Prolonged Incarceration, Weak Prosecution Case Can Justify UAPA Bail Even If Prima Facie Accusations Exist: J&K&L High Court
LIVELAW NEWS NETWORK
10 April 2026 12:25 PM IST
The Jammu & Kashmir and Ladakh High Court has held that prolonged incarceration of an accused, when coupled with the weakness of the prosecution case based on uncorroborated approver testimony and confessional statements of co-accused, can constitute a valid ground for grant of bail under the Unlawful Activities (Prevention) Act, 1967, even if the statutory threshold under Section 43-D(5) is otherwise satisfied.
The Court was hearing an appeal filed under Section 21 of the National Investigation Agency Act, 2008, by an accused (A-13) challenging the order passed by the Special Judge, NIA, Jammu, which had declined his bail application in a case registered under Section 120-B IPC, Sections 8/21 of the NDPS Act, and Sections 17, 18 and 20 of the UAPA.
The Division Bench of Justice Sanjeev Kumar and Justice Sanjay Parihar observed,
“While delay alone may not be decisive, the weakness of the prosecution case coupled with prolonged incarceration can be a valid ground for grant of bail.”
Background:
The appellant was arrayed as A-13 in a case arising out of Crime Case Jammu registered on June 23, 2020. The allegations against him were that he was an active smuggler and transporter of charas between 2003 and 2018, supplying contraband to dealers in Mumbai, Delhi, Nasik and Ajmer. It was further alleged that he was arrested in 2012 in an NDPS case and during detention came into contact with co-accused Showkat Ahmad Parray (A-8), who later became an approver.
The prosecution case rested primarily on the statement of the approver, voice clips, and chats recovered from mobile phones. No recovery was effected from the appellant, and he had been in custody since March 1, 2021.
Court's Observation:
The Court examined the legal position governing bail under the UAPA. Referring to National Investigation Agency v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 9, the Court noted that at the stage of bail, the Court must examine whether there are reasonable grounds for believing that the accusations are prima facie true. However, the Court also relied upon Union of India v. K.A. Najeeb, (2021) 3 SCC 713, where the Supreme Court held that constitutional courts retain the power to grant bail in cases of prolonged incarceration where the trial is unlikely to conclude within a reasonable time.
The Court further relied upon Vernon v. State of Maharashtra, (2023) 10 SCC 620, which held that the Court is not expected to act as a mere post office of the prosecution but must assess the probative value of the material relied upon.
On the evidentiary value of confessional statements and approver testimony, the Court held that confession of a co-accused is a weak type of evidence and cannot be made the foundation of conviction. This principle was reinforced by referring Haricharan Kurmi v. State of Bihar, AIR 1964 SC 1184, and Bhuboni Sahu v. King, AIR 1949 PC 257. The Court noted a recent 2025 where Supreme Court held that confessional statements of co-accused can be taken into consideration only subject to strict compliance with Sections 24 to 30 of the Evidence Act and cannot independently sustain the prosecution case.
Applying these principles, the Court found that no recovery had been effected from the appellant, nor was there any material to demonstrate his conscious possession, direct participation, or involvement in any transaction leading to recovery of narcotic substances from other co-accused. The entire case rested upon the statement of an approver and alleged telephonic contacts, without corroborative evidence such as financial transactions, recovery, or overt acts attributable to the appellant and the role attributed to the appellant appeared to be peripheral and inferential, the Court pointed.
The Court held that even if the prosecution material was taken at its face value, there were no reasonable grounds to believe that the accusations against the appellant were prima facie true. The absence of recovery, lack of direct nexus, and reliance upon weak evidentiary material further diluted the prosecution case. The continued incarceration of the appellant, particularly in the backdrop of prolonged custody, would be inconsistent with the mandate of Article 21 of the Constitution, the bench maintained.
The Court thus set aside the impugned order and directed the release of the appellant on bail subject to conditions.
Case Title: Amin Allaie Vs National Investigating Agency, Jammu
Citation: 2026 LiveLaw (JKL)