K. Lakshman, J.

1. Heard Mr. B. Nalin Kumar, learned Senior Counsel representing Ms. Kamatam Rajitha, learned counsel for the Appellant and Mr. B. Narasimha Sharma, learned Additional Solicitor General of India, representing Sri P. Vishnuvardhan Reddy, learned Special Public Prosecutor for the National Investigation Agency [hereinafter “NIA”].

2. This appeal is preferred under Section - 21 of the National Investigation Agency Act, 2008 r/w Section - 528 of the Bharatiya Nagrik Suraksha Sanhita [hereinafter “BNSS”], against the order dated 24.03.2026 in Crl.M.P. No.162 of 2026 in Spl.S.C.No.01 of 2026 arising out of R.C. No.04/2025/NIA/HYD of P.S. NIA, Hyderabad, passed by the learned IV Additional Sessions Court – cum – Special Court for NIA Cases, at Nampally, Hyderabad, (for short, ‘The Designated Court’) wherein the bail application filed by the Appellant was dismissed.

3. The Appellant herein is A.1 in Spl.S.C.No.1 of 2026. The offences alleged against him are punishable under Section - 152 of the Bharatiya Nyaya Sanhita [hereinafter “BNS”] and Sections – 13, 38 and 39 of the Unlawful Activities (Prevention) Act, 1967 [hereinafter “UAPA”].

4. The allegations against the Appellant herein are that on 18.10.2025, he attended the funeral meeting of one Katha Ramachandra Reddy @ Vikalp, a deceased Central Committee Member of the proscribed terrorist outfit CPI (Maoist), held at Teegalakuntapally Village, Koheda Mandal, Siddipet District, Telangana. During the said funeral meeting, organized by Amarula Bandu Mitrula Sangham [hereinafter “ABMS”], the Appellant herein made comments eulogizing the deceased Katha Ramachandra Reddy, and the ideology of the CPI (Maoist), inciting the gathering to follow and take forward the ideology of the CPI (Maoist). He, allegedly, incited the people present there to follow the ideology of rebellion and to commit subversive & unlawful activities against the country.

5. On the complaint lodged by Central Government, CTCR Division, Ministry of Home Affairs, New Delhi, the P.S. NIA, Hyderabad, registered a case bearing R.C.No.4 of 2025/NIA, Hyderabad, against the Appellant herein for the offences under Sections 152 of the BNS and Sections 13 & 39 of the UAPA.

6. Thereafter, the Investigating Officer, on completion of the investigation, filed a charge sheet against the Appellant herein for the offences punishable under Section 152 of the BNS and Sections 13, 38 and 39 of the UAPA.

7. The charge sheet alleges that the Appellant had expressed camaraderie with a member of the CPI (Maoist) and also professed to be associated with the CPI (Maoist). Allegedly, he praised the deceased Katha Ramachandra Reddy as a disciplined party worker. This according to the Investigative Officer indicates that the Appellant still has great reverence towards the CPI (Maoist), although he claims to have left the organization in the mid 1980s.

8. The charge sheet also states that the Appellant is running an orphanage in the name and style of “Maa Illu Orphanage Home. From the said orphanage, the Investigating Officer seized a laptop. The said laptop, allegedly, contained material indicating support and sympathy to the CPI (Maoist). This includes document/book criticizing Operation Kagar. Further, the laptop also contained the details of the security forces present in Bastar, Dantewada, Sukma, and Bijapur Districts of Chhattisgarh, as on April 2025. As there is high presence of the CPI (Maoist) cadres in those four districts of Chhattisgarh, the recovery of material relating to the presence of security forces indicates a possibility of a conspiracy to carryout strategic guerilla attacks against the police forces by the cadres of CPI (Maoist). As per the charge sheet, the Appellant’s speech and the material/data found in the seized laptop establishes his association with the CPI (Maoist) and his intention to support its covert acts.

