Delhi High Court
Mohd.Saquib Ansari vs State Nct Of Delhi on 24 April, 2026
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
$~ J1 & J2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 25th March, 2026
Pronounced on: 24th April, 2026
Uploaded On: 24th April, 2026
+ CRL.A. 95/2025
MOHD.SAQUIB ANSARI .....Appellant
Through: Ms. Deeksha Dwivedi, Adv.
versus
STATE NCT OF DELHI .....Respondent
Through: Mr. Ritesh Kumar Bahri, APP with
Ms. Divya Yadav, Adv.
AND
+ CRL.A. 252/2025
WAQAR AZHAR .....Appellant
Through: Ms. Deeksha Dwivedi, Adv.
versus
STATE NCT OF DELHI .....Respondent
Through: Mr. Ritesh Kumar Bahri, APP with
Ms. Divya Yadav, Adv.
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE MADHU JAIN
JUDGMENT
Prathiba M. Singh, J.
1. This hearing has been done through hybrid mode
2. The present appeals have been filed by the Appellants- Mohd. Saquib
Ansari and Waqar Azhar under Section 21 of the National Investigation Act,
2008 assailing the following orders:
● In CRL.A. 95/2025, order dated 10th January, 2025 passed by ld.
Additional Sessions Judge-02, New Delhi District, New Delhi in IA
No. 04/2024 in Sessions Case No. 8808/2016.
● In CRL.A. 252/2025, order dated 29th January, 2025 passed by ld.
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Additional Sessions Judge-02, New Delhi District, New Delhi in IA
No. 06/2025 in Sessions Case No. 8808/2016.
3. Vide the impugned orders, the applications filed by the Appellants
seeking bail have been rejected by the Trial Court.
4. The Appellants are accused persons in FIR No.54/2011 dated 22nd
November, 2011 registered at PS. Special Cell, Delhi Police. The details of
the Appellants are as under:
In CRL.A. 252/2025
Name of the Appellant Mohd. Waqar Azhar @ Haneef
Occupation Pursuing B. Tech (Mechanical)
/Qualification
Details of FIR FIR No.54/2011 registered at PS.
Special Cell, Delhi Police under
Sections 17/18/18A/18B/19/20 of the
Unlawful Activities Prevention Act,
1967, Sections 3/4/5 Explosive
Substance Act, 1908 Sections
201/468/471/474/489B/489C/120B of
the Indian Penal Code, 1860, Section
12 of the Passport Act, 1967 and
Section 25 of the Arms Act, 1959.
Date of Arrest 23rd March, 2014
In CRL.A. 95/2025
Name of the Appellant Mohd. Saquib Ansari @ Khalid
Occupation Book designing job at Rajasthan
/Qualification
Details of FIR FIR No.54/2011 registered at PS.
Special Cell, Delhi Police underSignature Not Verified CRL.A. 95/2025 & CRL.A. 252/2025 Page 2 of 46
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Sections 17/18/18A/18B/19/20 of
the Unlawful Activities Prevention
Act, 1967, Sections 3/4/5 Explosive
Substance Act, 1908 Sections
201/468/471/474/489B/489C/120
B of the Indian Penal Code, 1860,
Section 12 of the Passport Act,
1967 and Section 25 of the Arms
Act, 1959.
Date of Arrest 23rd March, 2014
Background
5. Initiation of this case was when one, Mohd. Quateel Siddiqui @ Sajan
@ Siraj @ Vivek Mishra (since expired), who was a member of Indian
Mujahideen, was apprehended on 21st November, 2011 near Anand Vihar
Inter-State Bus Terminal in Delhi. During his interrogation, he had disclosed
the names of various other persons, who were stated to be members of the
Indian Mujahideen, which is a banned terrorist outfit. The said outfit was
involved in several terrorist incidents including the German Bakery Blast in
Pune in 2010, Chinnaswami Stadium blast in Bengaluru in 2010 and the Jama
Masjid attacks in Delhi in 2010.
6. After registration of FIR No.54/2011 at PS. Special Cell, Delhi Police,
on the basis of disclosures made and information received, several other
individuals were also arrested and large quantity of explosives including
chemicals, arms, ammunitions, etc. were seized by Special Cell, Delhi Police.
7. A total of 18 persons including one Yasin Bhatkal@ Ahmad
Siddibappa @ Imran @Asif @ Shahrukh @Ahmad was also arrested and
charge-sheeted. FIR Nos. 65/2010 and 66/2010 were also registered at PS.
Jama Masjid in respect of the Jama Masjid terrorist attacks. These individualsSignature Not Verified CRL.A. 95/2025 & CRL.A. 252/2025 Page 3 of 46
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were also arrested in the said cases. Non-Bailable Warrants were also issued
against various other persons, who were absconding.
Allegations qua the Appellants in Supplementary Chargesheet (IV)
8. During the course of investigation, one Zia-Ur-Rehman @ Waqas, a
Pakistani national, against whom warrants were issued, was arrested from
Ajmer Railway Station, Rajasthan on 22nd March, 2014 when he arrived from
Bandra, Mumbai. He had disclosed, upon his arrest, that he was on his way
to Jaipur on the directions of Tehsin Akhtar @ Monu, the operational
commander of Indian Mujahideen in India and Riyaz Bhatkal, the Chief
Commander of Indian Mujahideen, who was stated to have been operating
from Pakistan. Zia-Ur-Rehman @ Waqas then disclosed the names of certain
members of Indian Mujahideen as:
• Mohd. Maroof with code name Ibrahim from Jaipur,
• Waqar i.e., Appellant in CRL.A. 252/2025 with code name Haneef
from Jaipur and
• Saquib i.e., Appellant in CRL.A. 95/2025 with code name Khalid from
Jodhpur, Rajasthan.
9. The said Zia-Ur-Rehman @ Waqas disclosed that terrorist attacks had
been planned in Delhi and they had imparted training to this new module
consisting of Mohd. Maroof, Waqar and Saquib. In view of this disclosure, a
team was constituted and sent to Jaipur and Jodhpur, which led to the arrest
of the Appellants. The team, which was dispatched to Jaipur, had apprehended
Mohd. Maroof on 23rd March, 2014. The recovery on arrest from Mohd.
Maroof is as under:
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10. Mohd. Maroof had led the police team to Waqar Azhar’s house and the
following material was recovered from Waqar Azhar upon his arrest on 23 rd
March, 2014:
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11. In respect of the explosives which were recovered, FIR No.03/2014
was registered at PS. S.O.G, Jaipur.
12. The arrest of Saquib Ansari was made from Jodhpur on 23 rd March,
2014. At the time of his arrest, the following explosive material and electronic
gadgets were recovered from his possession:
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13. In view of the seizure from Saquib Ansari, a separate FIR was
registered in Jodhpur being FIR No.113/2014 registered at PS. Pratap Nagar.
After the arrest, both the Appellants disclosed that they were members of
Indian Mujahideen and were in contact with Riyaz Bhatkal, Waqas and
Tehsin Akhtar. They had also disclosed that they were planning a terrorist
attack in Delhi on the directions of Riyaz Bhatkal.
14. As per the charge-sheet filed by the Special Cell, Delhi Police, a large
quantum of material related to terrorist organizations and Anti-India material,
etc. was also discovered in their electronic devices. Further arrests were made
on the basis of disclosures made by the Appellants.
15. The Appellants and their associates had various code names and email
addresses, which were being used. Ordinary words like CD, DVD and CV
were used for pistol, rifle and explosives respectively. As per the
investigation, the Appellants were operating the Rajasthan module of the
Indian Mujahideen. Encrypted chats which are stated to have been recovered
from the Appellants, show that Saquib Ansari had connection with Riyaz
Bhatkal. The Appellants had also planned terrorist attacks in Bharatpur,
Rajasthan and were also involved in the Sikar and Jodhpur modules of Indian
Mujahideen.
16. A pen drive recovered from Waqar Azhar also revealed a substantial
quantity of jihadi material. The social media accounts of both the Appellants
were also analysed by the investigating agencies, which showed various
documents relating to the Caliphate and material relating to the Hon’ble Prime
Minister of India, the Chief of Rashtriya Swayamsevak Sangh and multimedia
files of jihadi speeches. Similar was the situation in the electronic devices
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recovered from Saquib Ansari, which contained motivational jihadi videos.
