LLC wherein it was stated that the user has full control over
sharing of pin with other users; pin location does not enable
real time tracking of the user or a user’s device. Therefore, this
Court found that such a condition was completely redundant.
Thereafter, this Court held that imposing any bail condition
which enables the police/investigating agency to track every
movement of the accused released on bail by use of technology
or otherwise would undoubtedly violate the right to privacy of
the accused guaranteed under Article 21.
[2024] 7 S.C.R. 1069
Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari v.
State of Uttar Pradesh
30.3. Distinguishing the decision of this Court in Supreme Court Legal
Aid Committee (Representing Undertrial Prisoners) (supra), this
Court observed that an accused-undertrial has no control over
the Embassy or High Commission of his country. On failure of
the Embassy or High Commission to issue a certificate that the
accused-undertrial would not flee from the country and would
attend the trial proceedings regularly, he cannot be continued to
be kept in detention despite a bail order. Instead of the same,
other practical and pragmatic conditions may be imposed.
This Court clarified that it is not necessary that in every case
where bail is granted to the accused in an NDPS case who
is a foreign national, the condition of obtaining a certificate of
assurance from the Embassy or the High Commission should
be incorporated. Consequently, in Frank Vitus (supra), this
Court while confirming the bail granted to the appellant, set
aside the two impugned conditions.
31. In Gurwinder Singh (supra) on which reliance has been placed by
the respondent, a two Judge Bench of this Court distinguished K.A.
Najeeb (supra) holding that the appellant in K.A. Najeeb (supra)
was in custody for five years and that the trial of the appellant in
that case was severed from the other co-accused whose trial had
concluded whereupon they were sentenced to imprisonment of
eight years; but in Gurwinder Singh, the trial was already underway
and that twenty two witnesses including the protected witnesses
have been examined. It was in that context, the two Judge Bench
of this Court in Gurwinder Singh observed that mere delay in trial
pertaining to grave offences cannot be used as a ground to grant
bail.
32. This Court has, time and again, emphasized that right to life and
personal liberty enshrined under Article 21 of the Constitution of
India is overarching and sacrosanct. A constitutional court cannot be
restrained from granting bail to an accused on account of restrictive
statutory provisions in a penal statute if it finds that the right of the
accused-undertrial under Article 21 of the Constitution of India has
been infringed. In that event, such statutory restrictions would not
come in the way. Even in the case of interpretation of a penal statute,
howsoever stringent it may be, a constitutional court has to lean in
favour of constitutionalism and the rule of law of which liberty is an
intrinsic part. In the given facts of a particular case, a constitutional
court may decline to grant bail. But it would be very wrong to say
1070 [2024] 7 S.C.R.
Digital Supreme Court Reports
that under a particular statute, bail cannot be granted. It would run
counter to the very grain of our constitutional jurisprudence. In any
view of the matter, K.A. Najeeb (supra) being rendered by a three
Judge Bench is binding on a Bench of two Judges like us.
33. Thus, having regard to the discussions made above, we are of the
considered view that continued incarceration of the appellant cannot
be justified. We are, therefore, inclined to grant bail to the appellant.
34. Consequently, we pass the following order: -
(i) The impugned order dated 03.04.2023 of the High Court is set
aside and quashed;
(ii) Appellant is directed to be released on bail subject to fulfilment
of the following conditions: -
(a) Trial court shall impound the passport and/or citizenship
document(s) of the appellant. If those are in the custody of
the prosecution, those shall be handed over to the trial court.
(b) Appellant shall not leave the territorial jurisdiction of the
trial court; he shall furnish his address to the trial court.
(c) He shall appear before the trial court on each and every
date of the trial.
(d) In addition to the above, the appellant shall mark his
attendance before the police station which the trial court
may indicate once in every fortnight till conclusion of the trial.
(e) He shall not tamper with the evidence and shall not threaten
the witnesses.
(iii) If there is any violation of the bail conditions as above, it would
be open to the prosecution to move the trial court for cancellation
of bail.
35. The appeal is, accordingly, disposed of.
Result of the case: Appeal disposed of.
†
Headnotes prepared by: Divya Pandey
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