9. The charge sheet also states that several journalists were examined during the course of the investigation. They allegedly revealed that the Appellant used to share content related to the CPI (Maoist) with them with the intention to propagate its ideology through news channels. Further, it is alleged that the Appellant was professing the ideology of the CPI (Maoist) by sharing pamphlets, circulars, etc, to several journalists and other contacts through WhatsApp.

10. The charge sheet alleges that the Appellant had approached several persons and made attempts to meet/talk to the top cadres of CPI (Maoist) in the jungle areas of Chhattisgarh during Operation Kagar. Allegedly, couple of witnesses, who were the surrendered members of the CPI (Maoist), stated that the Appellant used to meet top UG cadres of CPI and have discussions with them. The said witnesses stated that the Appellant was addressed by the senior UG cadres of CPI (Maoist) as 'our member’ and 'important person'.

11. When the Appellant was taken into custody on 02.04.2026 and 06.04.2026, he was confronted with the data retrieved from his mobile phone. The Appellant stated that the documents, articles, and press releases had been received from other persons and that he had merely forwarded them to others who had requested him to share such content. However, as per the charge sheet, the Appellant had shared certain documents that had not been received from anyone. The charge sheet states that, during the investigation, the recipients of such documents denied requesting any documents/material from the Appellant and that the Appellant used to share news articles and YouTube videos connected to the CPI (Maoist) ideology.

12. As per the charge sheet, the Appellant is allegedly also involved as an accused in the following criminal cases:

               a. Cr.No.822 of 2024 of KPHB Colony Police Station, Cyberabad, for the offences under Sections 336 and 427 of IPC and Sections 3 and 4 of the Explosives Act.

               b. Cr.No.169 of 2016 for the offences under Section 304 (A) of the IPC of Mulugu Police Station, Mulugu District.

               c. Cr.No.382 of 2018 of Mills Colony Police Station, Warangal for the offences under Sections 447, 427 and 188 of IPC read with 123(1) of the Representation of the People Act, 1950,

               d. Cr.No.472 of 2018 of Mills Colony Police Station, Warangal, for the offences under Section 188 of the IPC, Section 30 of the Police Act, 1861 and

               e. Cr.No.331 of 2023 of Yellareddypet Police Station, Rajanna Sircilla District, for the offence under Section 120-B read with 149 of the IPC, Sections 5 of the Explosive Substances Act, Section 8 (i) (ii) of the TSPS Act, Sections 10, 13, 18 and 20 of the UAPA.

13. Thus, in brief, the allegations against the Appellant are that he had knowingly and purposefully incited the gathering at the funeral procession of Mr. Katha Ramchandra Reddy. The content of his speech, the material recovered, and statement of the witnesses indicate that he is associated with the CPI (Maoist) and is actively professing its ideology. Based on the allegations, under the charge sheet, the Appellant has been charged with Section 152 of the BNS and Sections 13, 38, and 39 of the UAPA.

14. It is pertinent to note that Crl.M.P. No. 1155 of 2026 was filed by the Investigating Officer seeking permission to conduct further investigation, more particularly, in relation to the allegations against Accused No. 2 and unearth a larger conspiracy. The learned Designated Court vide order dated 24.06.2026 allowed the same. As such, the further investigation is pending.

15. CONTENTIONS ON BEHALF OF THE APPELLANT:

               i. The essential ingredients of the alleged offences are not made out. The speech delivered by the Appellant cannot be equated to promotion of terrorist activities. In this regard, reliance was placed on Thwaha Fasal v. Union of India ((2012) 14 SCC 766), Vernon v. State of Maharashtra ((2023) 15 SCC 56), and Shoma Kanti Sen v. State of Maharashtra ((2024) 6 SCC 591).

               ii. The Appellant delivered the speech during an event organized by ABMS. The said organization is not recognized as a terrorist organization and it is not a Frontal Organization of Maoist party as alleged by respondent – Investigating Agency. Therefore, the alleged offences under Sections 38 & 39 will not attract.

