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by sayum
23 May 2026 8:37 AM
"Differentiation Is Not an Exception to Conspiracy Law — It Is a Constitutional Discipline Imposed Upon the Exercise of Bail Jurisdiction", Delhi High Court has granted bail to two accused charged under the Unlawful Activities (Prevention) Act and the Indian Penal Code in a major NIA case involving an alleged conspiracy by hybrid cadres and sleeper cells of proscribed terrorist organisations to carry out violent acts in Jammu & Kashmir and other parts of India.
A Division Bench of Justice Navin Chawla and Justice Ravinder Dudeja, deciding the appeals on March 20, 2026, held that the role attributed to both appellants was predominantly digital and non-violent in nature, that one of the key prosecution witnesses had failed to identify an accused before the trial court, and that with 359 witnesses proposed and only 12 examined, continued pre-trial detention amounting to over four years had become disproportionate and potentially violative of Article 21 of the Constitution.
The court examined the scope and standard of judicial inquiry under Section 43-D(5) UAPA; whether the role attributed to each accused individually satisfied the prima facie threshold; whether prolonged pre-trial incarceration with no foreseeable end to trial engaged Article 21 rights in a differentiated manner based on individual attribution; and whether possession and sharing of extremist digital content, absent creation or independent dissemination, constitutes membership of or active participation in a proscribed organisation.
The Section 43-D(5) Standard — Structured, Accused-Specific, Non-Mechanical
The court drew heavily on the Supreme Court's recent and comprehensive reformulation of the bail standard under Section 43-D(5) UAPA in Gulfisha Fatima v. State (GNCTD), 2026 INSC 2. It held that the provision mandates a threshold judicial inquiry that is neither perfunctory nor adjudicatory. Three specific questions must be answered for each accused individually: whether prosecution material prima facie satisfies the statutory ingredients of the offence; whether the role attributed reflects a real and meaningful nexus to unlawful or terrorist activity, as distinct from mere association or peripheral presence; and whether the statutory threshold is crossed qua the individual accused — without embarking upon a mini-trial. "Where these requirements are met, the statutory restraint on the grant of bail must operate with full force; where they are not, the embargo stands lifted."
Key Prosecution Witness Failed to Identify Accused No. 14
One of the most significant factual findings in the judgment concerned witness X-8 — one of the key prosecution witnesses relied upon to establish that Zamin Adil Bhat (Accused No. 14) had radicalised and instigated youth by sharing extremist videos and content. When X-8 was finally examined before the trial court on April 30, 2025, he did not identify Accused No. 14 as the person who shared such material with him or instigated him. The court declined to treat this as determinative — noting it was not conducting a mini-trial — but held it was nonetheless a relevant factor under the Section 43-D(5) inquiry as expounded in Gulfisha Fatima.
Mere WhatsApp Group Membership, Without Creation or Sharing, Is Insufficient
The court found that the core allegation against both appellants was that they were members of social media groups where anti-national messages propagating terrorism were being shared. Critically, however, "there is no allegation of the appellant(s) being the creators of these groups or of sharing any objectionable material therein." With respect to the WhatsApp exchanges between Accused No. 14 and PW-276, the court noted that the material prima facie showed that it was PW-276 who was instigating the accused to share videos — a matter for deeper consideration at trial, but not one that could be completely brushed aside at the bail stage.
Brief Phone Calls and Cell Tower Proximity Insufficient for Conspiratorial Nexus
The prosecution relied on CDR analysis showing the appellants were in contact with Accused No. 3, allegedly a TRF commander's associate. The court found the calls too brief to establish any shared criminal purpose — three calls by Accused No. 14 lasting 97, 49 and 7 seconds, and five calls by Accused No. 15 lasting 35, 9, 7, 21 and 23 seconds. The appellants' explanation that they were delivery boys who may have been in contact with Accused No. 3 in that capacity could not be ruled out as fanciful. Cell tower location data showing proximity was held independently insufficient to establish a meeting for the purposes of a terror conspiracy.
Possession of Extremist Digital Content ≠ Membership of Proscribed Organisation
On the material found on the digital devices of both appellants — including IS imagery, threat posters, and videos glorifying slain militants — the court held that this alone could not justify continued prolonged detention at the trial stage. "It is not the case of the prosecution that the appellants are the creators of this content or had further disseminated this content to others." Drawing on Thwaha Fasal v. Union of India, 2021 SCC OnLine SC 1000, the court affirmed: "Sympathy for a cause, or even the possession of literature and digital content associated with a banned organisation, does not by itself constitute membership of such organisation or active participation in its terrorist activities, absent a demonstrated nexus to actual terrorist acts." The court held that the distinction between ideological alignment and operational participation is constitutionally significant and must be borne in mind while applying the prima facie standard.
Article 21 and the Constitutional Discipline of Differentiated Bail Inquiry
The court delivered a significant constitutional holding on the relationship between conspiracy law and bail jurisdiction. It rejected the proposition that all co-accused in a conspiracy case must be treated identically simply because they arise from a common transaction. "Treating all accused identically irrespective of their roles would risk transforming pre-trial detention into a punitive mechanism divorced from individual circumstances."
The court drew a sharp distinction between two separate legal exercises: "One is the determination of criminal liability, which belongs to trial. The other is the regulation of personal liberty pending trial, which is the limited concern of bail. The law of conspiracy explains how several persons, acting at different levels and at different points of time, may be bound together by a common design. That doctrine answers the question of liability. It does not answer, by itself, the separate question of how long and on what basis the liberty of each individual may be restrained before guilt is proved."
With 359 witnesses proposed, only 12 examined, and the trial still at an early stage despite more than four years having elapsed, the court held that continued detention was disproportionate given the limited and predominantly digital role attributed to the appellants. It expressly noted that even if the witness list were curtailed, the trial would still take considerable time to conclude.
Health Condition of Haris Nisar Langoo — Relevant, Though Not Independently Decisive
The court noted that Accused No. 15, Haris Nisar Langoo, suffered from cervical spondylosis that had reportedly deteriorated during incarceration. While holding that medical grounds are not independently decisive in Section 43-D(5) cases, the court treated the health condition as an additional relevant consideration: "Prolonged pre-trial detention of a person whose alleged role is predominantly digital and non-violent in nature, and who is additionally suffering from a documented ailment, further tilts the balance in favour of conditional release."
The Delhi High Court allowed both appeals, set aside the Special Court's order of March 3, 2023, and directed release of both appellants on bail subject to stringent conditions calibrated to address national security and trial integrity concerns.
Date of Decision: March 20, 2026