17. The investigation in FIR No.54/2011 registered by PS. Special Cell,
Delhi Police led the investigating agency to Delhi, Rajasthan, Karnataka,
Uttar Pradesh, etc. It was also found that certain sim cards were purchased
using false identification by the Appellants and other members of the Indian
Mujahideen. Through this network and the sim cards which were purchased,
the Appellants were in touch with Riyaz Bhatkal. They had also established
contact with Zahida, wife of Yasin Bhatkal. The owner of the shop who had
sold the sim cards to Saquib Ansari had identified him during the
investigation. The rented accommodation, which was used by several of the
accused persons including Waqas and Tehsin Akhtar @ Monu at Rajiv
Gandhi Colony, Jodhpur, was pointed out by all the accused persons. The
same was arranged by Saquib Ansari and the owner of the said
accommodation had identified the five accused persons including the
Appellant- Saquib Ansari.
18. Fake election ID cards were also recovered from the Appellant-Waqar
Azhar. The analysis of the mobile phones, internet dongles and data cards,
which were used by Saquib Ansari revealed that he was using these data cards,
etc., to access the internet and speak to members of the Indian Mujahideen in
Pakistan through an app namely, Nimbuzz Chat. The Nimbuzz ID used by
Saquib Ansari was ‘duskam002’ to contact one Atta using the Nimbuzz ID
‘junmik’.
19. Even the attendance records from the Engineering College from Jaipur
where Waqar Azhar was doing B.Tech (CS), showed that he was not regularly
attending classes and in the year 2014 he had not attended classes even a
single day.
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Signing Date:24.04.2026
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20. As per the chargesheet, one of the serious allegations against Waqar
Azhar was that he had also made efforts to make poison with the help of
chemicals such as magnesium sulphate, acetone and castor seeds. The
intention was to send letters soaked with poison to targets.
21. On the basis of these allegations, the Appellants were charge-sheeted.
Charges were farmed qua the Appellants vide order on charge dated 3rd
August, 2017 in the following terms:
“(e). Accused Waqar Azhar being member of
Indian Mujahidin conspired terrorist act in Delhi.
He organized training camps in Jaipur and
Jodhpur. He harbor wanted terrorist Tehsin
Akhtar and Zia-ur-Rehman @ Waqas by providing
them shelter in Jaipur and Jodhpur. He possessed
and used fake IDs. Let the charge for the offences
u/s 18/18A/19/20 UA (P) Act & 468/471/474 IPC
be framed against him.
(f). Accused Saquib Ansari being member of
Indian Mujahidin conspired terrorist act in Delhi.
He organized training camps in Jaipur and
Jodhpur. He harbor wanted terrorist Tehsin
Akhtar and Zia-ur-Rehman @ Waqas by providing
them shelter in Jaipur and Jodhpur. Let charge for
offences u/s 18/18A/19/20 UA (P) Act be against
accused him”
22. The trial in FIR No.54/2011 is presently underway.
Status in FIR No.03/2014 registered at PS. S.O.G., Jaipur
23. In FIR No.03/2014 registered at PS. S.O.G., Jaipur, the final judgment
of the Trial Court in Jaipur in Sessions Case No. 83 of 2015 has been rendered
on 30th March, 2021 convicting the Appellants in the following terms:
” 364.): Accused persons Waqar Azhar, Mohammed
Saqib Ansari, Barkat Ali, Mohammed Maroof andSignature Not Verified CRL.A. 95/2025 & CRL.A. 252/2025 Page 9 of 46
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Ashraf Ali are convicted for the charges of the
offences levelled under Sections 4, 5 and 6 of the
Explosive Substances Act, 1908; Sections 16, 17, 18,
18-A, 18-B, 19, 20 and 23 of the Unlawful Activities
(Prevention) Act, 1967 and Sections 121, 121A, 122,
465, 468 & 471 of the Indian Penal Code.”
24. The sentence awarded to the Appellants vide the judgment of the Trial
Court in Jaipur in Sessions Case No. 83 of 2015, is as under :
“370.): The accused persons, (1.): Waqar Azhar s/o
Mohammed Tasleem, aged 27 years, r/o 20 Purana
Choodigaron-ka-Mohalla, Pali, Rajasthan; (2):
Mohammed Saqib Ansari s/o Mohammed Ashlam
Ansari, aged 29 years, r/o A-45, Barkatuillah-Khan-
Colony, Police Station, Pratap Nagar, Jodhpur
(Rajasthan); (3): Barkat Ali s/o Liyakat Ali, aged 33
years, r/o House No. 08, Haji Street, Shantipriya
Nagar, Chheerghar, Police Station, Pratap Nagar,
Jodhpur (Rajasthan); (4): Mohammed Maroof s/o
Mohammed Farooq Engineer, aged 28 years r/o D-
105, Sanjay Nagar, Joshi Marg, Police Station,
Jhontwara, Jaipur (Rajasthan) and (5): Ashraf Ali
Khan s/o Sabir Ali, aged 47 years, r/o House No. 653,
Laikan Mohalla, Opposite to Masjid, Jodhpur
(Rajasthan) are punished in the following manner for
the offences for which they have been convicted:-
NOTE: (Details of punishment awarded to all of the
abovementioned accused persons follow with Section
and the Act for which convicted in continuous order
hereunder).
i.): Rigorous imprisonment for the term of ten years
and a fine of Rupees Fifty Thousand, and in case of
non-remittance of the fine amount, shall further
undergo rigorous imprisonment for the term of one
year, for the offence punishable under Section 4 of the
Explosive Substances Act, 1908.).
ii.): Rigorous imprisonment for the term of ten years
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and a fine of Rupees Fifty Thousand, and in case of
non-remittance of the fine amount, shall further
undergo rigorous imprisonment for the term of one
year, for the offence punishable under Section 5 of the
Explosive Substances Act, 1908.).
iii.): Rigorous imprisonment for the term of ten years
and a fine of Rupees Fifty Thousand, and in case of
non-remittance of the fine amount, shall further
undergo rigorous imprisonment for the term of one
year, for the offence punishable under Section 6 of the
Explosive Substances Act, 1908.).
iv.): Rigorous imprisonment for the term of ten years
and a fine of Rupees Fifty Thousand, and in case of
non-remittance of the fine amount, shall further
undergo rigorous imprisonment for the term of one
year, for the offence punishable under Section 16 of
the Unlawful Activities (Prevention) Act, 1967.
v.): Rigorous imprisonment for the term of ten years
and a fine of Rupees Fifty Thousand, and in case of
non-remittance of the fine amount, shall further
undergo rigorous imprisonment for the term of one
year, for the offence punishable under Section 17 of
the Unlawful Activities (Prevention) Act, 1967.
vi.): Rigorous imprisonment for the term of ten years
and a fine of Rupees Fifty Thousand, and in case of
non-remittance of the fine amount, shall further
undergo rigorous imprisonment for the term of one
year, for the offence punishable under Section 18 of
the Unlawful Activities (Prevention) Act, 1967.
vii.): Rigorous imprisonment for the term of ten years
and a fine of Rupees Fifty Thousand, and in case of
non-remittance of the fine amount, shall further
undergo rigorous imprisonment for the term of one
year, for the offence punishable under Section 18A of
the Unlawful Activities (Prevention) Act, 1967.
viii.): Rigorous imprisonment for the term of ten years
and a fine of Rupees Fifty Thousand, and in case of
non-remittance of the fine amount, shall furtherSignature Not Verified CRL.A. 95/2025 & CRL.A. 252/2025 Page 11 of 46
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undergo rigorous imprisonment for the term of one
year, for the offence punishable under Section 18B of
the Unlawful Activities (Prevention) Act, 1967.
ix.): Rigorous imprisonment for the term of ten years
and a fine of Rupees Fifty Thousand, and in case of
non-remittance of the fine amount, shall further
undergo rigorous imprisonment for the term of one
year, for the offence punishable under Section 19 of
the Unlawful Activities (Prevention) Act, 1967.
x.): Rigorous imprisonment for the term of ten years
and a fine of Rupees Fifty Thousand, and in case of
non-remittance of the fine amount, shall further
undergo rigorous imprisonment for the term of one
year, for the offence punishable under Section 20 of
the Unlawful Activities (Prevention) Act, 1967.
xi.): Rigorous imprisonment for the term of ten years
and a fine of Rupees Fifty Thousand, and in case of
non-remittance of the fine amount, shall further
undergo rigorous imprisonment for the term of one
year, for the offence punishable under Section 23 of
the Unlawful Activities (Prevention) Act, 1967.
xii.): Life term imprisonment and the fine amounting
to Rupees One Lakh and in case of non-remittance of
the fine amount, shall further undergo rigorous
imprisonment for the term of two years for the offence
punishable under Section 121 of the Indian Penal
Code.
xiii.): Rigorous imprisonment for the term of ten years
and a fine of Rupees Fifty Thousand, and in case of
non-remittance of the fine-amount, shall further
undergo rigorous imprisonment for the term of one
year, for the offence punishable under Section 121-A
of the Indian Penal Code.
