Rigours of Section 43-D(5) Melt Down When Liberty Is at Stake: Punjab & Haryana High Court Grants Bail in UAPA Case After 2.5 Years’ Custody

“A Constitutional Court Cannot Be Restrained from Enforcing Article 21” —  In a significant reaffirmation of constitutional supremacy over statutory restrictions, the Punjab and Haryana High Court granted regular bail to an accused booked under the Unlawful Activities (Prevention) Act, 1967, holding that prolonged incarceration without foreseeable conclusion of trial violates the guarantee of personal liberty under Article 21.

A Division Bench comprising Justice Anupinder Singh Grewal and Justice Deepak Manchanda set aside the order dated 22.11.2023 whereby the Additional Sessions Judge, S.A.S. Nagar had declined bail.

The Court made it clear that “the presence of statutory restrictions like Section 43-D(5) of UAPA per se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution.”

Allegations of Separatist Links, But No Recovery

The appellant was booked under Sections 120-B, 153, 153-A and 201 IPC, Sections 25 and 25(7) of the Arms Act and Sections 17, 18 and 20 of UAPA. The allegations were that he was a member of a criminal gang with separatist ideology and had conducted recce of a Shiv Sena leader in Ludhiana. It was further alleged that he and his associates had acquired illegal arms and ammunition.

However, the Court recorded a crucial fact — “no recovery of either in form of fire arms, ammunition or any other incriminating material has been effected from him.” The appellant was also not involved in any other criminal case.

Two Years and Six Months in Jail — Trial Crawling

The custody certificate showed that the appellant had remained in custody for over 2 years, 6 months and 12 days. Out of 21 prosecution witnesses, only four had been examined, and cross-examination of three remained pending.

The Bench observed that the end of trial was “not in sight,” and cautioned that the “lengthy and arduous process of trial cannot be allowed to become a punishment in itself.”

Article 21 Prevails Over Statutory Embargo

Relying on Union of India v. K.A. Najeeb, the Court reiterated that long incarceration is a significant ground for bail even in UAPA cases. It quoted the Supreme Court’s authoritative pronouncement:

“The rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence.”

The Bench emphasized that Section 43-D(5) is not an absolute bar but merely “another possible ground” to refuse bail. Where fundamental rights are infringed, constitutional courts retain full authority to intervene.

“Serious Allegations Alone Cannot Justify Indefinite Detention”

Addressing the State’s argument regarding gravity of allegations, the Court referred to Vernon v. State of Maharashtra and held that seriousness of accusations cannot be the sole basis to deny bail when prolonged incarceration undermines constitutional guarantees.

“Allegations against them no doubt are serious, but for that reason alone bail cannot be denied.”

The Bench balanced the gravity of the alleged offence against the constitutional mandate of personal liberty and concluded that continued detention would be disproportionate.

Speedy Trial Is Not a Formality

Reinforcing the right to speedy trial, the Court observed that pre-trial detention may be justified to prevent tampering with evidence or absconding. However, once it becomes evident that trial will not conclude within a reasonable time, detention risks turning punitive.

Quoting Supreme Court jurisprudence, the Bench underscored that “any form of deprival of liberty must be proportionate” and must satisfy the standards of fairness and reasonableness under Article 21.

Bail Is to Secure Presence, Not to Punish

The Court reiterated a foundational principle of criminal law: “the purpose of bail is only to secure the attendance of the accused at the trial and bail is not to be withheld as a form of punishment.”

With no recovery from the appellant, no past criminal history, and the trial progressing slowly, the Court found continued incarceration unjustified.

Bail Granted With Safeguards

Allowing the appeal, the Court directed the appellant’s release on regular bail subject to stringent safeguards. He was directed to furnish a bond of ₹1 lakh with two sureties of like amount, surrender his passport, appear before the Trial Court on every date, report to the Investigating Officer as required, and mark attendance before the SHO on alternate Mondays till conclusion of trial.

The Court clarified that any breach of conditions would entitle the prosecution to seek cancellation of bail, and that its observations were confined strictly to the bail stage.

Constitutionalism Over Penal Rigidity

In a broader reflection, the Bench reaffirmed that “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.”

The ruling stands as another strong judicial reminder that statutory embargoes, however stringent, cannot eclipse the fundamental right to life and personal liberty guaranteed under Article 21.

Date of Decision: 18.02.2026