Mere Possession of Arms, Without Terror Link, Not Enough to Deny Bail Under UAPA: Punjab and Haryana High Court

“Even the Most Stringent Bail Restrictions Must Yield to Article 21 When Trial is Delayed Indefinitely”, In a significant ruling that underscores the constitutional primacy of Article 21, the Punjab and Haryana High Court set aside the denial of bail to an accused under the Unlawful Activities (Prevention) Act, 1967 (UAPA), holding that prolonged incarceration without trial, absent any cogent material linking the accused to terrorism, cannot justify continued detention.

The Court held that despite the applicability of UAPA provisions, “there is no evidence establishing a prima facie case of terrorism against the appellant”, and mere recovery of arms, in the absence of any credible link to terrorist acts or declared terrorists, was insufficient to attract the embargo under Section 43D(5) of the UAPA. It further declared:
“Even in UAPA cases, the rule of law and fundamental rights cannot be suspended. The bail restrictions under Section 43D(5) must give way to constitutional safeguards where there is undue delay and no prima facie case is made out.”

“No Charges Framed Two Years After Filing Charge Sheet — Continued Custody Violates Right to Speedy Trial”

The facts of the case relate to an FIR registered on 6 June 2022, in which the appellant was not initially named, but later implicated based on a disclosure statement made by a co-accused during police custody. The allegation was that the appellant, after being released from jail, received instructions via WhatsApp from an alleged terrorist and helped retrieve two pistols and live cartridges hidden in Pathankot, which were later recovered from his residence.

The Court, however, observed that the State failed to produce any record of such WhatsApp communication, any proof of jail-time overlap between the appellant and alleged terrorists, or evidence that those named were even officially declared terrorists.

Despite completion of the investigation and filing of the charge sheet under Section 173 CrPC on 5 January 2023, no charges had been framed as of the date of the decision, owing to non-availability of sanction under Section 45 of the UAPA.

The Bench noted: “Investigation is over. The prosecution does not require the appellant for any further purpose. Yet, he has remained in custody for almost three years while trial is not even commenced. This violates the essence of Article 21.”

“No Prima Facie Case Under UAPA — Arms Act May Be Attracted, But Bail Cannot Be Denied in Absence of Terror Link”

Dealing with the stringent test under Section 43D(5) of UAPA, the Court ruled that the prosecution failed to meet the threshold of demonstrating that accusations under Chapters IV and VI of UAPA were prima facie true. The Court observed:

“There is no evidence of a link between the appellant and any act of terrorism. No connection has been shown with any proscribed organisation or individual formally declared a terrorist. The accusations rest solely on disclosure statements, unsupported by corroborative material.”

Relying on the Supreme Court’s authoritative pronouncements in K.A. Najeeb, Vernon, Shoma Kanti Sen, Jalaluddin Khan and others, the Court reinforced the principle that:

“Stringent statutory restrictions under special laws must be harmonised with constitutional guarantees. Where trial is indefinitely delayed, and prima facie case is not evident, continued incarceration violates Article 21 and bail must follow.”

The Bench reaffirmed that bail is not to be denied merely because the allegations appear serious, stating:

“Seriousness of allegations is a factor, not the sole determinant. The right to liberty does not evaporate under the shadow of suspicion.”

“When Co-Accused Are Out, Parity Must Prevail — Appellant’s Role Not Graver”

The Court also found favour in the appellant’s plea for parity, noting that all co-accused, including those from whom arms were directly recovered, and those who allegedly supplied or assisted in retrieval, had already been granted bail. The Court observed:

“The appellant stands on the same footing as those already released. His alleged role is not graver than theirs. Denial of bail solely on distinction not borne out by facts offends the principle of parity.”

The following co-accused had already secured bail:

• Sukhjinder Singh @ Harman and Gagandeep Singh @ Teja, from whom arms were recovered — granted bail by the Trial Court.

• Shiv Dayal and Manjeet Singh, who allegedly supplied weapons — also granted bail.

• Shamsher Singh @ Sherry, who allegedly accompanied the appellant in retrieving weapons — granted bail by a Coordinate Bench.

The Court concluded that “to deny bail to the appellant while others implicated on similar footing remain free would amount to discriminatory detention”.

“Prolonged Pre-Trial Detention is Punishment Before Verdict — Bail is the Rule, Jail an Exception”

In a broader constitutional analysis, the Court relied extensively on the Supreme Court’s jurisprudence to reiterate that bail is the rule, jail is the exception, especially when trials are stalled due to procedural bottlenecks like pending sanctions.

Citing Mohd Muslim @ Hussain v. State (NCT of Delhi), the Court warned against the harsh realities of long incarceration:

“Pre-trial detention, especially in overcrowded jails, destroys livelihoods, tears apart families, and leaves accused individuals to endure irreparable loss. When trial is indefinitely delayed, custody becomes punishment without conviction.”

Referring to Tapas Kumar Palit v. State of Chhattisgarh, the Court urged prosecutors and trial courts to exercise discretion wisely and avoid endless delays by summoning repetitive or unnecessary witnesses. The judgment underscored that “judges are the masters of their courtrooms, and the CrPC offers sufficient tools to ensure timely trials”.

Stringent Conditions Imposed to Safeguard Trial Integrity

While granting bail, the Court imposed stringent conditions, including a ₹10 lakh bond with two sureties, weekly marking of attendance before the local SHO, non-interference with witnesses, and a mandatory undertaking that in case of absence, the trial may proceed without claiming re-examination.

The Bench clarified:

“If any condition is violated, the State will be at liberty to seek cancellation of bail. The appellant must cooperate fully with the trial.”

The impugned order dated 22 December 2023, rejecting bail, was accordingly set aside

“A Sinner Has a Future — Criminals Are Made, Not Born”

Concluding on a humanistic note, the Court echoed the sentiment articulated by the Supreme Court in Javed Gulam Nabi Shaikh v. State of Maharashtra, observing:

“Every saint has a past and every sinner a future. Bail, at its core, is a measure of trust — in the law, in rehabilitation, and in justice itself.

Date of Decision: 17 November 2025