               iii. Highlighting the Appellant’s deep roots in the society and his participation in public life, Sri B.Nalin Kuamr, learned Senior Counsel appearing for appellant, submitted that the Appellant was a member of Radical Student Union from 1981 to 1984. However, he left the said organization in July 1984. Thereafter, he surrendered before the Superintendent of Police, Warangal, in 1986. Since then, he lived as a civilian. In 1987, he contested elections to the Mandal Praja Parishad, Zaffergadh. In 2004, he contested elections as an MLA candidate from different political parties like BRS (TRS), Janata Party, Talli Telangana Party. He has participated actually in the General Elections in support of candidates contested from Indian National Congress. He wrote on regional imbalances between the Andhra and Telangana regions. His works formed the basis for the Telangana separation movement. The Appellant was one of the founding members of the Telangana Rashtra Samithi, a state political party.

               iv. In relation to his social work, it was submitted that the Appellant founded ‘PRAJADHARANA’ Social Welfare Society vide Registration No.190 of 2006), running ‘MAA ILLU’ Orphanage Home in Zaffergadh, which is under supervision and control of Women Child Welfare Department. More than 1500 students completed their studies due to the services offered by the Appellant’s society. He established “Hope Trust Society” and Force – Force for Orphan rights and community empowerment, working for orphans identity and constitutional entitlement of orphans like other persons. He has also conducted regional, state, national and international conferences on the same. He made efforts to bring a statute for orphans and in the said process he met several Members of Parliament.

16. It is apt to note that Sri B.Nalin Kumar, learned Senior counsel for the appellant, furnished list of dates in support of the aforesaid facts along with documents.

17. In relation to his health condition, it was submitted that he had undergone a laminectomy (L4 and L5 Vertebrae) twice in 2015 and suffers from serious back pain. He also underwent another surgery in NIMS, Hyderabad, on 09.04.2026. The doctors have advised bed rest and physiotherapy. Given the fact that he is aged about 65 years and considering his medical condition, there is no likelihood of him fleeing from the jurisdiction of the Designated Court, threatening the witnesses and interfering with the fair trial.

18. CONTENTIONS ON BEHALF OF THE NIA:

               i. The contents of the charge sheet were reiterated in support of the impugned order.

               ii. Referring to the gravity of the allegations, it was submitted that the Appellant has committed the alleged offences.

               iii. The material placed before the Court is sufficient to indicate that the Appellant has prima facie committed the alleged offences. Therefore, under Section 43D (5) of the UAPA, no bail can be granted. In this regard, reliance was placed on Gulfisha Fatima vs. State (Govt.of NCT of Delhi) (2026 INSC 2) and Gurwinder Singh vs. State of Punjab (2024 LiveLaw (SC) 100).

               iv. If the Appellant is released on bail, there is likelihood of him fleeing away from the jurisdiction of the Designated Court, influencing and threatening the witnesses and not cooperating with during the trial. Further, he may not cooperate with the Investigating Officer during further investigation.

               v. The learned Designated Court only has 19 cases pending before it. Therefore, there will be no delay in concluding the trial. The trial will be concluded at the earliest.

19. As stated above, the Appellant has been charged under Sections 13, 38, and 39 of the UAPA. For the sake of convenience, the relevant provisions of the UAPA, including the definitions of ‘terrorist act’, ‘unlawful activities’, and ‘unlawful association’, have been extracted below:

               2. Definitions.— (1) In this Act, unless the context otherwise requires—

               (k) “terrorist act” has the meaning assigned to it in section 15, and the expressions “terrorism” and “terrorist” shall be construed accordingly;

               (o) “unlawful activity”, in relation to an individual or association, means any action taken by such individual or association (whether by committing an act or by words, either spoken or written, or by signs or by visible representation or otherwise),—

               (i) which is intended, or supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession; or

               (ii) which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India; or

               (iii) which causes or is intended to cause disaffection against India;

               p) “unlawful association” means any association,—

               (i) which has for its object any unlawful activity, or which encourages or aids persons to undertake any unlawful activity, or of which the members undertake such activity; or

