Disclosure Statement Of Co-Accused Alone Insufficient To Deny Bail Under UAPA: J&K&L High Court

The Court further observed that prolonged incarceration of nearly four and a half years and the slow progress of trial are relevant considerations for granting bail.

The Court was hearing an appeal filed by an accused against the judgment of the Special Judge (UAPA), Anantnag, which had rejected his bail application in a case arising out of FIR No. 102/2020 for offences punishable under Sections 307 IPC, 7/25 of the Arms Act, and Sections 13 and 39 of the Unlawful Activities (Prevention) Act, 1967.

A Division Bench of Chief Justice Arun Palli and Justice Rajnesh Oswal, while allowing the appeal and setting aside the trial court's order, observed,

“... in view of the only material against the appellant in the form of disclosure statement made by the accused Hafiz Abdullah Malik, we are of the considered view that the appellant has successfully crossed the hurdle of 43-D(5) of the Act.”

In the instant case police received specific information about the hiding of militants in Village Wahadan. During a search operation, one militant of banned outfit Lashkar-e-Taiba was apprehended in injured condition, who disclosed his name as Hafiz Abdullah Malik. One pistol, one magazine and seven cartridges were recovered from his possession.

During questioning, Hafiz Abdullah Malik disclosed that the appellant was working as an Over Ground Worker with the terrorist organization. The appellant was arrested on the basis of this disclosure statement. No incriminating material was recovered from the appellant. After investigation, a charge sheet was produced. Of the 30 witnesses cited, only 13 had been examined at the time of the bail application. The trial court dismissed the bail application, and the appellant preferred the present appeal.

Court's Observations:

The Court noted that the appellant had been arrayed as accused No. 2 in the charge sheet only on the basis of the statement made by accused No. 1, Hafiz Abdullah Malik, wherein he stated that the appellant was working as an Over Ground Worker. The Court observed, “There is no recovery of any incriminating material from the appellant.”

The Court referred to National Investigation Agency v. Zahoor Ahmad Shah Watali (2019) 5 SCC 1 , which held that the Court must assess whether there are reasonable grounds for believing that the accusations are prima facie true, based on the totality of the material. Applying this principle, the Court found that except the disclosure statement of the co-accused, no material had been brought to the notice of the Court incriminating the appellant.

The Court also relied upon Union of India v. K. A. Najeeb (2021) 3 SCC 713 , which observed that prolonged incarceration and the unlikelihood of an early conclusion of trial are relevant considerations in appropriate cases. The Court noted that the appellant had been in custody for nearly four and a half years, and the prosecution had produced only 13 out of 30 cited witnesses, highlighting the slow progress of the trial.

The Court acknowledged that Section 43-D(5) of the UAPA provides stringent conditions for granting bail where an accused is arrested for commission of offences punishable under Chapters IV and VI of the Act. However, the Court held,

“in view of the only material against the appellant in the form of disclosure statement made by the accused Hafiz Abdullah Malik, we are of the considered view that the appellant has successfully crossed the hurdle of 43-D(5) of the Act.”

The Court further observed that no material had been brought to its notice that the release of the appellant would hamper the trial or that the appellant would indulge in influencing witnesses.

The Court thus allowed the appeal, set aside the trial court's order and granted bail to the appellant subject to conditions.

Case Title: Burhan Ahmad Mattoo v. Union Territory of Jammu and Kashmir

Citation: 2026 LiveLaw (JKL)

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