An accused cannot be indefinitely imprisoned for the failure of the prosecutor or trial court to meet the mandatory requirement of a day-to-day trial under the National Investigation Agency Act, the Supreme Court has said while granting bail to a man charged with anti-national activities.

The judgment can have a bearing on several high-profile cases, including the Delhi communal riots conspiracy case against social activist Umar Khalid who has been in jail as an undertrial for the past four years.

The bench of Justice J.B. Pardiwala and Justice Ujjal Bhuyan passed the verdict while allowing the appeal filed by Javed Gulam Nabi Shaikh, held in a Mumbai jail under the anti-terror law UAPA since February 2020.

Shaikh had allegedly been caught with counterfeit 2,000-rupee notes, said to have been smuggled in from Pakistan, at Mumbai airport.

The apex court censured trial courts and high courts for ignoring the principle of law it had laid down in a catena of judgments — that “bail is a right and jail an exception”.

It said that even when the alleged crime was a serious one, the accused could not be denied bail except under exceptional circumstances, else it would violate his or her fundamental right.

“The appellant is in jail as an under-trial prisoner (for the) past four years. Till this date, the trial court has not been able to even proceed to frame charge(s); and as pointed out by the counsel appearing for the state as well as NIA, the prosecution intends to examine not less than 80 witnesses,” the apex court said in its written order.

“…We wonder by what period of time the trial will ultimately conclude.
Howsoever serious a crime may be, an accused has a right to speedy trial as enshrined under the Constitution of India.... The trial courts and the high courts have forgotten a very well settled principle of law that bail is not to be withheld as a punishment.”

The bench took exception to the NIA and Mumbai police, who first arrested Shaikh, opposing the bail plea.

“If the state or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution, then the state or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious,” it said.

The court said: “...The manner in which the prosecuting agency as well as the court have proceeded, the right of the accused to have a speedy trial could be said to have been infringed thereby violating Article 21 of the Constitution.”

The apex court noted that “Section 19 of the National Investigation Agency Act, 2008, mandates that the trial under the act of any offence by a special court shall be held on day-to-day basis on all working days and have precedence over the trial of any other case and special courts are to be designated for such an offence….”

It also noted that two co-accused of Shaikh were out on bail, although the NIA had challenged the relief granted to one of the co-accused before the apex court.

Saying the trial court could impose the bail conditions it deemed fit, the apex court added its own condition that Shaikh not leave the Mumbai city limits and “mark his presence at the concerned NIA office or police station once every 15 days”.