Being a foreign national does not, on its own, put UAPA bail out of reach: the Supreme Court has held that the bar in Section 43D(7) applies only where the prosecution also establishes that the accused entered India unauthorisedly or illegally.
New Delhi: Dismissing the Union of India’s appeal against the grant of bail to a Sri Lankan national in a case under the Unlawful Activities (Prevention) Act, the Supreme Court on October 27, 2026 held that UAPA bail is barred for a non-citizen under Section 43D(7) only where the prosecution shows that the accused entered India unauthorisedly or illegally [Union of India v. Mohamed Rifas @ Mohamed Rigbas].
The appeal, which arose from SLP (Crl.) No. 7177 of 2024, was decided by a Bench of Justice Aravind Kumar and Justice Vipul M. Pancholi. Additional Solicitor General Aishwarya Bhati appeared for the Union, and Advocate A. Velan appeared for the respondent, along with other counsel.
Nationality is not enough
Section 43D(7) of the UAP Act provides that, notwithstanding the earlier sub-sections, no bail shall be granted to a person accused of an offence under the Act if he is not an Indian citizen and has entered the country unauthorisedly or illegally, except in very exceptional circumstances and for reasons recorded in writing. The Court broke the provision into three ingredients: the person must be accused under the Act, must not be an Indian citizen, and must have entered the country unauthorisedly or illegally.
Reading the second and third ingredients together, the Court held that foreign nationality alone does not trigger the bar. It held that there is no bar under the Act to grant bail to a foreign national, and that a stay which becomes illegal later, such as after a visa lapses, does not attract the rigours of the sub-section:
subsequent revocation of authorization or stay becoming illegal won’t attract the rigors of sub-section (7)
Once the prosecution prima facie establishes all the ingredients, the Court said, the provision sets a very high bar, and bail is possible only in very exceptional circumstances with reasons recorded in writing. It tied that threshold to considerations of national security, public interest and sovereignty, but found that the prosecution had placed no material on record to establish prima facie that the entry was unauthorised or illegal.
From a Keelakarai FIR to the Supreme Court
FIR No. 46/2018 was registered on April 2, 2018 at Police Station Keelakarai in Tamil Nadu under Sections 153A and 120B of the Indian Penal Code, Sections 15, 17, 18, 19 and 20 of the UAP Act and Section 25(1)(a) of the Arms Act. On July 5, 2018 the Principal District and Sessions Judge, Ramanathapuram granted the respondent default bail under Section 167(2) of the Code of Criminal Procedure because no chargesheet had been filed within the statutory period. The National Investigation Agency took over the case in January 2019 and filed its chargesheet against ten accused on January 23, 2021.
The prosecution alleges that the respondent is a Sri Lankan national who entered India in 2009, overstayed his visa and obtained Indian identity documents, and a separate FIR (No. 188 of 2019) was registered on that basis in November 2019. These allegations are untested, and the Court has expressed no view on the merits of the trial. In April 2022 the Union sought cancellation of bail on the ground that his nationality had been suppressed. The Special Court under the NIA Act, Chennai cancelled bail on July 5, 2022 relying on Section 43D(7), and the Madras High Court set that order aside on December 12, 2023, leading to the Union’s appeal.
Default bail, and a late request to cancel it
The Court held that Section 43D(7) does not override Section 43D(2), so the default bail granted under Section 167(2) of the CrPC stood as a matter of right, and that an allegation of suppressed nationality could not by itself justify cancelling it. It found no adequate explanation for the delay between the chargesheet and the application for cancellation filed on April 29, 2022, and distinguished an appeal against the grant of bail, which tests legality at the time of grant, from a cancellation application, which looks to supervening circumstances or post-bail conduct.
It also held that an extrajudicial confession to a Village Administrative Officer is not barred by Section 25 of the Evidence Act and has prima facie veracity, but left its probative value to the trial court.
The dismissal
present appeal is devoid of merit and hence stands dismissed.
The Madras High Court order of December 12, 2023 setting aside the cancellation of bail stands affirmed. The respondent remains presumed innocent, and the charges remain to be tried.
What the judgment changes
The special bar for non-citizens under the UAPA is not triggered by nationality or a later overstay, and the burden of showing illegal entry rests on the prosecution before the heightened test applies. The ruling also reaffirms that default bail granted for a missed chargesheet deadline cannot be cancelled on a bare allegation of suppression made after a long delay.
Case Title: Union of India v. Mohamed Rifas @ Mohamed Rigbas [Criminal Appeal arising out of SLP (Crl.) No. 7177 of 2024]
Bench: Justice Aravind Kumar and Justice Vipul M. Pancholi, Supreme Court of India
Date of Judgment: October 27, 2026
Appearances: Additional Solicitor General Aishwarya Bhati for the Union of India; Advocate A. Velan for the respondent.