A Bench of Justices B V Nagarathna and Ujjal Bhuyan made the remarks while granting bail to Syed Iftikhar Andrabi, a resident of Kupwara who has remained incarcerated since June 2020 in a National Investigation Agency (NIA)-led narco-terror probe.

In a strongly worded judgment, the court expressed doubts over the reasoning adopted in Gulfisha Fatima v State, the decision linked to the denial of bail to Delhi riots accused, including Umar Khalid and Sharjeel Imam.

“We have serious reservations about the judgment in Gulfisha Fatima. The judgment in Gulfisha Fatima would have us believe that Najeeb (a judgment which says an accused cannot be indefinitely jailed) is only a narrow and exceptional departure from Section 43D(5), justified in extreme factual situations. It is this hollowing out of the import of the observations in Najeeb that we are concerned with. The broad reading of Najeeb suggests that the mere passage of time, if it arises from all surrounding circumstances, mechanically entitles an accused to release,” the court said.

The Bench stressed that constitutional guarantees under Articles 21 and 22 (right to freedom) cannot be eclipsed merely because proceedings arise under anti-terror legislation. “The statutory embargo of Section 43D(5) of the UAPA must remain a circumscribed restriction that operates subject to the guarantee of Articles 21 and 22 of the Constitution. Therefore, we have no manner of doubt in stating that even under the UAPA, bail is the rule and jail is the exception. Of course, in an appropriate case, bail can be denied having regard to the facts of that particular case,” the court held.

Reiterating the binding nature of the SC’s earlier three-judge Bench ruling, the Bench said subordinate courts as well as smaller Benches of the apex court could not dilute its ratio. “In that spirit, we make it clear that Najeeb is binding law and entitled to the protection of judicial discipline. It cannot be diluted, circumvented, or disregarded by trial courts, high courts (HCs), or even by Benches of lower strength of this court,” the court observed.

The judges warned against a judicial trend where smaller Benches undermine larger Bench precedents without formally disagreeing with them. “More particularly, the issue concerns the propriety of smaller benches progressively hollowing out the constitutional force of a larger Bench decision without ever expressly disagreeing with it,” the court said.

Underscoring the hierarchy of precedent, the Bench added: “A smaller Bench cannot dilute, circumvent, or disregard the ratio of a larger Bench. If a smaller Bench cannot agree with a larger Bench, it can only refer the case to the Chief Justice of India for allocation to a larger Bench.”

The court specifically noted that certain two-judge Bench rulings, including the Umar Khalid bail judgment in Gulfisha Fatima v State, had departed from the principles laid down in Najeeb. “Judicial discipline and certainty demand that Benches of smaller strength are mindful of the decisions rendered by larger Benches and are bound to follow the same,” it added.

Rejecting the proposition that prolonged incarceration in UAPA cases may not justify bail, the Bench said constitutional protections apply irrespective of the gravity of allegations. “Ideally, the more serious the accusations are, the speedier the trial should be,” the court remarked.

The case before the court concerned Syed Iftikhar Andrabi, who was arrested by the NIA on June 11, 2020.

Investigators alleged that he was linked to a cross-border heroin trafficking network that channelled proceeds to terror organisations such as Lashkar-e-Taiba and Hizbul Mujahideen.

He faces charges under provisions of the Narcotic Drugs and Psychotropic Substances Act, the UAPA, and Section 120-B of the Indian Penald Code (now Bharatiya Nyaya Sanhita) before a Special NIA Court in Jammu.

His bail plea had earlier been rejected by both the Special NIA Court and the Jammu & Kashmir and Ladakh HC. The HC had acknowledged that Andrabi had spent nearly five years in custody, but held that the seriousness of the allegations and the preliminary stage of the trial weighed against his release.

Disagreeing with that approach, the SC held that reliance on earlier rulings such as Watali could not justify indefinite incarceration. “The position of law emerging from Najeeb and Sheikh Javed Iqbal is therefore clear. Watali cannot be invoked to justify indefinite incarceration of the accused under the UAPA,” the court said.

“A plain reading of Najeeb will show that it was trying to prevent precisely this possibility from arising when it cautioned that Section 43D(5) must not become the sole metric for denial of bail, causing wholesale breach of the constitutional right to a speedy trial,” it added.

The Bench also referred to National Crime Records Bureau (NCRB) statistics to highlight low conviction rates in UAPA prosecutions, particularly in Jammu & Kashmir. “We have quoted statistics from the NCRB. For the five years from 2019 to 2023, the all-India figures show that the rate of conviction minimum is 1.5 per cent and the maximum is 4 per cent, whereas in the case of Jammu & Kashmir, the rate of conviction in 2019 was zero, and the maximum was 0.89 per cent in 2022,” the Bench said.

The court also observed that the all-India conviction rate ranged between 2 per cent and 6 per cent, which in turn meant there was a 94-98 per cent possibility of acquittal in such cases across the country. “So far as the Union Territory of Jammu & Kashmir is concerned, the annual rate of conviction is always less than 1 per cent. It means that at the end of the trial, there is a 99 per cent possibility of acquittal in such cases,” the court observed.

The court ultimately directed Andrabi’s release on bail, subject to conditions including regular appearance before authorities, cooperation with the investigation, and surrender of his passport.