xiv.): Rigorous imprisonment for the term of ten years
and a fine of Rupees Fifty Thousand, and in case of
non-remittance of the fine-amount, shall further
undergo rigorous imprisonment for the term of one
year, for the offence punishable under Section 122 ofSignature Not Verified CRL.A. 95/2025 & CRL.A. 252/2025 Page 12 of 46
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the Indian Penal Code.
xv.): One year’s rigorous imprisonment for the offence
punishable under Section 465 of the Indian Penal
Code.
xvi.): Rigorous imprisonment for the term of five years
and fine of Rupees Twenty Five Thousand, and in case
of non-remittance of the fine-amount, shall further
undergo rigorous imprisonment for the term of six
months, for the offence punishable under Section 468
of the Indian Penal Code.
xvii.): One year’s rigorous imprisonment for the
offence punishable under Section 471 of the Indian
Penal Code.
xxxx xxxx xxxx
372.): All the original punishments awarded to all the
convicted and punished accused persons shall run
concurrently, and the period of imprisonment suffered
by them during police & judicial custody will be
adjusted in the original punishment”
25. The Appellant- Saquib Ansari has preferred an appeal assailing the
judgment passed by Trial Court in Jaipur being D.B. Criminal Appeal
No.103/2021 titled Sakib Ansari Son Of Mohammad Aslam Ansari, Aged
About 32 Years, Resident Of A-45, Barkatullah Khan Colony, Thana
Pratapnagar, Jodhpur, Rajasthan (Applicant Is Confined In Central Jail,
Jodhpur) v. State Of Rajasthan, Through Its Public Prosecutor. In the said
appeal, the Appellant filed D.B. Criminal Misc Suspension Of Sentence
Application (Appeal) No. 1489/2023 seeking suspension of sentence during
the pendency of the appeal. Vide order dated 6th September, 2024 passed by
the High Court of Rajasthan, the sentence of the Appellant-Saquib Ansari has
been suspended. The Court has not been informed if an appeal has been filed
by Appellant- Waqar Azhar. It appears that he has however, not challenged
the conviction.
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Status in FIR No.113/2014 registered at PS. Pratap Nagar, Jodhpur
26. The FIR No.113/2014 is registered at PS. Pratap Nagar, Jodhpur for
the offences under Sections 4/5/6 of the Explosive Substances Act, 1908,
Sections 16/17/18/18A/18B/19/20/23/38 of the Unlawful Activities
(Prevention) Act, 1967 and Sections 120B/121/121A/122/212/465/468/471
of the Indian Penal Code, 1860. In this case, the High Court of Rajasthan has
granted bail to both the Appellants vide the following orders:
● Bail granted to Saquib Ansari vide order dated 7th November, 2024 in
S.B. Criminal Miscellaneous Bail Application No. 5646/2024 titled
Mohd. Shakib Ansari S/o Mohd. Aslam Ansari, Aged About 34 Years,
R/o A-45, Barkatullah Colony, P.s. Pratapnagar, Jodhpur (Presently
Lodged In Central Jail, Jodhpur) v. State Of Rajasthan, Through Pp.
● Bail granted to Waqar Azhar vide order dated 10th January, 2025 in S.B.
Criminal Miscellaneous Bail Application No. 14838/2024 titled
Mohammed Wagar Azhar @ Hanif @ Mohsin S/o Mohammad
Taslim, Aged About 32 Years, R/o H. No.20, Purana Chudighar
Mohalla, Dist Pali Raj. (At Present Lodged In Central Jail Jodhpur)
v. State Of Rajasthan, Through Pp.
27. In the orders passed by the High Court of Rajasthan in FIR No.03/2014
registered at PS. S.O.G., Jaipur and FIR No.113/2014 registered at PS. Pratap
Nagar, Jodhpur, the High Court has either suspended sentence or granted bail
on the ground that the Appellants have served for more than 9/10 years in
incarceration. There is, however, no discussion on merits in any of these
orders.
Impugned orders dated 10th January, 2025 and 29th January, 2025
28. In the impugned orders dated 10th January, 2025 and 29th January, 2025,
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the Trial Court has relied upon the judgment of the Supreme Court in
Gurwinder Singh v. State of Punjab & Anr., (2024) 5 SCC 403 and the
stringent conditions that are required to be satisfied under Section 43D(5) of
the Unlawful Activities (Prevention) Act 1967 (hereinafter, ‘UAPA’).
29. After going through the seizure that has been made in the cases
registered in Delhi, Jaipur and Jodhpur, the Trial Court came to the conclusion
that case for bail is not made out by the Appellants. The Trial Court also
distinguishes the case of Mohd. Maroof with Waqar Azhar. It further holds
that mere delay in trial cannot be a ground for bail in these cases.
Submissions on behalf of the Appellants
30. Ms. Deeksha, ld. Counsel appearing for the Appellants submits at the
outset that a total of 25 people were made as accused persons in the present
FIR being FIR No. 54/2011 registered at P.S. Special Cell, Delhi Police. Out
of the said 25 accused persons, 11 had already pleaded guilty and one has
expired. Accordingly, only 13 persons remain, who are facing the trial.
31. The primary contention on behalf of the Appellants is that this Court
has already granted bail to a co-accused i.e., Mohd. Maroof, who is almost
identically placed as the Appellants. Reliance is placed upon the order dated
15th January 2025 in CRL. A. 560/2024 titled Mohd Maroof v. State (NCT of
Delhi) by which Mohd. Maroof was granted bail by this Court.
32. Ld. Counsel for the Appellants has pointed out various factors that
would establish that the Appellants are similarly placed to Mohd. Maroof. The
said factors pointed out by the ld. Counsel are as under:
i) That the recovery of the explosives was at the behest of Mohd
Maroof from Saquib Ansari and Waqar Azhar i.e., the Appellants, in
the FIRs registered in Jaipur and Jodhpur respectively. Therefore,Signature Not Verified CRL.A. 95/2025 & CRL.A. 252/2025 Page 15 of 46
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Mohd. Maroof was fully aware of and was a co-conspirator;
ii) The charges framed against Mohd. Maroof are under identical
provisions as that of the Appellants;
iii) The High Court of Rajasthan has granted suspension of
sentence/bail in both the cases i.e., Jaipur and Jodhpur despite all three
of them i.e., the Appellants and Mohd Maroof having been convicted
by the Trial Court in FIR No. 03/2014 registered at P.S. S.O.G, Jaipur;
and
iv) Insofar as the recovery of explosives are concerned, it is her
submission that in the FIR No. 54/2011 registered in Delhi, charges are
not under Section 16 of the Explosives Act, 1884 but are merely under
Sections 18, 18A, 19 and 20 of the UAPA
33. Ld. Counsel for the Appellants further submits that the recovery of
explosives is not the subject matter of FIR No. 54/2011 registered at P.S.
Special Cell, Delhi Police as there is no seizure of explosives by the Delhi
Police. The Delhi Police, therefore, cannot rely on the recovery explosives as
a ground to press charges in the said FIR. Ld. Counsel further submits that the
orders passed by the High Court of Rajasthan on 6th September, 2024 and 7th
November, 2024 would clearly show that the said two orders have considered
the period of incarceration of the Appellants and similar persons having been
granted bail or suspension of sentence. Accordingly, the said reasoning ought
to follow even in these cases.
34. Ld. Counsel for the Appellants places reliance on the recent order of
the Supreme Court dated 6th January, 2026 in a batch of three matters wherein
the lead matter is Petition for Special Leave to Appeal (Crl.) No. 1422/2025
titled Mahesh Khatri @ Bholi v. State NCT of Delhi where one of the
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Appellants has been granted bail though charges under Maharashtra Control
of Organised Crime Act, 1999 (MACOCA) and UAPA have been framed
against him.
35. Further, the contention on behalf of the Appellants is that the FIR
registered by the Delhi Police is for a less grave offence than the one
registered in Jaipur and Jodhpur. Insofar as the conviction itself is concerned,
it is submitted by the ld. Counsel that despite life imprisonment having been
awarded under Section 121 of the Indian Penal Code, 1860 (hereinafter,
‘IPC‘) in FIR No. 03/2014 registered at PS. S.O.G, Jaipur, the High Court of
Rajasthan has suspended the sentence of the Appellant-Saquib Ansari. Ld.
Counsel for the Appellants submits that the said Section 121 of the IPC is for
a much graver offence of waging a war against the Government or the State.
Under these circumstances, she submits that the Appellants cannot be treated
differently than Mohd. Maroof and are deserving of bail.
