Introduction
The Delhi High Court has granted bail to Mohd. Shahzad Kamal, an accused in an NIA prosecution involving alleged terrorist activities, after he had remained in custody for more than five years while the trial was still far from completion.
The Division Bench of Justice Navin Chawla and Justice Arun Bhardwaj held that the appellant’s prolonged incarceration, the large number of prosecution witnesses and the slow progress of the trial justified his release on bail. The Court also examined the difficult relationship between Section 43D(5) of the Unlawful Activities (Prevention) Act, 1967 (UAPA) and the constitutional guarantee of personal liberty under Article 21.
The judgment is particularly significant because the Court did not treat the seriousness of the allegations under the UAPA as an automatic justification for indefinite pre-trial detention. At the same time, it recognised that delay alone cannot mechanically result in bail in every UAPA case.
The judgment was pronounced on 1 October 2026 in Mohd. Shahzad Kamal v. National Investigation Agency, CRL.A. 761/2024.
Case Details
| Particular | Details |
|---|---|
| Case Name | Mohd. Shahzad Kamal v. National Investigation Agency |
| Court | Delhi High Court |
| Case Number | CRL.A. 761/2024 |
| Judgment Date | 1 October 2026 |
| Bench | Justice Navin Chawla and Justice Arun Bhardwaj |
| Appellant | Mohd. Shahzad Kamal |
| Respondent | National Investigation Agency |
| Relevant Law | UAPA, NIA Act, IPC and Constitution of India |
| Principal Bail Provision | Section 43D(5), UAPA |
| Appeal Provision | Section 21(4), NIA Act |
| Result | Bail granted subject to stringent conditions |
Background and Facts of the Case
The appellant, Mohd. Shahzad Kamal, was arrayed as accused No. 18 in an NIA case arising from RC No. 38/2018/NIA/DLI.
According to the prosecution, the appellant was allegedly involved in a conspiracy connected with Harkat-Ul-Harb-E-Islam, which the prosecution described as affiliated with ISIS. It was alleged that he participated in the conspiracy and helped arrange funds for terrorist activities.
The prosecution relied upon several categories of material, including alleged Facebook and WhatsApp communications, call records, statements of witnesses, a disclosure statement of a co-accused and recovery of cash.
The allegations against the appellant included providing funds on multiple occasions and maintaining communications with other accused persons. The prosecution also relied upon alleged conversations which it claimed demonstrated the appellant’s knowledge of and involvement in the alleged conspiracy.
The appellant was arrested on 31 August 2021 and remained in judicial custody.
By the time the Delhi High Court considered his appeal, he had spent more than five years in custody. Importantly, the prosecution had cited 161 witnesses, but the trial was still at the stage of recording the statement of PW-42.
Charges Against the Appellant
The prosecution had charged the appellant under Section 121 of the IPC and Sections 17, 18, 39 and 40 of the UAPA.
The allegations essentially concerned conspiracy, terrorist activities and alleged funding and support for the activities attributed to the terrorist group.
Arguments of the Appellant
Prolonged incarceration and delayed trial
The appellant argued that he had already spent more than five years in custody and that the trial was nowhere near completion.
Out of 161 prosecution witnesses, only the evidence of PW-42 was being recorded. According to the appellant, the delay was not attributable to him and there was no realistic prospect of the trial concluding soon.
Reliance was placed on the Supreme Court’s decision in Gulfisha Fatima v. State (Govt. of NCT of Delhi).
Challenge to the alleged chats
The appellant also disputed the prosecution’s reliance on alleged Facebook and WhatsApp conversations.
His argument was that there was no positive evidence establishing that the device or number from which the relevant messages were exchanged actually belonged to him.
Evidence concerning alleged funding
The appellant further argued that the prosecution’s reliance upon the disclosure statement of co-accused Mohd. Absar and the alleged recovery of ₹30,000 could not justify his continued incarceration.
He also challenged the reliability and evidentiary value of the statements of prosecution witnesses.