               (ii) which has for its object any activity which is punishable under section 153A (45 of 1860) or section 153B of the Indian Penal Code, or which encourages or aids persons to undertake any such activity, or of which the members undertake any such activity:

               Provided that nothing contained in sub-clause (ii) shall apply to the State of Jammu and Kashmir;

               Section 13: Punishment for unlawful activities.—

               (1) Whoever—

               (a) takes part in or commits, or

               (b) advocates, abets, advises or incites the commission of, any unlawful activity, shall be punishable with imprisonment for a term which may extend to seven years and shall also be liable to fine.

               (2) Whoever, in any way, assists any unlawful activity of any association, declared unlawful under section 3, after the notification by which it has been so declared has become effective under sub-section (3) of that section, shall be punishable with imprisonment for a term which may extend to five years, or with fine, or with both.

               (3) Nothing in this section shall apply to any treaty, agreement or convention entered into between the Government of India and the Government of any other country or to any negotiations therefor carried on by any person authorised in this behalf by the Government of India.

               15. Terrorist Act.—(1) Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security 5 [, economic security,] or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country—

               (a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause—

               (i) death of, or injuries to, any person or persons; or

               (ii) loss of, or damage to, or destruction of, property; or

               (iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country; or

               (iiia) damage to, the monetary stability of India by way of production or smuggling or circulation of high quality counterfeit Indian paper currency, coin or of any other material; or

               (iv) damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or

               (b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or

               (c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or 6 [an international or inter-governmental organization or any other person to do or abstain from doing any act; or] commits a terrorist act.

               Explanation.— For the purpose of this sub-section—

               (a) “public functionary” means the constitutional authorities or any other functionary notified in the Official Gazette by the Central Government as public functionary;

               (b) “high quality counterfeit Indian currency” means the counterfeit currency as may be declared after examination by an authorized or notified forensic authority that such currency imitates or compromises with the key security features as specified in the Third Schedule.

               (2) The terrorist act includes an act which constitutes an offence within the scope of, and as defined in any of the treaties specified in the Second Schedule.

               38. Offence relating to membership of a terrorist organization— (1) A person, who associates himself, or professes to be associated, with a terrorist organization with intention to further its activities, commits an offence relating to membership of a terrorist organization:

               Provided that this sub-section shall not apply where the person charged is able to prove—

               (a) that the organization was not declared as a terrorist organization at the time when he became a member or began to profess to be a member; and

               (b) that he has not taken part in the activities of the organization at any time during its inclusion in the Schedule as a terrorist organization.

               (2) A person, who commits the offence relating to membership of a terrorist organization under sub-section (1), shall be punishable with imprisonment for a term not exceeding ten years, or with fine, or with both.

               39. Offence relating to support given to a terrorist organization—

               (1) A person commits the offence relating to support given to a terrorist organization—

               (a) who, with intention to further the activity of a terrorist organization—

               (i) invites support for the terrorist organization; and

               (ii) the support is not or is not restricted to provide money or other property within the meaning of section 40; or

               (b) who, with intention to further the activity of a terrorist organization, arranges, manages or assists in arranging or managing a meeting which he knows is—

               (i) to support the terrorist organization; or

               (ii) to further the activity of the terrorist organization; or

               (iii) to be addressed by a person who associates or professes to be associated with the terrorist organization; or

               (c) who, with intention to further the activity of a terrorist organization, addresses a meeting for the purpose of encouraging support for the terrorist organization or to further its activity.

               (2) A person, who commits the offence relating to support given to a terrorist organization under sub-section (1) shall be punishable with imprisonment for a term not exceeding ten years, or with fine, or with both.