36. Moreover, ld. Counsel for the Appellants submits that the Appellants
as also Mohd. Maroof have been granted bail by the High Court of Rajasthan
in FIR No. 113/2014 registered at PS. Pratap Nagar, Jodhpur. Insofar as FIR
No. 03/2014 registered at PS. S.O.G, Jaipur is concerned, it is her submission
that all three i.e., the Appellants and Mohd. Maroof have been convicted and
the same evidence as in the present case has been considered by the Trial
Court in Jaipur and therefore, there is also an issue of double jeopardy.
Reliance is placed upon paragraphs 273 and 285 of the judgment of the Trial
Court in Jaipur.
37. According to the ld. Counsel, the role of the Appellants is not different
from Mohd. Maroof, however, it is her submission that the State tries to
distinguish the same by saying that there was recovery of explosives in case
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of the Appellants.
38. Further reliance is placed by the ld. Counsel for the Appellants upon
the following decisions:
● Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari v. State of
Uttar Pradesh, 2024 INSC 534
● Manish Sisodia v. Directorate of Enforcement, 2024 INSC 595Submissions on behalf of the State
39. On the other hand, Mr. Bahri, ld. APP submits that FIR No. 54/2011
registered at PS. Special Cell by the Delhi Police is the parent FIR and the
FIRs registered in Jaipur and Jodhpur were subsequent to the registration of
the said FIR. It was in the course of the investigation in the FIR No. 54/2011
that certain disclosures were made by one of the accused persons which led
to the entire conspiracy of a proposed terrorist attack in Delhi being
unravelled.
40. It is submitted by the ld. APP that FIR No. 54/2011 registered at PS.
Special Cell being the first FIR, and the conviction having already been
ordered by the Trial Court in Jaipur in FIR No. 03/2014, the requisite
elements under Section 43D(5) of the UAPA, i.e., prima facie the case of the
Appellants being guilty, stand duly established.
41. Moreover, it is the submission on behalf of the State that there exists
sufficient case law to support the contention that once charges are framed
under the UAPA, a prima facie case exists indicating the possibility of the
Appellants being convicted.
42. Ld. APP further submits that the judgment on conviction passed by the
Trial Court in Jaipur would show that the Appellants have been convicted
under various provisions of the UAPA and the IPC and have also been
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awarded ajeevan karawas i.e., life imprisonment. It is his submission that
once the requirements under Section 43D(5) of the UAPA are satisfied, bail
ought not to be granted.
43. Ld. APP places reliance upon the decision of the Supreme Court in
Gulfisha Fatima v. State (Govt. of NCT of Delhi), 2026 INSC 2, to argue
that mere delay in trial would not be sufficient to grant bail especially in such
cases. Ld. APP further submits that a perusal of the Trial Court record in the
present case would reveal that it is not the prosecution which has merely
delayed the trial but also the defence who has taken 22 adjournments. Further,
on six occasions, the presiding officer was on leave and on one occasion, there
was a lawyers’ strike. He therefore submits that there is no reason to blame
the prosecution for the delay in trial though prosecution has also taken certain
adjournments. Further, it is the case of ld. APP that 68 witnesses have already
been examined in the present case.
44. Reliance is placed upon the decision in Union of India v. K.A. Najeeb,
(2021) 3 SCC 713 which is referred to by the Trial Court as also upon the
decision in Gurwinder Singh (Supra). Finally, Mr. Bahri, ld. APP for the
State submits that mere delay in the trial would not result in grant of bail as in
the present case, the Appellants have not crossed the stringent conditions laid
under Section 43D(5) of the UAPA.
45. On the strength of these submissions and predominantly on the reading
of the judgment of conviction passed by the Trial Court in Jaipur, Mr. Bahri,
ld. APP submits that neither the sentence of the Appellants deserves to be
suspended nor do the Appellants deserve to be released on bail.
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Analysis and Findings
46. The Court has considered the matter. The primary submissions on
behalf of the Appellants are three-fold:
(i) That a co-accused, Mohd. Maroof has already been granted bail
in the same FIR by this Court.
(ii) That the FIR No. 113/2014 registered at PS. Pratap Nagar,
Jodhpur and FIR No. 03/2014 registered at PS. S.O.G, Jaipur emanates
from the same material as is now relied upon in FIR No. 54/ 2011, PS.
Special Cell, Delhi Police. In FIR No. 113/2014, bail has been granted
to the Appellants and in FIR No. 03/2014, the sentence of Saquib
Ansari has also been suspended.
(iii) That the Appellants have already undergone a long period of
incarceration. The nominal roll of both the Appellants would show that
they have served almost 12 years in custody.
47. The question that arises in the present case is whether the period of
incarceration by itself would be sufficient to grant bail in these circumstances
or not.
48. The first and foremost, aspect that this Court is required to note is that
the Appellants were active members of a banned terrorist organisation i.e.,
Indian Mujahideen. The Appellants are alleged to be in fact the key members,
who were running the Rajasthan Module of this banned terrorist organization.
49. A perusal of the seizure which was made in Jaipur and Jodhpur would
show that the seizure is substantial in nature. The kind of damage that could
have been caused with the amount of material which was seized in the form
of chemicals, electronic material, IED material, arms, detonators, digital
devices, etc., cannot be ignored by the Court.
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50. In the opinion of this Court, no parity can be drawn between the
material seized from Mohd. Maroof, which was only in the form of digital
devices, and the explosive material seized from these two Appellants, as
extracted hereinabove. Thus, they cannot claim parity merely on the ground
that Mohd. Maroof has been granted bail by this Court.
51. The most significant factor in the present case is that both the
Appellants have, in fact, been convicted in the FIR No. 03/2014 registered at
PS. S.O.G, Jaipur under Sections 4, 5 and 6 of the Explosive Substances Act,
1908; Sections 16, 17, 18, 18-A, 18-B, 19, 20 and 23 of the UAPA and
Sections 121, 121A, 122, 465, 468 & 471 of the IPC. The findings of the Trial
Court in Jaipur are relevant and are summarized below:
i) Appellants had taken oath on 30th June, 2012/1st July, 2012 about
becoming members of the Indian Mujahideen.
ii) That huge quantity of explosive materials was seized from both these
Appellants and thereafter, they were arrested. The Appellants used to
incite a number of other members to join the module by showing
clippings, jihadi materials, speeches, videos, etc. There were
discussions about formulating schemes and carrying out bomb
explosions. Three of the accused persons in FIR No. 03/2014 were
pursuing engineering courses.
iii) The Appellants had established contacts through the internet with
various other accused persons who were in touch with the three
terrorists of the Indian Mujahideen present in Pakistan.
iv) That the Appellants used forged identification cards and were
collecting funds for the purposes of Jihad. Both the Appellants were
part of the terrorist module in Rajasthan which had hatched a plan toSignature Not Verified CRL.A. 95/2025 & CRL.A. 252/2025 Page 21 of 46
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accomplish a terrorist incident in Delhi and for this purpose they had
collected a huge quantity of explosives. All the materials seized which
were recorded in the seizure memo were also duly verified.
v) The Appellant-Waqar Azhar, in fact, had knowledge of making bombs
and had imparted the said knowledge and training to other members of
the module as well.
vi) The seizure of the explosive substances from both Appellants is not in
doubt. The places from where the purchase of explosive material
including chemicals and other goods are done have also come in
evidence. The digital watches and the detonators that were used have
all been discussed.
vii) The link between Jaipur and Jodhpur modules of the Indian
Mujahideen have also been analyzed by the Trial Court. The locations
where both the Appellants had met and exchanged electronic devices
and information had also been discussed.
viii) Forged IDs and photographs under the name Rajendra son of Prakash
were used by the Appellants for contacting Riyaz Bhatkal. There was
evidence to the effect about the use of the Pseudonym-Rajender by
Saquib Ansari for buying sim cards, which was also proved before the
Trial Court.
ix) The details of the chats, e-mail addresses, Facebook ids, etc., were also
considered. The e-mail addresses that were used by both the Appellants
to communicate with each other and the individuals in Pakistan have
also been analysed.
x) The report of the Forensic Science Laboratory (FSL) in respect of the
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of the judgment as under:
“285.): Examination report of the forensic science
laboratory Ex. P/497 which has been filed, therein
examination report has been given about the digital
wristwatch, reels, battery, electronic circuit, circuit-
plate, breadboard, L. E. D., transistor, cistern, triode,
transistors, electronic circuit etc., which had been
recovered on 23rd of March, 2014 from the rented
house No. 35/118, Pratap Nagar, Jaipur from the
possession of the accused persons Waqar Azhar and
Ammar Yasar upon the information of the accused
Mohammed Maroof. This report has been sent by the
forensic science laboratory that by joining/linking to
the abovementioned implements in the aforesaid
circuits, the same could be utilized by way of an
explosive instrument, and the silver-coloured powder,
plates, white powder, brown coloured seeds, card-
board-box, container, white-coloured powder etc., are
the chemical items.”
xi) The purchase of the articles from various shops in Jaipur under
concealed names was proved on record. Waqar Azhar had, in fact,
carried out a recce at various places where bombs could be exploded
including Moti Doongari, Birla Mandir, Gaurav Towers, World Trade
Park/Centre at Jaipur and Laxman Mandir, Ganga Mandir, Main
Market, Kothwali in Bharatpur. The bill books of the shops showing
the purchase by the Appellants were also brought in evidence.
xii) The Appellants were also in contact with Ms. Zahida Khanam, wife of
Yasin Bhatkal, who was also a member of the Indian Mujahideen.