Arguments of the National Investigation Agency
The NIA opposed the bail plea.
It argued that the High Court should not rely upon evidence recorded after the Trial Court had rejected bail. According to the prosecution, the appellant should instead approach the Trial Court on the basis of the subsequent developments.
The NIA also argued that the High Court should not conduct a detailed examination of the evidence at the bail stage because such assessment belonged to the trial.
It relied upon the restrictions contained in Section 43D(5) of the UAPA, contending that the appellant had failed to satisfy the statutory test for bail.
The prosecution further submitted that the case involved a large conspiracy and that the appellant was not merely a peripheral participant but was allegedly responsible for providing funds for terrorist activities.
Legal Issues Before the Delhi High Court
The principal questions before the Court were:
- Whether the appellant should continue to remain in custody despite having spent more than five years in pre-trial incarceration.
- Whether the slow progress of the trial justified bail despite the restrictions contained in Section 43D(5) of the UAPA.
- Whether the High Court, while exercising appellate jurisdiction, could consider developments and witness statements recorded after the Trial Court’s rejection of bail.
- Whether the material presently available against the appellant crossed the threshold necessary to deny bail under the UAPA.
Court’s Analysis and Reasoning
More than five years in custody weighed heavily with the Court
The Court first took note of the extraordinary length of the appellant’s incarceration.
He had been in custody since 31 August 2021, meaning that he had spent more than five years behind bars. At the same time, the trial involved 161 witnesses and was still progressing through the prosecution evidence.
The Court concluded that the trial was not likely to end any time soon.
This became a central factor in the Court’s decision.
No positive evidence presently established the alleged chats
The Court also considered the prosecution’s reliance upon alleged incriminating chats.
When the Bench specifically asked whether there was evidence establishing that the number with which accused No. 5 had exchanged the relevant chats belonged to the appellant, the prosecution stated that this would be established through witness statements and other material.
The Court therefore observed that, at that stage, there was no positive evidence establishing that the alleged incriminating chats originated from the appellant or were addressed to him.
The Court made clear that the final determination on this issue would depend upon the evidence led during trial.
Witness statements did not justify continued custody
The Court also examined the statements of PW-36, Protected Witness D/PW-37 and the Section 161 statement of PW-17.
Without giving a detailed account of their evidence so as not to prejudice the Trial Court, the Bench concluded that it did not consider this material sufficient to require the appellant to remain in custody when the trial was unlikely to conclude soon.
Section 43D(5) UAPA and Article 21
One of the most important aspects of the judgment concerns the relationship between Section 43D(5) of the UAPA and Article 21 of the Constitution.
Section 43D(5) imposes significant restrictions on the grant of bail in UAPA cases. However, the Court considered the Supreme Court’s jurisprudence recognising that statutory restrictions cannot completely eliminate the constitutional guarantee of personal liberty and speedy trial.
The judgment referred to the principle that where a trial is unlikely to be completed within a reasonable period and the accused has already undergone substantial incarceration, constitutional courts retain the power to grant bail.
Delay Cannot Be Treated as an Automatic Ground for Bail
The Court also recognised an important qualification.
The constitutional right to speedy trial does not mean that mere delay automatically results in bail in every UAPA case.
The Supreme Court authorities discussed in the judgment emphasise that the inquiry must be contextual. Courts must consider factors including:
- nature of the allegations;
- statutory framework;
- stage of the proceedings;
- realistic progress of the trial;
- reasons for delay;
- role attributed to the accused;
- prima facie material;
- risks associated with release; and
- national security and public-order considerations.
Thus, the Court did not adopt a rule that every accused detained for a particular period must automatically be released on bail.
Individual Role of the Accused Must Be Considered
The judgment also refers to the principle that Section 43D(5) requires an accused-specific assessment.
The prosecution case must be examined in relation to the particular accused rather than merely because the accused is connected with a larger conspiracy.
