Bail under the Unlawful Activities (Prevention) Act, 1967 is fought on two fronts: the Section 43D(5) merits bar, and the Article 21 delay jurisprudence that softens it. The Delhi High Court's judgment in Irfan Tariq Antoo v. State (NCT of Delhi) (CRL.A. 954/2023, decided 30 October 2026, Navin Chawla and Arun Bhardwaj, JJ.) resolves neither frontally. Instead, it does something procedurally significant: with the appellant in custody since December 2021, charges framed in July 2024, and only 21 of 356 cited witnesses examined, the Bench disposed of the appeal with liberty to apply for bail afresh before the trial court — which must decide uninfluenced by the earlier rejection and with the subsequent developments in the trial on the table.
The case
The appeal, under Section 21(4) of the NIA Act read with Section 43D(5) UAPA, challenged a Patiala House order of 7 August 2023 rejecting bail in NIA Case No. 2/2022 (RC No. 29/2021/NIA/DLI). The NIA's case paints the appellant as a radicalised recruiter and associate of proscribed outfits who allegedly stored and supplied grenades, handed over AK-47 ammunition, sheltered operatives and channelled funds. The appellant was arrested on 16 December 2021; charges under Sections 120B and 121A IPC and Section 18 UAPA were framed on 30 July 2024 — and, notably, he was discharged of Sections 20, 38 and 39 UAPA and Section 25(1A) Arms Act.
The arguments in brief
Appellant
Nearly five years in custody with 21 of 356 witnesses examined engages K.A. Najeeb and its line of authority. The disclosure statement led to no discovery attributable to him; the recovery from witness X-12 came 24 days later with no chain of custody; the accomplice evidence of X-1 requires corroboration; and several co-accused have bail — from the trial court, the High Court and the Supreme Court.
NIA
The Section 43D(5) threshold is met on the chargesheet read as a whole (Watali; Gurwinder Singh). Post-order evidence is a matter of trial appreciation. The Supreme Court's May 2024 direction for an expeditious trial answers the delay plea, and the appellant has UAPA antecedents at Sopore.
What the Bench actually held
Three points of law emerge. First, following Shoma Kanti Sen, the appellate court may consider material arising after the impugned order — the Bench looked at protected witness X-1's deposition that the appellant handed him a bag of grenades, while holding that its weight should first be assessed at trial. Second, on delay, the court accepted the Article 21 premise but declined to apply it in the abstract: whether the remaining material witnesses — X-12 and the key formal witnesses — can be examined quickly, and why the trial has moved slowly, are questions for the court conducting it. Third, on parity, bail granted to co-accused on delay grounds does not travel automatically; the individual role matters.
The operative architecture
For UAPA practice, that architecture is the story. A remand of this kind resets the record: the fresh application will be judged on the trial as it stands in late 2026 — the pace of witness examination since the 2024 charge-framing, the content of the depositions so far, and the discharge of the appellant from several of the gravest counts.
Practice note: In long-running UAPA matters, defence teams should treat each tranche of recorded evidence as potential changed-circumstance material, and frame renewed bail applications around what the depositions have and have not established — not around the chargesheet narrative alone. Where health grounds exist, they must be raised before the trial court first; the Bench here declined to consider ailments never placed below.
Frequently Asked Questions
What is the Section 43D(5) UAPA bar?
For offences under Chapters IV and VI of the UAPA, bail cannot be granted if, on a perusal of the case diary and chargesheet, the court finds reasonable grounds to believe the accusation is prima facie true. The Supreme Court in Watali confined this to a surface-level reading of the prosecution material, without weighing its eventual evidentiary worth.
Why did the High Court not simply decide the delay argument itself?
The Bench accepted that there is considerable delay and that prolonged incarceration may implicate Article 21, but held that the reasons for the delay — and whether the remaining material witnesses can be examined expeditiously — are matters the trial court is better placed to assess, alongside the risk of witness influence.
Can a court hearing a UAPA bail appeal look at evidence recorded after the impugned order?
Yes. Relying on the Supreme Court's decision in Shoma Kanti Sen, the Bench held that an appellate court may consider material arising after the trial court's order — here, the deposition of protected witness X-1 — though it left the weighing of that testimony to the trial court in the first instance.
Does bail to co-accused help on parity?
Only partially. The court noted that some co-accused received bail on account of delay, but reiterated that each accused's case must be decided on its own merits — the role attributed, the material against that individual, and their specific custody and conduct history.