52. On the basis of all the evidence placed before the Trial Court in Jaipur,
the Appellants were convicted in the terms extracted above.
53. In the light of these findings by the Trial Court in Jaipur in FIR No.
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03/2014 and the seizure of explosive materials, digital devices and other
materials from the Appellants, the question is whether the conditions under
Section 43D(5) of the UAPA for grant of bail are satisfied or not. The said
provision reads as under:
“43D. Modified application of certain provisions of the
Code.–(1) Notwithstanding anything contained in the
Code or any other law, every offence punishable under
this Act shall be deemed to be a cognizable offence
within the meaning of clause (c) of section 2 of the Code,
and “cognizable case” as defined in that clause shall be
construed accordingly.
xxxx xxxx xxxx
(5) Notwithstanding anything contained in the Code,
no person accused of an offence punishable under
Chapters IV and VI of this Act shall, if in custody, be
released on bail or on his own bond unless the Public
Prosecutor has been given an opportunity of being
heard on the application for such release:
Provided that such accused person shall not be
released on bail or on his own bond if the Court, on a
perusal of the case diary or the report made under
section 173 of the Code is of the opinion that there are
reasonable grounds for believing that the accusation
against such person is prima facie true”
54. At the very outset, the decision in Manish Sisodia (Supra) relied upon
by the Appellant is completely distinguishable in the facts of the present case.
The said case related to a politician and cannot be compared to the present
Appellants who were members of the Indian Mujahideen, a banned terrorist
outfit.
Scope and Ambit of Section 43D(5) of the UAPA
55. It is no longer res integra that if there are reasonable grounds to show
that the accusations against the persons are prima facie true, then the
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Appellants are not to be released on bail. These twin conditions under Section
43D(5) of the UAPA have been repeatedly discussed in several judgments by
the Supreme Court.
56. In the decision in National Investigation Agency v. Zahoor Ahmad
Shah Watali, (2019) 5 SCC 1, the Supreme Court has laid down the various
aspects that deserves consideration while considering a bail application under
the UAPA. The relevant portion of the said decision reads as under:
“21. Before we proceed to analyse the rival
submissions, it is apposite to restate the settled legal
position about matters to be considered for deciding an
application for bail, to wit:
(i) whether there is any prima facie or reasonable
ground to believe that the accused had committed the
offence;
(ii) nature and gravity of the charge;
(iii) severity of the punishment in the event of
conviction;
(iv) danger of the accused absconding or fleeing, if
released on bail;
(v) character, behaviour, means, position and standing
of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being
tampered with; and
(viii) danger, of course, of justice being thwarted by
grant of bail. (State of U.P. v. Amarmani Tripathi [State
of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21, para 18
: 2005 SCC (Cri) 1960 (2)] .)xxxx xxxx xxxx
24. A priori, the exercise to be undertaken by the Court
at this stage–of giving reasons for grant or non-grant
of bail–is markedly different from discussing merits or
demerits of the evidence. The elaborate examination orSignature Not Verified CRL.A. 95/2025 & CRL.A. 252/2025 Page 25 of 46
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dissection of the evidence is not required to be done at
this stage. The Court is merely expected to record a
finding on the basis of broad probabilities regarding the
involvement of the accused in the commission of the
stated offence or otherwise.”
57. In Gurwinder Singh (Supra), the Supreme Court discussed Section
43D(5) of the UAPA in detail and held that ‘jail is an exception and bail is a
rule’ under this provision. The relevant portions of the said judgment are set
out below:
“26. The conventional idea in bail jurisprudence vis-à-
vis ordinary penal offences that the discretion of courts
must tilt in favour of the oft-quoted phrase — “bail is
the rule, jail is the exception” — unless circumstances
justify otherwise — does not find any place while
dealing with bail applications under the UAP Act. The
“exercise” of the general power to grant bail under the
UAP Act is severely restrictive in scope. The form of the
words used in the proviso to Section 43-D(5)— “shall
not be released” in contrast with the form of the words
as found in Section 437(1)CrPC — “may be released”
— suggests the intention of the legislature to make bail,
the exception and jail, the rule.
27. The courts are, therefore, burdened with a sensitive
task on hand. In dealing with bail applications under the
UAP Act, the courts are merely examining if there is
justification to reject bail. The “justifications” must be
searched from the case diary and the final report
submitted before the Special Court. The legislature has
prescribed a low, “prima facie” standard, as a measure
of the degree of satisfaction, to be recorded by the Court
when scrutinising the justifications [materials on
record]. This standard can be contrasted with the
standard of “strong suspicion”, which is used by courts
while hearing applications for “discharge”. In fact, the
Supreme Court in Zahoor Ahmad Watali [NIA v. Zahoor
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Ahmad Shah Watali, (2019) 5 SCC 1 : (2019) 2 SCC
(Cri) 383] has noticed this difference, where it said :
(SCC p. 24, para 23)
“23. … In any case, the degree of satisfaction to be
recorded by the court for opining that there are
reasonable grounds for believing that the accusation
against the accused is prima facie true, is lighter than
the degree of satisfaction to be recorded for considering
a discharge application or framing of charges in
relation to offences under the 1967 Act.”
28. In this background, the test for rejection of bail is
quite plain. Bail must be rejected as a “rule”, if after
hearing the Public Prosecutor and after perusing the
final report or case diary, the court arrives at a
conclusion that there are reasonable grounds for
believing that the accusations are prima facie true. It is
only if the test for rejection of bail is not satisfied — that
the courts would proceed to decide the bail application
in accordance with the “tripod test” (flight risk,
influencing witnesses, tampering with evidence). This
position is made clear by sub-section (6) of Section 43-
D, which lays down that the restrictions, on granting of
bail specified in sub-section (5), are in addition to the
restrictions under the Code of Criminal Procedure or
any other law for the time being in force on grant of bail.
29. On a textual reading of Section 43-D(5) of the UAP
Act, the inquiry that a bail court must undertake while
deciding bail applications under the UAP Act can be
summarised in the form of a twin-prong test:
(1) Whether the test for rejection of the bail is satisfied?
1.1. Examine if, prima facie, the alleged “accusations”
make out an offence under Chapter IV or VI of the UAP
Act;
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1.2. Such examination should be limited to case diary
and final report submitted under Section 173CrPC;
(2) Whether the accused deserves to be enlarged on bail
in light of the general principles relating to grant of bail
under Section 439CrPC (“tripod test”)?
On a consideration of various factors such as nature of
offence, length of punishment (if convicted), age,
character, status of accused, etc. the court must ask
itself:
2.1. Whether the accused is a flight risk?
2.2. Whether there is apprehension of the accused
tampering with the evidence?
2.3. Whether there is apprehension of accused
influencing witnesses?
30. The question of entering the “second test” of the
inquiry will not arise if the “first test” is satisfied. And
merely because the first test is satisfied, that does not
mean however that the accused is automatically entitled
to bail. The accused will have to show that he
successfully passes the “tripod test”.”
58. In Gurwinder Singh (Supra), the twin-prong test i.e., whether the test
for rejection is satisfied or not was enunciated. Further, as part of the second
test, the ‘tripod test’ i.e., flight risk, influence to the witnesses and tempering
of evidence, is to be applied by a Court while deciding a bail application. The
Supreme Court in Gurwinder Singh (Supra) elaborated on the different
aspects which were laid down in Zahoor Ahmad Shah Watali (Supra) as
under:
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“Test for rejection of bail : Guidelines as laid down by
Supreme Court in Watali case
31. In the previous section, based on a textual reading,
we have discussed the broad inquiry which courts seized
of bail applications under Section 43-D(5) of the UAP
Act read with Section 439CrPC must indulge in. Setting
out the framework of the law seems rather easy, yet the
application of it, presents its own complexities. For
greater clarity in the application of the test set out
above, it would be helpful to seek guidance from binding
precedents.