20. Sections 38 and 39 of the UAPA fall under Chapter VI. Under Section 43D(5) of the UAPA, if a person is accused of committing an offence punishable under Chapter IV or Chapter VI, bail can be granted on satisfying the twin conditions of granting an opportunity of hearing to the public prosecutor and formation of opinion by the court, on perusal of the charge sheet under Section 173 CrPC, that there are reasonable grounds to believe that the accusation is prima facie true. For the sake of convenience, Section 43D(5) of the UAPA is extracted below:

               43D (5): Modified application of certain provisions of the Code.—

               (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.

21. Explaining the scope of enquiry under Section 43D (5) of the UAPA, the Hon’ble Supreme Court in NIA v. Zahoor Ahmad Shah Watali ((2019) 5 SCC 1.), held that the scope of enquiry is restricted to the consideration of the material referred to in the charge sheet. The material should be sufficient to make out reasonable grounds to support the prima facie truth of the allegations. Referring to the provisions of the NDPS Act, 1985, the MCOCA, and the TADA, the Court distinguished between the standard of “prima facie true” and the standard of “not guilty”. The standard of “prima facie true” is lighter when compared to the standard of “not guilty”. The relevant paragraphs are extracted below:

               23. By virtue of the proviso to sub-section (5), it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise. Our attention was invited to the decisions of this Court, which has had an occasion to deal with similar special provisions in TADA and Mcoca. The principle underlying those decisions may have some bearing while considering the prayer for bail in relation to the offences under the 1967 Act as well. Notably, under the special enactments such as TADA, Mcoca and the Narcotic Drugs and Psychotropic Substances Act, 1985, the Court is required to record its opinion that there are reasonable grounds for believing that the accused is “not guilty” of the alleged offence. There is a degree of difference between the satisfaction to be recorded by the Court that there are reasonable grounds for believing that the accused is “not guilty” of such offence and the satisfaction to be recorded for the purposes of the 1967 Act that there are reasonable grounds for believing that the accusation against such person is “prima facie” true. By its very nature, the expression “prima facie true” would mean that the materials/evidence collated by the investigating agency in reference to the accusation against the accused concerned in the first information report, must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence. It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted. In one sense, the degree of satisfaction is lighter when the Court has to opine that the accusation is “prima facie true”, as compared to the opinion of the accused “not guilty” of such offence as required under the other special enactments. In any case, the degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act. Nevertheless, we may take guidance from the exposition in Ranjitsing Brahmajeetsing Sharma [Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, (2005) 5 SCC 294 : 2005 SCC (Cri) 1057] , wherein a three-Judge Bench of this Court was called upon to consider the scope of power of the Court to grant bail. In paras 36 to 38, the Court observed thus : (SCC pp. 316-17)

               “36. Does this statute require that before a person is released on bail, the court, albeit prima facie, must come to the conclusion that he is not guilty of such offence? Is it necessary for the court to record such a finding? Would there be any machinery available to the court to ascertain that once the accused is enlarged on bail, he would not commit any offence whatsoever?

               37. Such findings are required to be recorded only for the purpose of arriving at an objective finding on the basis of materials on record only for grant of bail and for no other purpose.

               38. We are furthermore of the opinion that the restrictions on the power of the court to grant bail should not be pushed too far. If the court, having regard to the materials brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed. The satisfaction of the court as regards his likelihood of not committing an offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. … What would further be necessary on the part of the court is to see the culpability of the accused and his involvement in the commission of an organised crime either directly or indirectly. The court at the time of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite mens rea.”

               And again in paras 44 to 48, the Court observed : (SCC pp. 318-20)

               “44. The wording of Section 21(4), in our opinion, does not lead to the conclusion that the court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the legislature. Section 21(4) of Mcoca, therefore, must be construed reasonably. It must be so construed that the court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in futuro must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence.

               45. It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail.

               46. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. However, while dealing with a special statute like Mcoca having regard to the provisions contained in sub-section (4) of Section 21 of the Act, the court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction. The findings recorded by the court while granting or refusing bail undoubtedly would be tentative in nature, which may not have any bearing on the merit of the case and the trial court would, thus, be free to decide the case on the basis of evidence adduced at the trial, without in any manner being prejudiced thereby.

