Mohd. Saquib Ansari v. State NCT of Delhi

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 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.

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 and 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 year, for the offence punishable under Section 5 of the iii.): Rigorous imprisonment for the term of ten years year, for the offence punishable under Section 6 of the iv.): Rigorous imprisonment for the term of ten years year, for the offence punishable under Section 16 of the Unlawful Activities (Prevention) Act, 1967. v.): Rigorous imprisonment for the term of ten years year, for the offence punishable under Section 17 of vi.): Rigorous imprisonment for the term of ten years year, for the offence punishable under Section 18 of vii.): Rigorous imprisonment for the term of ten years year, for the offence punishable under Section 18A of viii.): Rigorous imprisonment for the term of ten years year, for the offence punishable under Section 18B of ix.): Rigorous imprisonment for the term of ten years year, for the offence punishable under Section 19 of x.): Rigorous imprisonment for the term of ten years year, for the offence punishable under Section 20 of xi.): Rigorous imprisonment for the term of ten years year, for the offence punishable under Section 23 of 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 non-remittance of the fine-amount, shall further year, for the offence punishable under Section 121-A of the Indian Penal Code. xiv.): Rigorous imprisonment for the term of ten years non-remittance of the fine-amount, shall further year, for the offence punishable under Section 122 of 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. 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, 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, 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 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 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 595 Submissions 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 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. 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.

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 to 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 explosive material is summarized by the Trial Court in paragraph 285 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, circuitplate, 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, cardboard-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. 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. (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 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:

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:

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: “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 the 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)

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)

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 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)

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:

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. 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:

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.

64. In the recent judgment of the Supreme Court in Gulfisha Fatima (Supra) rendered on 5th January, 2026, the Supreme Court has considered all the judgments relating to the issue of prolonged incarceration and judicial custody. The Supreme Court after considering the said judgments has observed as under:

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:

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:

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 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:

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:

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 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]

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 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. 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 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