Syed Iftikhar Andrabi v. National Investigation Agency
Supreme Court of India, 18 May 2026, 2 judges, 2026 INSC 503
Restating that the three-Judge Bench ruling in K.A. Najeeb binds smaller Benches, the Court held that Section 43-D(5) UAPA yields to Article 21 in cases of prolonged custody and delayed trial, and granted bail.
Facts
The appellant, a government employee in Kupwara, had been preventively detained in 2019 under the Jammu and Kashmir Public Safety Act, 1978 and released in April 2020. On 11.06.2020 he was arrested in a police case under the NDPS Act after cash and heroin were seized from a vehicle. The NIA took over the investigation and filed a chargesheet alleging narco-terrorism. On 15.11.2023 he was charged with offences under Sections 8, 21, 25 and 29 of the NDPS Act, Sections 17, 38 and 40 of the UAP Act and Section 120B IPC. The Special NIA Court rejected regular bail on 10.08.2024 and the High Court of Jammu and Kashmir and Ladakh dismissed his appeal under Section 21 of the NIA Act on 19.08.2025. He had been in custody for over five years, with more than 350 prosecution witnesses still to be examined.
Questions before the Court
- How does the bail embargo in Section 43-D(5) of the UAP Act interact with the right to personal liberty and speedy trial under Article 21?
- Could two-Judge Benches (Gurwinder Singh, Gulfisha Fatima) narrow the three-Judge Bench decision in Union of India v. K.A. Najeeb?
- Was the appellant, in custody for nearly six years with the trial far from over, entitled to bail?
What the Court held
- Statutory restrictions like Section 43-D(5) do not oust the power of constitutional courts to grant bail for violation of Part III. Where custody is prolonged and the trial is unlikely to end within a reasonable time, the court may grant bail even if the prima facie threshold under Section 43-D(5) is met.
- K.A. Najeeb, a three-Judge Bench decision, is binding law. Trial courts, High Courts and smaller Benches of the Supreme Court cannot dilute, circumvent or disregard it; a smaller Bench that disagrees must seek a reference to a larger Bench.
- The 'twin-prong test' in Gurwinder Singh, under which bail is barred once the accusation is prima facie true, flows neither from Section 43-D(5) nor from Najeeb, and the reading of Najeeb in Gurwinder Singh and Gulfisha Fatima departs from its ratio.
- 'Bail is the rule and jail is the exception' is a constitutional principle drawn from Articles 21 and 22 and the presumption of innocence. It applies even under the UAP Act, though bail may be denied on the facts of a particular case.
- Watali must be read in its context, as a case where the High Court conducted a mini trial at the bail stage. It cannot be invoked to justify indefinite incarceration.
- The appellant was granted bail: no recovery from his person or premises, the implicating statements were made to the police, no prior antecedents, interim bail not misused, over five years in custody with more than 350 witnesses left, and a very low UAPA conviction rate.
Why it matters
The judgment restates the K.A. Najeeb principle that prolonged incarceration and a delayed trial can override the Section 43-D(5) embargo under Article 21. It holds that Najeeb binds smaller Benches and criticises the narrower readings in Gurwinder Singh and Gulfisha Fatima, including the 'twin-prong test'. It treats 'bail is the rule' as a constitutional principle that applies under the UAP Act, and it relies on official UAPA conviction statistics in assessing the bail prayer.
In the Court's words
Copied from the official judgment; each passage links to its page.
“As a matter of law, nothing further need be said except that in any case, constitutional courts can always intervene to grant bail despite satisfaction of prima facie threshold under Section 43-D(5), and the section need not control the grant of bail if the accused person's liberty is infringed for a prolonged period of time. The power of the constitutional court to grant such a prayer cannot in our view be diminished by exercise of legislative power.”
“The emphasis in Najeeb was constitutional in nature: it was directed towards preventing Section 43-D(5) from overpowering Article 21 considerations in cases of gross delay and prolonged incarceration. The constitutional force of Najeeb lies in its restoration of the hierarchy between a statute, namely, the UAP Act, and the Constitution. Section 43-D(5) remains subordinate to Article 21 at all times and a constitutional court need not hold back bail to the accused in the garb of Section 43-D(5).”
“The often invoked phrase 'bail is the rule and jail is the exception' is not merely an empty statutory slogan flowing from the CrPC as Gurwinder has stated. It is a constitutional principle flowing from Articles 21 and 22 of the Constitution and the presumption of innocence which is the cornerstone of any civilised society governed by the rule of law.”
“In that spirit, we make it clear that Najeeb is binding law entitled to the protection of stare decisis. It cannot be diluted, circumvented, or disregarded by trial courts, High Courts or even by Benches of lower strength of this Court.”
Provisions interpreted
Related judgments
- Explains National Investigation Agency v. Zahoor Ahmad Shah Watali (2019)“Watali cannot be invoked to justify indefinite incarceration of the accused under the UAP Act.” (page 63)
Case and bench
- Parties
- Syed Iftikhar Andrabi v. National Investigation Agency, Jammu
- Case
- Criminal Appeal No. ___ of 2026 (arising out of SLP (Criminal) No. 1090 of 2026)
- Decided
- 18 May 2026
- Bench
- B.V. Nagarathna, Ujjal Bhuyan
- Opinions
- Unanimous. Judgment authored by Ujjal Bhuyan, J., which records that it is based on the inputs of B.V. Nagarathna, J.