               47. In Kalyan Chandra Sarkar v. Rajesh Ranjan [Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 : 2004 SCC (Cri) 1977] this Court observed : (SCC pp. 537-38, para 18)

               ‘18. We agree that a conclusive finding in regard to the points urged by both the sides is not expected of the court considering a bail application. Still one should not forget, as observed by this Court in Puran v. Rambilas [Puran v. Rambilas, (2001) 6 SCC 338 : 2001 SCC (Cri) 1124] : (SCC p. 344, para 8)

               “8. … Giving reasons is different from discussing merits or demerits. At the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. … That did not mean that whilst granting bail some reasons for prima facie concluding why bail was being granted did not have to be indicated.”

               We respectfully agree with the above dictum of this Court. We also feel that such expression of prima facie reasons for granting bail is a requirement of law in cases where such orders on bail application are appealable, more so because of the fact that the appellate court has every right to know the basis for granting the bail. Therefore, we are not in agreement with the argument addressed by the learned counsel for the accused that the High Court was not expected even to indicate a prima facie finding on all points urged before it while granting bail, more so in the background of the facts of this case where on facts it is established that a large number of witnesses who were examined after the respondent was enlarged on bail had turned hostile and there are complaints made to the court as to the threats administered by the respondent or his supporters to witnesses in the case. In such circumstances, the court was duty-bound to apply its mind to the allegations put forth by the investigating agency and ought to have given at least a prima facie finding in regard to these allegations because they go to the very root of the right of the accused to seek bail. The non-consideration of these vital facts as to the allegations of threat or inducement made to the witnesses by the respondent during the period he was on bail has vitiated the conclusions arrived at by the High Court while granting bail to the respondent. The other ground apart from the ground of incarceration which appealed to the High Court to grant bail was the fact that a large number of witnesses are yet to be examined and there is no likelihood of the trial coming to an end in the near future. As stated hereinabove, this ground on the facts of this case is also not sufficient either individually or coupled with the period of incarceration to release the respondent on bail because of the serious allegations of tampering with the witnesses made against the respondent.’

               48. In Jayendra Saraswathi Swamigal v. State of T.N. [Jayendra Saraswathi Swamigal v. State of T.N., (2005) 2 SCC 13 : 2005 SCC (Cri) 481] this Court observed : (SCC pp. 21-22, para 16)

               ‘16. … The considerations which normally weigh with the court in granting bail in non-bailable offences have been explained by this Court in State v. Jagjit Singh [State v. Jagjit Singh, (1962) 3 SCR 622 : AIR 1962 SC 253 : (1962) 1 Cri LJ 215] and Gurcharan Singh v. State (UT of Delhi) [Gurcharan Singh v. State (UT of Delhi), (1978) 1 SCC 118 : 1978 SCC (Cri) 41] and basically they are — the nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tampered with; the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case.’”

               24. A priori, the exercise to be undertaken by the Court at this stage—of giving reasons for grant or non-grant of bail—is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage. 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.

22. Following the test in Zahoor Ahmad Shah Watali (supra), the Hon’ble Court in Thwaha Fasal (supra), held as follows:

               26. Therefore, while deciding a bail petition filed by an accused against whom offences under Chapters IV and VI of the 1967 Act have been alleged, the court has to consider whether there are reasonable grounds for believing that the accusation against the accused is prima facie true. If the court is satisfied after examining the material on record that there are no reasonable grounds for believing that the accusation against the accused is prima facie true, then the accused is entitled to bail. Thus, the scope of inquiry is to decide whether prima facie material is available against the accused of commission of the offences alleged under Chapters IV and VI. The grounds for believing that the accusation against the accused is prima facie true must be reasonable grounds. However, the court while examining the issue of prima facie case as required by sub-section (5) of Section 43-D is not expected to hold a mini trial. The court is not supposed to examine the merits and demerits of the evidence. If a charge-sheet is already filed, the court has to examine the material forming a part of charge- sheet for deciding the issue whether there are reasonable grounds for believing that the accusation against such a person is prima facie true. While doing so, the court has to take the material in the charge-sheet as it is.