The Supreme Court principles referred to in the judgment state that the bail-stage inquiry must consider whether the prosecution material discloses a prima facie case satisfying the statutory ingredients and whether the role attributed to the individual has a real and meaningful connection with the alleged unlawful or terrorist activity.
High Court Can Consider Subsequent Developments in an Appeal
Another important issue concerned evidence recorded after the Trial Court rejected bail.
The NIA argued that the appellant should return to the Trial Court rather than asking the High Court to consider subsequent developments.
The Delhi High Court rejected this objection.
The Court noted that the appeal had remained pending for more than two years and that the hearing had itself been adjourned on several occasions to enable relevant witnesses to be examined.
In these circumstances, the Court held that it was not barred from considering subsequent developments. Sending the appellant back to the Trial Court would, in the Court’s view, defeat the ends of justice.
Final Decision of the Delhi High Court
The Delhi High Court ultimately set aside the Trial Court’s order rejecting bail and directed that Mohd. Shahzad Kamal be released on bail.
The bail was subject to stringent conditions.
The appellant was required to execute a personal bond of ₹50,000 with two sureties of the same amount. He was also required to surrender his passport, if any, and could not leave India without the Trial Court’s permission.
The Court imposed several additional restrictions, including:
- he could not leave District Hapur except for trial-related purposes and reporting to the NIA;
- he could use only one mobile phone and/or landline number;
- he was required to provide his residential address and contact details to the authorities;
- he was required to appear before the Trial Court on each date of hearing unless exempted;
- he could not delay the proceedings;
- he could not contact, threaten or influence prosecution or protected witnesses;
- he could not tamper with evidence or electronic material;
- he could not make public statements concerning the merits of the case or pending trial;
- he could not participate in activities prejudicial to public order or the integrity of the trial; and
- he was required to report to the concerned NIA branch office periodically.
The Court expressly clarified that its observations were confined to the consideration of bail and should not be treated as findings on the merits of the prosecution case.
Ratio Decidendi
The core principle emerging from the judgment is that prolonged pre-trial incarceration, coupled with the realistic unlikelihood of the trial concluding within a reasonable period, can justify bail even in a UAPA prosecution, provided the court undertakes an accused-specific and contextual assessment under Section 43D(5) and Article 21.
The judgment does not establish that delay by itself automatically defeats the statutory restrictions under the UAPA. Instead, the Court considered the length of custody, the stage and likely duration of the trial, the material against the individual accused and the constitutional guarantee of personal liberty together.
Important Legal Provisions
Section 43D(5), UAPA
Section 43D(5) imposes restrictions on granting bail to persons accused of offences under specified chapters of the UAPA.
In the present case, the provision was important because the prosecution argued that the appellant had failed to satisfy the statutory threshold for bail.
The Court nevertheless considered the constitutional dimension of prolonged incarceration and the right to speedy trial under Article 21.
Article 21 of the Constitution
Article 21 protects life and personal liberty.
The judgment emphasises that prolonged pre-trial incarceration cannot be allowed to effectively become punishment before conviction. At the same time, Article 21 must be applied alongside the statutory restrictions enacted for serious offences under special legislation.
Section 21 of the NIA Act
The appeal arose under the appellate jurisdiction provided by the NIA Act. The High Court also considered whether it could examine subsequent developments while deciding the appeal against rejection of bail.
