Forty of 120 witnesses had been examined in nearly eight years. The Division Bench held that although the Supreme Court has referred the interplay between Article 21 and Section 43D(5) of the UAPA to a larger Bench, a High Court must still decide on the law as it stands. Bail was granted on fourteen conditions, with no view expressed on the merits.
New Delhi: The Delhi High Court has granted bail to a man who has been in custody since December 2018 in a case investigated by the National Investigation Agency, holding that the pendency of a reference before a larger Bench of the Supreme Court on bail under the Unlawful Activities (Prevention) Act is no reason for a High Court to defer decision [Mohammad Saqib @ Saqib Iftekar v. National Investigation Agency].
A Division Bench of Justice Navin Chawla and Justice Ravinder Dudeja allowed the appeal under Section 21(4) of the NIA Act, set aside the trial court’s order of May 2024 refusing bail, and released the appellant subject to fourteen conditions. The judgment was authored by Justice Navin Chawla.
The background
The appellant is an accused in an FIR registered by the NIA in 2018 under Sections 120B, 121, 121A and 122 of the IPC, Sections 17, 18, 18B, 20, 38 and 39 of the UAPA, and Sections 4 and 5 of the Explosive Substances Act, 1908. He was taken into custody on December 26, 2018.
The charge-sheet alleges that he was a member of a proscribed group, that he propagated an extremist ideology, that he was instrumental in the formation of a module, that he arranged for weapons through contacts in western Uttar Pradesh, and that he travelled to Jammu and Kashmir twice with a co-accused to seek contact with militants. These are allegations in the charge-sheet. They have not been tested at trial and the appellant has not been convicted of anything.
His counsel argued that even on the prosecution’s own case he was at most a peripheral participant rather than part of the core module, and that the witnesses relied upon against him, all of whom stood examined, did not implicate him. The Special Public Prosecutor for the NIA countered that the allegations were serious, that the appellant had introduced the alleged prime motivator of the module to a supplier of weapons, and that mere delay in the trial could not by itself justify bail.
The state of the trial
The arithmetic did much of the work. The Court recorded that the appellant had been in jail for almost eight years, and that of 120 witnesses cited by the prosecution, statements of only 40 had been recorded. The prosecutor submitted that 39 witnesses would be dropped. Even accounting for that, the Bench held, the trial was not likely to end any time soon.
Deciding while the law is unsettled
The most consequential part of the judgment is how the Bench navigated a genuinely unsettled area of law.
Drawing on its own earlier decision in Khuram Parvez v. National Investigation Agency, the Court traced the line from Union of India v. K.A. Najeeb, where a three-Judge Bench held that the rigours of Section 43D(5) melt down where there is no likelihood of the trial concluding within a reasonable time, through the Supreme Court’s decision in Gulfisha Fatima v. State (NCT of Delhi), which set out a structured, accused-specific inquiry under the provision, to Syed Iftikhar Andrabi v. National Investigation Agency, in which a coordinate Bench doubted the correctness of Gulfisha Fatima and reaffirmed that bail is the rule and jail the exception even under the UAPA.
The Bench noted that the interplay between Article 21 and Section 43D(5) has since been referred to a larger Bench in Tasleem Ahmed v. State Govt. of NCT of Delhi by an order of May 22, 2026, in which the Supreme Court observed that delay cannot be the sole ground for bail and that the inquiry is contextual, while clarifying that nothing in that order was intended to whittle down the authority of K.A. Najeeb. The Bench also recorded that the Supreme Court, having made the reference, nonetheless went on to grant the appellant before it six months’ interim bail.
On whether a pending reference justifies waiting, the Court relied on Union Territory of Ladakh v. Jammu and Kashmir National Conference:
“We make it absolutely clear that the High Courts will proceed to decide matters on the basis of the law as it stands. It is not open, unless specifically directed by this Court, to await an outcome of a reference or a review petition, as the case may be. It is also not open to a High Court to refuse to follow a judgment by stating that it has been doubted by a later coordinate Bench.”