23. In Gurwinder Singh (supra), summarized the test for grant of bail under Section 43D(5) of the UAPA as follows:

               29. On a textual reading of Section 43-D(5) of the UAP Act, the inquiry that a bail court must undertake while deciding bail applications under the UAP Act can be summarised in the form of a twin-prong test:

               (1) Whether the test for rejection of the bail is satisfied?

               1.1. Examine if, prima facie, the alleged “accusations” make out an offence under Chapter IV or VI of the UAP Act;

               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”.

24. It is relevant to note that in Vernon (supra), the Hon’ble Supreme Court in explaining the test laid down in Zahoor Ahmad Shah Watali (supra), held that while considering the prima facie truth of the allegations under Section 43D(5) of the UAPA, the court shall also do a surface-analysis of the probative value of the evidence. On such surface-analysis if the evidence appears improbable and weak, the Court has the power to grant bail. The relevant paragraph is extracted below:

               36. In the case of Zahoor Ahmad Shah Watali (supra), it has been held that the expression “prima facie true” would mean that the materials/evidence collated by the investigating agency in reference to the accusation against the accused concerned in the charge sheet must prevail, unless overcome or disproved by other evidence, and on the face of it, materials must show complicity of such accused in the commission of the stated offences. What this ratio contemplates is that on the face of it, the accusation against the accused ought to prevail. In our opinion, however, it would not satisfy the prima facie “test” unless there is at least surface-analysis of probative value of the evidence, at the stage of examining the question of granting bail and the quality or probative value satisfies the Court of its worth. In the case of the appellants, contents of the letters through which the appellants are sought to be implicated are in the nature of hearsay evidence, recovered from co-accused. Moreover, no covert or overt terrorist act has been attributed to the appellants in these letters, or any other material forming part of records of these two appeals. Reference to the activities of the accused are in the nature of ideological propagation and allegations of recruitment. No evidence of any of the persons who are alleged to have been recruited or have joined this “struggle” inspired by the appellants has been brought before us. Thus, we are unable to accept NIA’s contention that the appellants have committed the offence relating to support given to a terrorist organization.

25. At this stage, we deem it appropriate to refer to certain paragraphs of Gurwinder Singh (supra) and Gulfisha Fatima (supra) relied on by the learned Additional Solicitor General to contend that in UAPA cases grant of bail is an exception and not the general rule. The following paragraphs of Gurwinder Singh (supra) were relied upon on behalf of the NIA:

               26. The conventional idea in bail jurisprudence vis-à-vis ordinary penal offences that the discretion of courts must tilt in favour of the oft-quoted phrase — “bail is the rule, jail is the exception” — unless circumstances justify otherwise — does not find any place while dealing with bail applications under the UAP Act. The “exercise” of the general power to grant bail under the UAP Act is severely restrictive in scope. The form of the words used in the proviso to Section 43-D(5)— “shall not be released” in contrast with the form of the words as found in Section 437(1)CrPC — “may be released” — suggests the intention of the legislature to make bail, the exception and jail, the rule.

               27. The courts are, therefore, burdened with a sensitive task on hand. In dealing with bail applications under the UAP Act, the courts are merely examining if there is justification to reject bail. The “justifications” must be searched from the case diary and the final report submitted before the Special Court. The legislature has prescribed a low, “prima facie” standard, as a measure of the degree of satisfaction, to be recorded by the Court when scrutinising the justifications [materials on record]. This standard can be contrasted with the standard of “strong suspicion”, which is used by courts while hearing applications for “discharge”. In fact, the Supreme Court inZahoor Ahmad Watali [NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1 : (2019) 2 SCC (Cri) 383] has noticed this difference, where it said : (SCC p. 24, para 23)

               “23. … In any case, the degree of satisfaction to be recorded by the court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act.”

