Kerala High Court Grants Bail to Accused in NIA Trial After Over Four Years in Custody, Imposes Stringent Conditions

A bench of Justice Sushrut Arvind Dharmadhikari and Justice P. V. Balakrishnan heard an appeal under Section 21 of the National Investigation Agency Act, 2008 filed by the ninth accused challenging the Special Court, NIA, Ernakulam's order dated 22.04.2024 dismissing his regular bail application in SC No.4/2021/NIA.

The High Court allowed the appeal and directed release of the appellant on bail subject to conditions, holding that prolonged pre‑trial incarceration and the unlikelihood of trial commencing in the near future weighed in favour of bail despite statutory bail‑restricting provisions in the Unlawful Activities (Prevention) Act. The Court relied on recent Supreme Court precedents and observed that constitutional protections under Article 21 could override the strictures of Sections 43‑D(5) and 43‑D(7) of the UA(P) Act where delay made continued detention disproportionate. The Court, in its reasoning, observed: “In the light of the dictums laid down by the Apex Court, considering the fact that the appellant herein is undergoing incarceration for a period of more than four years and four months and also the report received from the trial court, which shows that the trial is not likely to commence and end in near future, we are of the considered view that this is a fit case where the appellant can be granted the relief as sought for by him.” The judgment further stated that “the constitutional right of speedy trial will have precedence over the strict provisions such as Sections 43‑D(5) and also 43‑D(7) of the UA(P) Act.”

Background

The appellant, a Sri Lankan national residing in Chennai as a refugee and alleged to have been an LTTE cadre, faced multiple serious charges in SC No.4/2021/NIA including offences under Sections 120B and 125 IPC, various provisions of the Unlawful Activities (Prevention) Act, offences under the Arms Act and multiple provisions of the NDPS Act. The prosecution alleged conspiracy to revive LTTE, large‑scale trafficking of narcotics and illicit acquisition and supply of arms and ammunition, with proceeds invested in properties. The trial court dismissed the appellant's bail petition on 22.04.2024. The appellant contended before the High Court that there was no substantive material to show the accusations were prima facie true, that the prosecution relied primarily on an approver’s statement, and that he had been in custody since 05.10.2021 and suffered ill‑health; he offered to abide by conditions if released. The NIA opposed bail, stressing the gravity of offences, criminal antecedents, risk of absconding and the applicability of Sections 43‑D(5) and 43‑D(7) of the UA(P) Act given the appellant’s non‑citizen status.

The High Court obtained a status report from the trial court which recorded that the trial was not ripe to commence and unlikely to start before January 2027 and, if it did, could conclude only by December 2027; 209 witnesses and about 446 documents awaited examination. Applying the Supreme Court's guidance in Union of India v. K.A. Najeeb and subsequent decisions (including Shoma Kanti Sen, Athar Parwez and Javed Gulam Nabi Shaikh), the Court held that where prolonged incarceration and delay rendered trial rights illusory, constitutional protection of speedy trial under Article 21 required intervention notwithstanding statutory bail bars. The Court found that Section 43‑D(7) did not wholly preclude relief because Article 21 applied to non‑citizens as well. Accordingly, Criminal Appeal No.1731/2024 was allowed and the appellant was directed to be released on bail on execution of a bond of Rs.1,00,000 with two solvent sureties of like amount, to the satisfaction of the Special Court, with mandatory conditions including prior permission to leave Kerala, surrender of any passport, furnishing and updating of residential address, use of a single mobile number and strict reporting, non‑tampering with evidence and non‑association with similar activities. The Special Court was permitted to impose additional conditions and to consider cancellation applications on any breach.

Case No.: Crl.Appeal No. 1731 of 2024 Case Title: Satkunam @ Sabesan v. Union of India Appearances: For the Petitioner(s): Shri Cimil Cherian Kottalil; Sri B. Vinod For the Respondent(s): Shri T.C. Krishna, Senior Panel Counsel; O.M. Shalina, Deputy Solicitor General of India