SC grants bail to UAPA narco-terror accused: bail is the rule and jail an exception even in UAPA cases

New Delhi: Observing that bail is the rule and jail an exception even in UAPA cases, the Supreme Court on Monday granted bail to a man allegedly involved in drug trafficking and financing terror in Jammu and Kashmir.

A bench of Justices BV Nagarathna and Ujjal Bhuyan granted relief to Handwara resident Syed Iftikhar Andrabi in a high-profile narco-terror case and directed him to surrender his passport and report to the local police station once in 15 days.

The NIA is investigating the case filed in 2020 under relevant sections of the Unlawful Activities (Prevention) Act and the IPC.

The top court said Section 43D(5) of the UAPA cannot justify indefinite incarceration and must operate subject to Articles 21 and 22. The section outlines stringent bail restrictions.

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Disapproving the judgment delivered by a two-judge bench in the Gulfisha Fatima case pertaining to Delhi riots, the apex court said it did not properly follow the judgment in KA Najeeb case which recognised long delay in trial as a ground for bail in cases under the UAPA.

In the Delhi riots case, the top court had granted bail to several accused but activists Umar Khalid and Sharejeel Imam were denied the relief.

"Bail the rule and jail the exception is a constitutional principle flowing from article 21 and 22 and the presumption of innocence is the cornerstone of any civilised society governed by rule of law," the bench said. "We have no manner of doubt in stating that even under the UAPA, bail is the rule and jail is the exception. Of course, in an appropriate case, bail can be denied having regard to the facts of that particular case," it added.

The apex court made it clear that its judgement in the KA Najeeb case is a binding law and cannot be diluted, circumvented or disregarded by trial courts, high courts or even by benches of a lower strength of this court.

The KA Najeeb case is a landmark Supreme Court ruling delivered in 2021 regarding bail under the UAPA. Andrabi had challenged an order passed by the High Court of J&K and Ladakh, which dismissed his bail plea, saying the scrutiny of cellphone records indicated that Andrabi had been in touch with terror operatives across the border.

Narrating the sequence of events leading to the apprehension of the accused, the NIA had said that on June 11 2020, the police intercepted a car belonging to Abdul Momin Peer at Kairo Bridge, Handwara. During search, Rs 20.01 lakh cash and two kg heroin were seized and Peer was arrested.

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Later, on his disclosure, Andrabi and Islam-Ul-Haq Peer were arrested. Investigation revealed that the accused were allegedly involved in cross-border smuggling and supply of heroin in Jammu and Kashmir and other parts of the country after procuring the same from their associates based in Pakistan, the charge-sheet said.

Andrabi and Abdul Momin Peer had visited Pakistan several times during 2016-17 to meet the operatives of terrorist organisations, Lashkar-e-Taiba and Hizbul Mujahideen (HM), it said, adding the amount generated from the sale of heroin was used by the accused to further the terrorist activities of Lashkar-e-Taiba.