32. In this regard, we need to look no further
than Watali case [NIA v. Zahoor Ahmad Shah Watali,
(2019) 5 SCC 1 : (2019) 2 SCC (Cri) 383] which has
laid down elaborate guidelines on the approach that
courts must partake in, in their application of the bail
limitations under the UAP Act. On a perusal of paras 23
to 24 and 26 to 27, the following 8-point propositions
emerge and they are summarised as follows:
32.1.Meaning of “prima facie true” : (Watali case,
SCC p. 24, para 23)
On the face of it, the materials must show the complicity
of the accused in commission of the offence. The
materials/evidence must be good and sufficient to
establish a given fact or chain of facts constituting the
stated offence, unless rebutted or contradicted by other
evidence.
32.2.Degree of satisfaction at pre charge-sheet, post
charge-sheet and post-charges — compared : (Watali
case , SCC p. 28, para 26)
“26. … once charges are framed, it would be safe
to assume that a very strong suspicion was founded
upon the materials before the Court, which
prompted the Court to form a presumptive opinion
as to the existence of the factual ingredients
constituting the offence alleged against theSignature Not Verified CRL.A. 95/2025 & CRL.A. 252/2025 Page 29 of 46
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accused, to justify the framing of charge. In that
situation, the accused may have to undertake an
arduous task to satisfy the Court that despite the
framing of charge, the materials presented along
with the charge-sheet (report under Section
173CrPC), do not make out reasonable grounds
for believing that the accusation against him is
prima facie true. Similar opinion is required to be
formed by the Court whilst considering the prayer
for bail, made after filing of the first report made
under Section 173 of the Code, as in the present
case.”
32.3.Reasoning, necessary but no detailed evaluation
of evidence : (Watali case, SCC p. 27, para 24)
“24. … the exercise to be undertaken by the Court
at this stage–of giving reasons for grant or non-
grant of bail–is markedly different from
discussing merits or demerits of the evidence. The
elaborate examination or dissection of the
evidence is not required to be done at this stage.”
32.4.Record a finding on broad probabilities, not based
on proof beyond doubt : (Watali case , SCC p. 27, para
24)
“The Court is merely expected to record a finding
on the basis of broad probabilities regarding the
involvement of the accused in the commission of
the stated offence or otherwise.”
32.5.Duration of the limitation under Section 43-
D(5) : (Watali case, SCC p. 27, para 26)
“26. … the special provision, Section 43-D of the
1967 Act, applies right from the stage of
registration of FIR for the offences under Chapters
IV and VI of the 1967 Act until the conclusion of
the trial thereof.”
32.6.Material on record must be analysed as a
“whole”; no piecemeal analysis : (Watali case, SCC p.
28, para 27)
“27. … the totality of the material gathered by the
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investigating agency and presented along with the
report and including the case diary, is required to
be reckoned and not by analysing individual pieces
of evidence or circumstance.”
32.7.Contents of documents to be presumed as true :
(Watali case, SCC p. 28, para 27)
“27. … The Court must look at the contents of the
document and take such document into account as
it is.”
32.8.Admissibility of documents relied upon by
prosecution cannot be questioned : (Watali case, SCC
pp. 24 & 28, paras 23 & 27)
The materials/evidence collected by the
investigation agency in support of the accusation
against the accused in the first information
report must prevail until contradicted and
overcome or disproved by other evidence…. In any
case, the question of discarding the document at
this stage, on the ground of being inadmissible in
evidence, is not permissible.”
59. Moreover, a Co-ordinate Bench of this Court in Abdul Wahid v.
National Investigation Agency, 2024 SCC OnLine Del 5402 observed in
respect of Section 43D(5) of the UAPA as under:
“21. The UAPA is a special Act, which has
provisions that lay down standards to be adopted for
grant of bail. Section 43-D(5) of the UAPA reads as
under:
“(5) Notwithstanding anything contained in the Code,
no person accused of an offence punishable under
Chapters IV and VI of this Act shall, if in custody, be
released on bail or on his own bond unless the Public
Prosecutor has been given an opportunity of being
heard on the application for such release:
Provided that such accused person shall not
be released on bail or on his own bond if the
Court, on a perusal of the case diary or theSignature Not Verified CRL.A. 95/2025 & CRL.A. 252/2025 Page 31 of 46
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report made under section 173 of the Code is
of the opinion that there are reasonable
grounds for believing that the accusation
against such person is prima facie true.”
22. A perusal of the above provision shows that
the threshold for granting bail under Section 43-D(5)
of UAPA is quite high; the accused person shall not
be released on bail if the Court is of the opinion that
there are grounds to believe that the allegations
against the accused are prima facie true.”
60. In the light of the findings given by the Trial Court in Jaipur in FIR
No.03/2014 and the judgments discussed above, this Court has to take a prima
facie view that as to whether the accusations against the Appellants are true
or not. The question is whether the various findings, which have been given
by the Trial Court in Jaipur leading to conviction of the Appellants, satisfies
the test under Section 43D(5) of the UAPA.
61. The conviction means that the various allegations against the
Appellants i.e., that they are the members of Indian Mujahideen, that they had
contacts with leaders of the said group, that they had knowledge of making
bombs and were found in possession of various chemicals, electronic
equipment with an intention to implement a terrorist attack, have also been
proved by the agency. The mere fact that the sentence of the Appellants has
been suspended, does not mean that the conviction is doubted at this stage. In
the opinion of this Court, the FIR No. 03/2014 is linked to the FIR No.
54/2011 registered at PS Special Cell, Delhi Police. The facts proved therein
and the findings of the Court are sufficient to satisfy the test of prima facie
under Section 43D(5) of the UAPA.
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Prolonged Period of Incarceration
62. The need for speedy trial and the issue of long incarceration has been
discussed by the Supreme Court in the decision in Sheikh Javed Iqbal @
Ashfaq Ansari @ Javed Ansari (Supra). The Supreme Court granted bail in
this matter and distinguished Gurwinder Singh (Supra) on the ground that
the trial was underway in the latter case. The relevant portion of the decision
in Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari (Supra) reads as
under:
“22. It is trite law that an accused is entitled to a speedy
trial. This Court in a catena of judgments has held that
an accused or an undertrial has a fundamental right
to speedy trial which is traceable to Article 21 of the
Constitution of India. If the alleged offence is a serious
one, it is all the more necessary for the prosecution to
ensure that the trial is concluded expeditiously. When a
trial gets prolonged, it is not open to the prosecution to
oppose bail of the accused-undertrial on the ground that
the charges are very serious. Bail cannot be denied only
on the ground that the charges are very serious though
there is no end in sight for the trial to conclude
xxxx xxxx xxxx
31. In Gurwinder Singh (supra) on which reliance has
been placed by the respondent, a two Judge Bench of
this Court distinguished K.A. Najeeb (supra) holding
that the appellant in K.A. Najeeb (supra) was in
custody for five years and that the trial of the appellant
in that case was severed from the other co-accused
whose trial had concluded whereupon they were
sentenced to imprisonment of eight years; but in
Gurwinder Singh, the trial was already underway and
that twenty two witnesses including the protected
witnesses have been examined. It was in that context,
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observed that mere delay in trial pertaining to grave
offences cannot be used as a ground to grant bail.
32. This Court has, time and again, emphasized that
right to life and personal liberty enshrined under Article
21 of the Constitution of India is overarching and
sacrosanct. A constitutional court cannot be restrained
from granting bail to an accused on account of
restrictive statutory provisions in a penal statute if it
finds that the right of the accused-undertrial under
Article 21 of the Constitution of India has been
infringed. In that event, such statutory restrictions
would not come in the way. Even in the case of
interpretation of a penal statute, howsoever stringent it
may be, a constitutional court has to lean in favour of
constitutionalism and the rule of law of which liberty is
an intrinsic part. In the given facts of a particular case,
a constitutional court may decline to grant bail. But it
would be very wrong to say that under a particular
statute, bail cannot be granted. It would run counter to
the very grain of our constitutional jurisprudence. In
any view of the matter, K.A. Najeeb (supra) being
rendered by a three Judge Bench is binding on a Bench
of two Judges like us.”
63. The Supreme Court has also emphasised on the need for speedy trial in
the decision in Javed Gulam Nabi Shaikh v. State of Maharashtra & Anr,
2024 SCC OnLine SC 1693. In the decision dated 10th January, 2025 in Crl.
A. 871/2023 titled Md. Heydaitullah v. National Investigation Agency, this
Court under similar circumstances, after considering the evidence on record
as also the material which was available, rejected the prayer for bail. The
decision in Thwaha Fasal v. Union of India, 2021 SCC OnLine SC 1000
was also discussed by this Court in the said case.
