TaxTMI 
TaxTMI 
2026 (6) TMI 695
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....d. 2. Heard learned counsel for the parties. 3. During the course of hearing, learned counsel appearing for the State submitted that in cases dealing with grant of bail under the Unlawful Activities (Prevention) Act, 1967, there appears to be a perceived divergence in the manner in which the decision of the three-Judge Bench in Union of India v. K.A. Najeeb, (2021) 3 SCC 713 (hereinafter referred to as "K.A. Najeeb"), is being understood and applied by different Benches of this Court. Considering the above divergence of views, he seeks reference of the matter to an appropriate bench to settle the issues. 4. Shri S.V. Raju, Learned ASG, in support of his plea for reference drew our attention to various judgements dealing with the contours of grant of bail under special statutes when juxtaposed with the liberty enshrined under Article 21. He placed reliance inter alia, on Kartar Singh v. State of Punjab [(1994) 3 SCC 569], Shaheen Welfare Assn. v. Union of India [(1996) 2 SCC 616], P. Ramachandra Rao v. State of Karnataka [(2002) 4 SCC 578] and others. He further at the outset submitted that the ratio laid down in Gulfisha Fatima v. State (Govt. of NCT of Delhi) [(2026 INSC ....
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....ional safeguard against unconscionable detention and recorded that there can be no second opinion on the proposition that statutory restrictions must yield in an appropriate case. At this juncture, we deem it necessary to reproduce certain portions of Gulfisha Fatima below: "32. In Union of India v. K.A. Najeeb2, this Court recognised a constitutional safeguard that cannot be ignored: statutory restrictions cannot be applied so as to render the guarantee of personal liberty illusory. It was held that where the trial is not likely to commence or conclude within a reasonable period, constitutional courts retain the jurisdiction to grant bail notwithstanding statutory restraints. The decision thus operates as a protection against unconscionable detention and there can be no second opinion on the said principle." "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 constitutio....
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.... spent or excluded consideration. 13. One circumstance in the present batch deserves particular notice. The present appellants themselves have placed reliance upon Gulfisha Fatima in support of their prayer for bail. This circumstance is not without significance. If Gulfisha Fatima had proceeded on the basis that Section 43D(5) eclipses Article 21, or that prolonged incarceration has no constitutional bearing in UAPA prosecutions, it could hardly have been invoked by accused persons seeking enlargement on bail. The very reliance placed upon it demonstrates that the said decision cannot be placed in a rigid or one-sided frame. 14. In a later decision in Syed Iftikhar Andrabi v. National Investigation Agency, Jammu [(2026 INSC 503)] another coordinate Bench has expressed serious reservations on certain aspects of Gulfisha Fatima, including the manner in which K.A. Najeeb was applied. The later decision has observed, inter alia, that Gulfisha Fatima adopts a narrower reading of K.A. Najeeb and that such reasoning amounts to a hollowing out of the constitutional force of the three-Judge Bench decision. 15. We do not propose to enter into any adjudication on the correctness of ....
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...., consider it our duty not to add another competing formulation to the field, but to place the perceived conflict before a Bench of appropriate strength so that the law may speak with the clarity and authority expected of this Court. 19. It is possible for Benches of this Court to differ in emphasis. It is equally possible that two decisions may proceed on the same constitutional foundation but apply it differently to distinct factual settings. But where the difference is projected as one concerning the binding force of a three-Judge Bench decision, and where such difference is likely to affect pending trials under special statutes across the country, the matter cannot be left to uncertain application by courts. 20. We are also conscious that an unqualified reading of the proposition that lapse of time by itself must compel bail in every case under the UAPA may have serious consequences. Such an approach may leave little room for courts to examine the nature of allegations, centrality of role, protected witnesses, risk of intimidation, possibility of reactivation of networks, nature of delay and whether such delay is attributable to the accused himself/herself, public order c....
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....t, which obviously was brought in keeping in mind the valuable right enshrined in Article 21 of the Constitution of India. 25. Registry is directed to place the papers before Hon'ble the Chief Justice of India for constitution of an appropriate Bench to resolve the aforesaid issues. 26. We clarify that the present reference shall not be understood as an expression of final opinion on the merits of the prosecution case or on the guilt or innocence of the appellants. Nor shall the present order be read as affirming or disapproving any factual finding recorded in any earlier bail order. The reference is confined to the legal questions noticed above. 27. Having said so, we cannot lose sight of the fact that the present appellants have undergone substantial incarceration; that the trial is not likely to conclude immediately; that the appellants themselves have invoked the principle of calibrated constitutional discretion recognised in Gulfisha Fatima; and that the determination of the issues may consume further time. The appellants cannot be made to suffer continued incarceration merely because an important question of law has arisen for authoritative settlement. Without ex....