Where two coordinate Benches conflict, that decision directs High Courts to follow the earlier one. The practical effect is that the reference did not freeze bail applications in the High Court while the Supreme Court works through the question.
Evidence recorded after the trial court’s order
A second procedural point arose. The prosecutor submitted that because the witnesses relevant to the appellant had been examined only after the trial court refused bail, the High Court sitting in appeal should not look at that material, and the appellant should instead be sent back to the trial court with liberty to apply afresh.
The Bench declined. It recorded that the hearing of the appeal had itself been adjourned to allow the trial court to record the testimony of those very witnesses, and that given the length of the appellant’s incarceration and the pendency of the appeal, it would not be just to ignore the material and remand him to another round of proceedings.
Restraint on the evidence
Having examined the depositions, the Bench deliberately declined to analyse them in the judgment:
“We have intentionally refrained ourselves from giving a detailed analysis of the statements of the witnesses already recorded, as it is likely to prejudice the trial. We may only state that prima facie we do not find them grave enough to prolong the period of detention of the appellant during trial.”
On the electronic material recovered from the appellant’s phone, the Court accepted that the chats were grave in nature, but held that given the length of pre-trial incarceration they did not warrant continued denial of bail. It added that it was moved particularly by the long period of custody.
The Bench made clear that its observations were for the purpose of considering bail alone and were not to be construed as any view on the merits.
The conditions
Release was made subject to a personal bond of Rs 50,000 with two sureties, surrender of passport, and a bar on leaving the country without permission. The appellant is not to leave his native district except to attend trial in Delhi or to report to the NIA, must use a single mobile number kept switched on throughout, and must report to the NIA branch office at Lucknow once a fortnight, with a separate attendance register maintained for him.
He is further barred from contacting or communicating with any prosecution witness, protected witness or co-accused or their families, from tampering with evidence, from making any public statement touching the merits of the case, from any activity prejudicing public order or the integrity of the trial, and from circulating anti-national material on social media. Breach of any condition entitles the prosecution to seek cancellation.
Why it matters
The reference in Tasleem Ahmed created a real risk of paralysis. With one Supreme Court Bench having doubted another on precisely the question that governs every UAPA bail application premised on delay, a High Court could plausibly have adjourned such matters to await clarity, leaving undertrials in custody for however long the reference takes. This judgment says that is not the course, and it grounds that in a direction the Supreme Court itself gave in Ladakh. For anyone in prolonged UAPA custody, that is the most immediately useful part of the decision.
The second point of interest is the accused-specific approach. The framework the Court applied asks whether the role attributed to the individual reflects a real and meaningful nexus to the proscribed activity as distinguished from mere association or peripheral presence, and warns against treating all accused in a conspiracy identically. That is what allows a court to release one accused in a module while others remain in custody, and it is the analytical device doing the work in this judgment, even though the Bench avoided spelling out its assessment of the evidence.
The restraint itself deserves notice. A bail court that reasons at length about why witness testimony is weak hands the defence a document to deploy at trial and invites the charge of a mini-trial at the bail stage, which is precisely what the Supreme Court has cautioned against. Stating a conclusion without the analysis is the harder discipline, and it is the one the statutory scheme contemplates.
What the judgment does not do is resolve anything about the allegations. The trial continues, the charges stand, and roughly 40 of the prosecution’s witnesses have been examined out of a list that once ran to 120. Bail after eight years is a statement about the constitutional limits of pre-trial detention, not about guilt or innocence.
Case Title: Mohammad Saqib @ Saqib Iftekar v. National Investigation Agency [CRL.A. 676/2024]
Bench: Justice Navin Chawla and Justice Ravinder Dudeja, High Court of Delhi at New Delhi
Reserved on: August 31, 2026 | Pronounced on: September 14, 2026 | Neutral Citation: 2026:DHC:7763-DB
Appearances: Advocate Sarim Naved for the appellant. Special Public Prosecutor Rahul Tyagi with Advocates Priya Rai, Avinash Kumar Singh, Priyansh Raj Singh and Amit Rohila for the National Investigation Agency.