64. In the recent judgment of the Supreme Court in Gulfisha Fatima
(Supra) rendered on 5th January, 2026, the Supreme Court has considered all
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the judgments relating to the issue of prolonged incarceration and judicial
custody. The Supreme Court after considering the said judgments has
observed as under:
“46. One such consideration is the gravity of the alleged
offence in its statutory setting. Under the UAPA,
Parliament has legislatively characterised certain
conduct as implicating the security of the State and the
peace of society. That legislative characterisation does
not conclude the judicial inquiry, but it is not
constitutionally irrelevant. It forms part of the context in
which the Article 21 claim is assessed.
47. A closely allied consideration is the role attributed
to the accused. Prosecutions under the UAPA may
allege varying degrees of participation, ranging from
peripheral acts to strategic, organisational, or
ideological centrality. The constitutional significance
of prolonged incarceration cannot be assessed
uniformly for all accused regardless of role. Where the
attribution suggests a central or organising role in the
alleged design, the need for circumspection before
constitutional intervention displaces a statutory
embargo is correspondingly greater. Conversely,
where the role is peripheral or episodic, prolonged
incarceration may more readily assume a punitive
character.
48. Another consideration is the prima facie strength of
the accusation at the limited threshold contemplated by
Section 43D(5). At this stage, the Court does not weigh
evidence, test defences, or conduct a mini trial. Yet, the
constitutional inquiry cannot proceed as if all
allegations are identically situated. Whether the
prosecution material, taken at its highest, discloses a
prima facie nexus between the accused and the statutory
ingredients is a circumstance that informs the
assessment of continued detention.
49. Consideration must also be given to the integrity of
the trial process and the risks associated with release.
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Depending on the nature of the case, these may include
the possibility of influencing witnesses, tampering with
evidence, or undermining the fairness of the
proceedings. In prosecutions alleging organised
activity, the assessment of such risks may differ from
that in ordinary criminal cases. This is not to presume
guilt, but to recognise that bail decisions are
necessarily forward-looking in terms of ensuring an
effective trial.
50. The Court must also bear in mind that it is not
confined to a binary choice between continued custody
and unconditional release. Where delay becomes a
matter of constitutional concern, appropriate directions
for expeditious trial, prioritisation of witnesses, or
periodic review of progress may be issued. Such
measures are constitutionally significant responses that
address the vice of delay while respecting the statutory
framework. The liberty to renew a prayer for bail upon
continued stagnation may also be preserved.
51. There is a further constitutional aspect that warrants
articulation. Article 21 protects individual liberty. It
also, within the same guarantee of life, reflects the
State’s obligation to protect the life and security of the
community. In prosecutions alleging threats to public
order and national security, the Court cannot be
unmindful that both dimensions are engaged. The
constitutional order is not served by an approach that
treats liberty as the sole value and societal security as
peripheral. Both must be accommodated through
reasoned adjudication.
52. The consequence of the above is that Najeeb(supra)
must be understood as a principled safeguard against
unconscionable detention. Prolonged incarceration is a
matter of serious constitutional concern and carries
great weight. It is not, however, the sole determinant.
The Court must consider, in totality, whether
continued detention has become constitutionally
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statutory context, the limited prima facie material, the
trajectory of the trial, the causes of delay, and the
availability of intermediate remedies.
53. This approach does not dilute Article 21. It gives
Article 21 structured content in a field where the
Constitution itself recognises competing interests. Nor
does it render Section 43D(5) absolute. It recognises
that statutory restraint must yield in an appropriate
case where detention becomes punitive by reason of
unreasonable and unjustified delay. What it excludes
is a mechanical override based on time alone, divorced
from legal context.
54. Having set out the above governing approach, this
Court, in the later part of this judgment would apply
these principles in a calibrated manner viz. to the claim
of each of the appellants. The Court will examine, in
relation to each appellant, the role attributed and
whether the statutory threshold under Section 43D(5) is
attracted on the prosecution material taken at its
highest. Thereafter, where the plea of delay and
prolonged incarceration is pressed, the Court will
consider whether the circumstances warrant
constitutional intervention in terms of the principles
noticed above, or whether appropriate directions for
expeditious trial would adequately address the concern
expressed under Article 21.
55. It is in this disciplined manner, and in faithful regard
to both statutory design and constitutional principle,
that the present appeals are proposed to be adjudicated.
56. It therefore becomes necessary to state, with clarity,
the governing approach. In prosecutions alleging
offences which implicate the sovereignty, integrity, or
security of the State, delay does not operate as a trump
card that automatically displaces statutory restraint.
Rather, delay serves as a trigger for heightened judicial
scrutiny. The outcome of such scrutiny must be
determined by a proportional and contextual
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(i) the gravity and statutory character of the offence
alleged, (ii) the role attributed to the accused within the
alleged design or conspiracy, (iii) the strength of the
prima facie case as it emerges at the limited threshold
contemplated under the special statute, and (iv) the
extent to which continued incarceration, viewed
cumulatively in the facts of the case, has become
demonstrably disproportionate so as to offend the
guarantee of personal liberty under Article 21.
57. Thus, when the composite evaluation yields a clear
conclusion that continued detention has crossed the
bounds of constitutional permissibility that the Court
may justifiably intervene notwithstanding statutory
restrictions.”
65. A three-judge bench of the Supreme Court in K.A Najeeb (Supra)
observed that a Constitutional Court is not strictly bound by the prohibitory
provisions of grant of bail under UAPA and can exercise its constitutional
jurisdiction to release an accused on bail who has been incarcerated for a long
period of time. The relevant paragraph of the said judgement reads as under:
“17. It is thus clear to us that the presence of statutory
restrictions like Section 43-D (5) of UAPA per-se does
not oust the ability of Constitutional Courts to grant
bail on grounds of violation of Part III of the
Constitution. Indeed, both the restrictions under a
Statue as well as the powers exercisable under
Constitutional Jurisdiction can be well harmonised.
Whereas at commencement of proceedings, Courts are
expected to appreciate the legislative policy against
grant of bail but the rigours of such provisions will
melt down where there is no likelihood of trial being
completed within a reasonable time and the period of
incarceration already undergone has exceeded a
substantial part of the prescribed sentence. Such anSignature Not Verified CRL.A. 95/2025 & CRL.A. 252/2025 Page 38 of 46
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approach would safeguard against the possibility of
provisions like Section 43-D (5) of UAPA being used as
the sole metric for denial of bail or for wholesale breach
of constitutional right to speedy trial.”
66. However, insofar as the decision in K.A. Najeeb (Supra) is concerned,
the Supreme Court in the decision in Gulfisha Fatima (Supra) has observed
as under:
“61. To read Najeeb (supra) as mandating bail solely
on account of prolonged incarceration, irrespective of
the statutory context or the nature of the allegations,
would be to attribute to the decision a consequence it
neither intended nor supports. Such a construction
would also lead to an interpretive absurdity, whereby a
special statute enacted by Parliament to address
offences implicating the sovereignty, integrity, and
security of the State would stand effectively neutralised
by the mere passage of time, even at a pre-trial stage.
Such an outcome cannot be countenanced in
constitutional adjudication. Accordingly, the finding in
Najeeb(supra) is properly situated as a constitutional
safeguard to be invoked in appropriate cases, and not
as a mathematical formula of universal application.”
67. Insofar as the prolonged period of incarceration is concerned, the
decision in Gulfisha Fatima (Supra) makes it clear that the role which has
been attributed to the Appellants, prima facie material, etc. deserves to be
considered by this Court. In the case of persons such as Appellants, who are
part of terrorist organizations, there exists a continuing threat that they are
likely to indulge in such behaviour if they are granted bail, especially, when
considered in the light of the conviction which has already been handed out
to the Appellants. Accordingly, this Court is of the view that merely prolonged
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incarceration would not be sufficient to grant bail to the Appellants, in these
facts and circumstances.
Parity: Ground for Seeking Bail
68. The Supreme Court in the decision in Gulfisha Fatima (Supra)
emphasised on the fact that all the accused persons cannot be treated
identically. The Court noted that there has to be a distinction between accused
persons based on the quality of material, the nature of involvement, and the
necessity of further detention. The relevant portion of the said decision reads
as under:
“100. The gravity of the alleged act is unquestionably
serious however, public interest and national security
concerns may be engaged to a materially different
degree depending on the role of each accused. The
continued detention of those alleged to be the architects
of the conspiracy may be required to safeguard broader
security interests and deter future acts, whereas the
rationale for continued incarceration of minor
participants is comparatively attenuated once the
investigative purpose is exhausted. The Court is
therefore justified in calibrating its approach, ensuring
that the pursuit of security does not eclipse the principle
of proportionality.
