UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967 – S.43-D(5) – Bail – Long incarceration – Constitutional courts – Scope of Article 21 – Whether statutory embargo under UAPA overrides fundamental right to speedy trial – Binding nature of larger Bench decisions – Smaller Benches diluting constitutional ratio impermissible – NDPS ACT, 1985 – S.37 – Stringent bail conditions – Effect.

APEX COURT HELD THAT 

UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967 – S.43-D(5) – Bail – Long incarceration – Constitutional courts – Scope of Article 21 – Whether statutory embargo under UAPA overrides fundamental right to speedy trial – Binding nature of larger Bench decisions – Smaller Benches diluting constitutional ratio impermissible – NDPS ACT, 1985 – S.37 – Stringent bail conditions – Effect.

Appellant charged under Sections 17, 38 and 40 UAPA read with Sections 8, 21, 25 and 29 NDPS Act and Section 120B IPC alleging narco-terror funding and links with proscribed terrorist organisations – Appellant in custody since 11.06.2020 – Chargesheet filed in 2020 – More than 350 prosecution witnesses remained to be examined – Trial progressing slowly – Bail rejected by Special NIA Court and High Court on ground of seriousness of accusations and statutory restrictions under Section 43-D(5) UAPA and Section 37 NDPS Act – Sustainability.

Held : Right to personal liberty and speedy trial guaranteed under Article 21 Constitution remains overarching, sacrosanct and enforceable even in prosecutions under special penal statutes such as UAPA and NDPS Act. Statutory embargoes under Section 43-D(5) UAPA and Section 37 NDPS Act cannot eclipse constitutional jurisdiction of courts to grant bail where prolonged incarceration and denial of speedy trial amount to violation of Article 21.

Three-Judge Bench decision in Union of India v. K.A. Najeeb authoritatively declares constitutional limitation on operation of statutory restrictions against bail under UAPA. Rigours of Section 43-D(5) “melt down” where:
(i) trial is unlikely to conclude within reasonable time;
(ii) accused has undergone substantial period of incarceration;
and
(iii) continued detention converts undertrial custody into punitive imprisonment.

Smaller Benches cannot dilute, circumvent or hollow out ratio of larger Bench decisions without express disagreement or reference to larger Bench. Judicial discipline mandates that a Bench of lesser strength must either follow binding precedent or refer matter to larger Bench. Any attempt to read down binding constitutional principles indirectly is impermissible.

Seriousness of allegations or gravity of offence cannot indefinitely justify denial of bail where prosecution fails to ensure expeditious trial. More stringent the penal statute, greater becomes constitutional obligation of State and courts to ensure speedy adjudication.

Section 43-D(5) UAPA only mandates prima facie assessment based on case diary or police report and does not authorise courts to mechanically deny bail despite prolonged incarceration and absence of likelihood of early conclusion of trial.

Constitutional courts must harmonise statutory restrictions with Article 21 and lean in favour of constitutionalism and rule of law. Preventive incarceration of undertrials for prolonged periods without realistic prospect of conclusion of trial violates constitutional guarantees irrespective of nature or gravity of accusation.

Court criticised tendency of subsequent smaller Bench decisions to distinguish or dilute binding principles laid down in Union of India v. K.A. Najeeb by overemphasising seriousness of allegations or by treating long incarceration as insignificant.

Presumption of innocence continues to operate till conviction and undertrial detention cannot be permitted to become substitute for punishment.

Shaheen Welfare Association v. Union of India; Union of India v. K.A. Najeeb; Javed Gulam Nabi Shaikh v. State of Maharashtra; Sheikh Javed Iqbal v. State of Uttar Pradesh, followed.
Gurwinder Singh v. State of Punjab, explained and doubted insofar as it diluted binding ratio of larger Bench in Union of India v. K.A. Najeeb.

(Paras 19 to 27)

ANALYSIS OF FACTS AND LAW

Supreme Court undertook extensive constitutional examination of:

• interaction between Article 21 and Section 43-D(5) UAPA,
• prolonged undertrial incarceration,
• and doctrinal discipline relating to precedential hierarchy.

Factual background revealed that appellant had remained incarcerated since June 2020 in prosecution involving allegations of:

• narco-terror funding,
• heroin smuggling,
• terror financing,
• and alleged links with LeT/HM operatives.

Despite filing of chargesheet in 2020:

• trial progressed extremely slowly,
• more than 350 prosecution witnesses still remained to be examined,
• and completion of trial in near future appeared impossible.

Appellant relied heavily upon constitutional jurisprudence flowing from:
Union of India v. K.A. Najeeb,
which recognised that prolonged incarceration and denial of speedy trial dilute statutory embargo against bail under UAPA.

Supreme Court then undertook detailed doctrinal survey of earlier precedents including:

• Shaheen Welfare Association v. Union of India,
• Lt. Col. Prasad Shrikant Purohit v. State of Maharashtra,
• Union of India v. K.A. Najeeb,
• Javed Gulam Nabi Shaikh v. State of Maharashtra,
• and Sheikh Javed Iqbal v. State of Uttar Pradesh.

Court repeatedly emphasised that:
speedy trial forms inseparable component of Article 21.

Most significant doctrinal contribution of judgment lies in its criticism of later smaller Bench decisions attempting to dilute constitutional ratio of larger Bench judgments.

Court specifically analysed Gurwinder Singh v. State of Punjab and observed that:

• smaller Bench cannot narrow or indirectly dilute ratio of larger Bench,
• judicial discipline requires obedience to precedential hierarchy,
• and if disagreement exists, only permissible course is reference to larger Bench.

Supreme Court strongly reaffirmed constitutional supremacy over statutory bail restrictions and reiterated that:
Section 43-D(5) UAPA cannot become mechanism for indefinite incarceration without trial.

Court clarified that:

• seriousness of accusation alone cannot justify endless denial of liberty,
• especially where prosecution itself is unable to complete trial within reasonable time.

Another important aspect noted by Court was:
constitutional courts must not mechanically rely upon “gravity of offence” while ignoring prolonged deprivation of liberty.

Court stressed:
more rigorous the statute,
greater becomes obligation upon State to ensure expeditious adjudication.

Judgment therefore substantially reinforces constitutional primacy of:

• liberty,
• speedy trial,
• and proportionality in undertrial detention jurisprudence under special statutes like UAPA and NDPS Act.

RATIO

Statutory restrictions on bail under Section 43-D(5) UAPA and Section 37 NDPS Act do not override constitutional guarantees under Article 21. Where undertrial incarceration becomes prolonged and trial is unlikely to conclude within reasonable time, constitutional courts are empowered and obligated to grant bail notwithstanding statutory embargoes. Rigours of special statutes “melt down” when continued detention violates right to speedy trial. Smaller Benches cannot dilute or circumvent binding constitutional principles laid down by larger Benches without reference to larger Bench.