Important Precedents Referred to in the Judgment
| Case | Legal Principle | How It Was Used |
|---|---|---|
| Union of India v. K.A. Najeeb | Constitutional courts retain power to grant bail where prolonged incarceration and delay threaten fundamental rights. | Used in considering Article 21 alongside Section 43D(5). |
| Gulfisha Fatima v. State (Govt. of NCT of Delhi) | Prolonged incarceration and speedy-trial concerns require constitutional scrutiny. | Guided the Court’s consideration of the appellant’s long custody. |
| Syed Iftikhar Andrabi v. National Investigation Agency, Jammu | Examined the relationship between UAPA bail restrictions and constitutional liberty. | Considered while analysing the developing jurisprudence. |
| Tasleem Ahmed v. State Govt. of NCT of Delhi | Delay under UAPA requires a contextual assessment rather than an automatic rule. | Referred to regarding the interplay between Article 21 and Section 43D(5). |
| Shoma Kanti Sen v. State of Maharashtra | An appellate court may consider subsequent developments in appropriate circumstances. | Relied upon in rejecting the objection to considering later-recorded evidence. |
| Union Territory of Ladakh v. Jammu and Kashmir National Conference | Courts must decide cases according to the law currently binding upon them despite a matter being referred to a larger Bench. | Considered in relation to the developing UAPA bail jurisprudence. |
What This Judgment Means
For UAPA accused persons
The judgment reinforces that an accused cannot necessarily be kept in custody indefinitely merely because the allegations are serious.
The length of incarceration and the realistic possibility of trial completion remain relevant constitutional considerations.
For lawyers
The decision highlights the importance of placing before the court concrete material concerning:
- duration of custody;
- number of witnesses;
- actual progress of trial;
- reasons for delay;
- role attributed to the accused;
- quality of prima facie material; and
- likelihood of the trial concluding within a reasonable period.
For courts
The judgment underscores the need for an individualised assessment rather than treating every accused in a large UAPA prosecution identically.
Key Takeaways
- The Delhi High Court granted bail to Mohd. Shahzad Kamal after more than five years of custody.
- The trial involved 161 prosecution witnesses and was still ongoing.
- The Court found that the trial was unlikely to conclude soon.
- The Court found no positive evidence at that stage establishing that the alleged incriminating chats originated from or were addressed to the appellant.
- Section 43D(5) UAPA does not completely eliminate constitutional scrutiny under Article 21.
- Delay cannot automatically result in bail in every UAPA prosecution.
- The role of the individual accused must be assessed separately.
- The High Court can, in an appropriate appellate proceeding, consider subsequent developments relevant to the bail question.
- The bail order was accompanied by stringent safeguards.
- The Court clarified that its observations were not findings on the merits of the criminal case.
Frequently Asked Questions
What did the Delhi High Court decide in Mohd. Shahzad Kamal v. NIA?
The Delhi High Court set aside the order rejecting bail and directed the release of Mohd. Shahzad Kamal on bail after considering his more than five years of custody, the slow progress of the trial and the material presently available against him.
Why was bail granted despite the UAPA charges?
The Court considered the prolonged incarceration, the fact that the trial was unlikely to conclude soon and the constitutional considerations arising under Article 21, along with the material available against the appellant.
Does delay automatically guarantee bail under the UAPA?
No. The judgment makes clear that delay cannot be treated as an automatic ground for bail. Courts must examine the circumstances of each case, including the nature of allegations, role of the accused, trial progress and risks associated with release.
What is Section 43D(5) of the UAPA?
Section 43D(5) imposes restrictions on granting bail to persons accused of specified UAPA offences. The provision was central to the prosecution’s opposition to the appellant’s bail plea.
How long was Mohd. Shahzad Kamal in custody?
The appellant had been in custody since 31 August 2021 and had completed more than five years of incarceration when the Delhi High Court considered his appeal.
How many witnesses were cited by the prosecution?
The prosecution had cited 161 witnesses. At the relevant stage, the evidence of PW-42 was being recorded.
Did the Delhi High Court acquit the appellant?
No. The judgment concerns bail and not acquittal. The Court expressly stated that its observations should not be treated as findings on the merits of the case.
What conditions were imposed on the appellant?
The Court imposed several conditions, including a ₹50,000 personal bond with two sureties, passport surrender, travel restrictions, reporting requirements and restrictions against contacting witnesses or tampering with evidence.
Can an appellate court consider evidence recorded after rejection of bail?
In the circumstances of this case, the Delhi High Court held that it could consider subsequent developments because the appeal had remained pending and the hearing had been adjourned to enable relevant witnesses to be examined.