101. It is well recognised that Article 21 rights, though
not absolute, require the State and the Court to justify
continued custody with reference to the specific
individual before it. Treating all accused identically
irrespective of their roles would risk transforming pre-
trial detention into a punitive mechanism divorced
from individual circumstances. The constitutional
mandate demands a differentiated inquiry: where
prolonged custody disproportionately burdens those
whose roles are limited, the balance between individual
liberty and collective security may call for conditional
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those alleged to have orchestrated the offence
102. The statutory restrictions under special
enactments do not preclude the Court from
recognising distinctions between accused persons
based on the quality of material, the nature of
involvement, and the necessity of further detention.”
69. Further, the Supreme Court in the decision in Sagar v. State of U.P.,
2025 SCC OnLine SC 2584 while discussing the issue of granting bail on the
ground of parity with a co-accused observed as under:
“10. The question that arises for consideration is
whether, as done by the High Court in the impugned
order, parity with the co-accused persons can be the
sole reason for granting bail. Bail has often been stated
to be the rule, and jail, the exception. This cannot be
emphasized enough. At the same time, this, however,
does not mean that the relief of bail is to be granted
without due regard to the circumstances involved in
the alleged offence for which the accused person has
been arrested. In this regard, it has to be noted that a
Court, while granting bail, has to consider a number of
aspects. Judgments too many to count, delivered by this
Court have delineated the relevant considerations to be
kept in mind. A recent reiteration thereof was in Ashok
Dhankad v. State of NCT of Delhi3 The relevant extracts
thereof are as under:–
“19. The principles which emerge as a
result of the above discussion are as
follows:
(i) An appeal against grant of bail cannot
be considered to be on the same footing as
an application for cancellation of bail;
(ii) The Court concerned must not venture
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into a threadbare analysis of the evidence
adduced by prosecution. The merits of
such evidence must not be adjudicated at
the stage of bail;
(iii) An order granting bail must reflect
application of mind and assessment of the
relevant factors for grant of bail that have
been elucidated by this Court.
[See: Y v. State of Rajasthan (Supra);
Jaibunisha v. Meherban and Bhagwan
Singh v. Dilip Kumar @ Deepu]
(iv) An appeal against grant of bail may
be entertained by a superior Court on
grounds such as perversity; illegality;
inconsistency with law; relevant factors
not been taken into consideration
including gravity of the offence and
impact of the crime;
(v) However, the Court may not take the
conduct of an accused subsequent to the
grant bail into consideration while
considering an appeal against the grant of
such bail. Such grounds must be taken in
an application for cancellation of bail;
and
(vi) An appeal against grant of bail must
not be allowed to be used as a retaliatory
measure. Such an appeal must be confined
only to the grounds discussed above.”
11. It is clear from the perusal of the above factors that
the High Court failed to consider all that was relevant.
On parity, it is necessary to refer to Ramesh Bhavan
Rathod v. Vishanbhai Hirabhai Makwana(Koli). This
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Court observed that while utilizing parity as a ground
for bail, the same must focus on the role of the accused
and cannot be utilized solely because another accused
person was granted bail in connection with the same
offence, and neither can this ground be claimed as a
matter of right. [See also: Tarun Kumar v. Assistant
Director Directorate of Enforcement; Sabita Paul v.
State of West Bengal]
xxxx xxxx xxxx
14. What flows from the above judgments, which have
been referred to, only to the limited extent indicated
above, is that the High Courts speak in one voice that
parity is not the sole ground on which bail can be
granted. That, undoubtedly, is the correct position in
law. The word ‘parity’ is defined by the Cambridge
Dictionary as “equality, especially of pay or
position.”14 When weighing an application on parity,
it is ‘position’ that is the clincher. The requirement of
‘position’ is not met only by involvement in the same
offence. Position means what the person whose
application is being weighed, his position in crime, i.e.,
his role etc. There can be different roles played –
someone part of a large group, intending to intimidate;
an instigator of violence; someone who throws hands
at the other side, instigated by such words spoken by
another, someone who fired a weapon or swung a
machete – parity of these people will be with those who
have performed similar acts, and not with someone
who was part of the group to intimidate the other by
the sheer size of the gathering, with another who
attempted to hack away at the opposer’s limbs with a
weapon.”
70. In the opinion of this Court, the prayer for parity would not be tenable
inasmuch as the nature of the material, which was recovered from Mohd.
Maroof, who has been released on bail by this Court and the present two
Appellants is distinct and different. In case of the Appellants, substantial
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amount of damaging material such as chemicals, IEDs, electronic gadgets,
etc. were recovered which would show that they were in the process of
preparing for a terror attack in the country. The seizure and recovery of such
explosives, electronic devices, capability of one of them of being trained to
even making poison and trained for making bombs distinguishes the case of
Mohd. Maroof from the Appellants.
Conclusion:
71. Thus, as it stands, this Court has to consider the following aspects:
i. The gravity of the offence;
ii. The role of the Appellants;
iii. The strength of the prima facie case; and
iv. The extent to which continued incarceration viewed
culminatively on facts would offend the rights of the Appellant
under Article 21 of the Constitution of India.
72. In the background of the legal position enumerated above, the facts of
the present case need to be considered. Both Appellants are not merely
undertrials but they have in fact been convicted for possessing explosive
substances, for being members of the Indian Mujahideen which is a banned
outfit and for conspiring with various co-accused persons to carry out bomb
explosions in various parts of the country. Both the Appellants are well
educated individuals and in fact, one of them i.e., Waqar Azhar was studying
engineering. The seizure which was affected from the Appellants is
established and proved in the final judgment of the Trial Court in Jaipur.
73. The FIR No.03/2014 registered at PS. S.O.G., Jaipur and FIR
No.113/2014 registered at PS. Pratap Nagar, Jodhpur were the mere offshoots
of the main FIR i.e., FIR No. 54/2011 which has been registered in Delhi.
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Even though the Appellants may have been in incarceration for a long period,
their release poses a big threat to national security and safety.
74. The Appellants are persons who have been in touch with the leadership
of the Indian Mujahideen not only in India but also in Pakistan. They have
spread Jihadi material and imparted training in making bombs.
75. At the prima facie stage, these facts are more than sufficient for
rejecting bail. The manner in which the Appellants have been wholly
entrenched in the activities of the Indian Mujahideen leaves no manner of
doubt that, in order to prevent them from indulging in anti-national activities
and terrorist activities, and considering the fact that they pose a flight risk and
could also have an impact on other witnesses who are to appear in the matter,
this Court is of the opinion that they do not deserve to be released on bail.
76. The facts of these two appeals are distinguishable from the case of
Mohd. Maroof from whom the seizure is merely of digital devices. Parity
cannot be applied in a blind manner and it needs to be deeply scrutinized as
to what were the roles of each of these persons. The Appellants herein form
the Rajasthan Module of the Indian Mujahideen. They were arrested upon
secret information being received by the Special Cell, Delhi Police. They had
indulged in forging identities and using pseudonyms such as Rajendra son of
Prakash, etc., to avoid being tracked. They had purchased explosive materials,
chemicals, detonators, IEDs, etc., and were in the preparation for a big
terrorist attack in the country.
77. Under Section 18 of the UAPA, even an act of preparation for
commission of a terrorist act is punishable by imprisonment for life. There is
no indication that the Appellants would not continue these activities even after
being released from prison on bail. The vehement reliance on the orders
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passed by the High Court of Rajasthan would be of no avail to the Appellants
inasmuch as in the said two cases suspension/ bail was granted only on the
ground of long incarceration period and merits of the case was not discussed
by the High Court of Rajasthan. However, under Section 43D(5) of the
UAPA, this Court has an obligation to consider whether the accusations are,
prima facie, true or not.
78. Considering the findings in the FIR No.03/2014 registered at PS.
S.O.G., Jaipur and the various materials which have been seized from the
Appellants, this Court is clearly of the view that the test under the proviso to
Section 43D(5) of the UAPA for not releasing the Appellants stands satisfied.
79. Under these circumstances, the appeals are devoid of merits. The order
dated 10th January, 2025 passed in IA No. 04/2024 in Sessions Case No.
8808/2016 and the order dated 29th January, 2025 passed in IA No. 06/2025
in Sessions Case No. 8808/2016, both by ld. Additional Sessions Judge-02,
New Delhi District, New Delhi respectively do not require any interference
of this Court and are accordingly, confirmed.
80. The present appeals are dismissed in the above terms. Pending
applications, if any, are also disposed of.
PRATHIBA M. SINGH
JUDGE
MADHU JAIN
JUDGE
APRIL 24, 2026
Dk/Ck
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