Srinagar, Sept 3, KDC: The High Court of Delhi has granted bail to two Kashmiri residents, Sobiya Aziz and Kamran Ashraf Reshi, in the 2021 Jammu and Kashmir terrorism conspiracy case probed by the National Investigation Agency (NIA), holding that pre-trial incarceration of nearly five years cannot be permitted to assume the character of punishment when only 21 out of 359 prosecution witnesses have been examined.
Setting aside the orders of the Special NIA Court at Patiala House, a Division Bench comprising Justice Navin Chawla and Justice Ravinder Dudeja ruled that the constitutional guarantee of speedy trial under Article 21 of the Constitution survives statutory restrictions on bail under Section 43D(5) of the Unlawful Activities (Prevention) Act (UAPA) where the trial is not likely to conclude within a reasonable period.
The appellants had challenged the rejection of their bail pleas in connection with RC No. 29/2021/NIA/DLI registered at Police Station NIA, New Delhi, under Sections 120B, 121A, 122, and 123 of the Indian Penal Code (IPC), along with Sections 18, 18A, 18B, 20, 38, and 39 of the UAPA. The case pertains to an alleged larger conspiracy orchestrated by proscribed outfits, including Lashkar-e-Taiba, Jaish-e-Mohammed, Hizb-ul-Mujahideen, and their affiliates, to execute violent acts in Jammu and Kashmir and other parts of India.
According to the NIA chargesheet, Sobiya Aziz, who was arrested on October 22, 2021, was accused of associating with co-accused Bilal Ahmed Mir to provide logistical support to active cadres, harboring militants, and possessing handwritten diaries containing radical content along with a flag.
Kamran Ashraf Reshi, a resident of Hazratbal arrested on October 20, 2021, at the age of 21, was accused of being linked to online propaganda channels, possessing threatening posters of militant offshoots, and attending radicalization sessions.
Counsels appearing for the appellants argued that both accused had suffered prolonged incarceration for nearly five years without their roles involving any violent operational acts. It was submitted that Sobiya Aziz had already been discharged of offences under Sections 20, 38, and 39 of the UAPA by the trial court in August 2024, is suffering from multiple medical ailments, and is entitled to statutory consideration as a woman.
For Reshi, it was argued that the evidence was predominantly digital and circumstantial, and that several other co-accused had already been admitted to bail by the trial court, the High Court, and the Supreme Court.
Opposing the appeals, Special Public Prosecutor Amit Tiwari, representing the NIA, argued that both appellants were part of a deep-rooted conspiracy to wage war against the country, that charges had already been formally framed, and that allegations of threats to prosecution witnesses warranted rejection of bail under the statutory bar of Section 43D(5) of the UAPA.
Evaluating the submissions, the Bench held that the prolonged custody coupled with the massive scale of pending witness examination tipped the balance in favor of granting bail.
“It remains undisputed that the appellant Sobiya Aziz has been in custody since 22.10.2021 and has, therefore, already suffered incarceration for almost 5 years. Presently, only 21 witnesses have been examined, out of total cited 359 witnesses. Therefore, there is no chance of the trial concluding anytime soon,” the Bench observed.
Highlighting the constitutional balance between individual liberty and statutory restrictions, the Court referred extensively to Supreme Court judgments in Union of India v. K.A. Najeeb, Gulfisha Fatima v. State, and Syed Iftikhar Andrabi v. NIA, noting that statutory embargos must yield when pre-trial detention becomes unreasonable.
“Article 21 occupies a central place in the constitutional scheme. The right to life and personal liberty, and the insistence that any deprivation must conform to procedure established by law, are foundational guarantees. The right to a speedy trial has been recognised as an important facet of this guarantee. It follows that pre-trial incarceration cannot, by the mere passage of time, be permitted to assume the character of punishment,” the Court recorded, citing the apex court’s ruling.
The Bench observed that Sobiya Aziz had made out an arguable case for bail considering her long custody, gender, medical condition, and parity with other co-accused who were earlier enlarged on bail. Similarly, regarding Kamran Ashraf Reshi, the Court held that the long period of detention juxtaposed against the material alleged against him justified his release on bail.
The High Court directed that both appellants be released on bail subject to furnishing a personal bond of Rs 2,00,000 each with two sureties of the like amount to the satisfaction of the trial court. The court imposed stringent conditions, directing them to surrender their passports, not leave the country without prior permission, use only one mobile phone kept switched on at all times, refrain from contacting or intimidating witnesses, and report to the Investigating Officer once every fortnight.
The Bench also restrained the appellants from making public statements regarding the case in media or social media and directed them not to join any social media groups where anti-national material is uploaded or circulated.
Advocates Kartik Murukutla and Abu Bakr Sabbaq appeared for Kamran Ashraf Reshi, while Advocates Kartik Venu, Arjan Ajai Singh Chonker, R. Jude Rohit, Agrim Tandon, and Alisha Sharda represented Sobiya Aziz. Special Public Prosecutor Amit Tiwari appeared for the NIA. (KDC)