               (emphasis supplied)

               28. In this background, the test for rejection of bail is quite plain. Bail must be rejected as a “rule”, if after hearing the Public Prosecutor and after perusing the final report or case diary, the court arrives at a conclusion that there are reasonable grounds for believing that the accusations are prima facie true. It is only if the test for rejection of bail is not satisfied — that the courts would proceed to decide the bail application in accordance with the “tripod test” (flight risk, influencing witnesses, tampering with evidence). This position is made clear by sub-section (6) of Section 43-D, which lays down that the restrictions, on granting of bail specified in sub-section (5), are in addition to the restrictions under the Code of Criminal Procedure or any other law for the time being in force on grant of bail.

26. Likewise, the following paragraphs Gulfisha Fatima (supra) were relied upon by the learned Additional Solicitor General:

               78. The cumulative effect of the statutory scheme and the jurisprudence of this Court is that Section 43D(5) operates as a gate keeping provision. It requires the Court to undertake a focused, accused-specific, and legally disciplined inquiry, confined to determining whether the prosecution material, taken at its highest, satisfies the statutory threshold of prima facie truth.

               79. Any departure from this calibrated approach, whether by converting the bail stage into a forum for adjudicating defences or by treating the invocation of the statute as determinative of the outcome, would unsettle the careful balance struck by Parliament. The provision demands neither mechanical denial nor casual grant of bail, but a principled application of the statutory standard within its clearly defined limits.

               80. From the foregoing discussion, certain propositions governing the application of Section 43D(5) emerge with clarity. First, the provision embodies a deliberate legislative departure from ordinary bail jurisprudence, premised upon the distinctive nature of offences under Chapters IV and VI of the Act. Second, the expression “prima facie true” mandates a threshold judicial inquiry which is neither perfunctory nor adjudicatory, requiring the Court to examine whether the prosecution material, taken at face value, discloses the essential statutory ingredients of the alleged offence. Third, the inquiry is necessarily accused- specific, directed to the role and attribution qua the individual, and does not admit of collective or undifferentiated treatment merely because allegations arise from a common transaction or conspiracy. Fourth, the bail stage under Section 43D(5) is not a forum for evaluating defences, weighing evidence, or conducting a mini- trial; judicial restraint at this stage is not an abdication of duty but a fulfilment of the statutory mandate. These propositions, read together, define the contours of judicial power and responsibility under the provision.

               81. The correct application of Section 43D(5), therefore, requires the Court to undertake a structured inquiry confined to the following:

               i. whether the prosecution material, accepted as it stands, discloses a prima facie case satisfying the statutory ingredients of the offence alleged;

               ii. whether the role attributed to the accused reflects a real and meaningful nexus to the unlawful activity or terrorist activity proscribed under the Act, as distinguished from mere association or peripheral presence; and iii. whether the statutory threshold is crossed qua the individual accused, without embarking upon an assessment reserved after full- fledged trial.

               82. Where these requirements are met, the statutory restraint on the grant of bail must operate with full force; where they are not, the embargo stands lifted. This approach preserves the legislative purpose of the Act, and ensures that the exceptional nature of the bail regime under Section 43D(5) is neither diluted by overreach nor distorted by mechanical application.

               83. The discussion thus far has been directed to the manner in which the statutory threshold under Section 43D(5) is to be applied at the stage of bail. That inquiry sets out how the Court is to examine the prayer for bail under a special enactment. The inquiry must now turn to what the accusation is that is sought to be tested against that threshold. This necessarily requires an examination of the statutory meaning and scope of a “terrorist act” under the Act.

27. According to us, the decisions relied upon by the learned Additional Solicitor General to contend that bail is an exception in UAPA cases may not be correct. In this regard, reference may be made to the decision of Syed Iftikhar Andrabi v. National Investigation Agency (2026 SCC OnLine SC 881.), which doubted the correctness of the Gurwinder Singh (supra) and Gulfisha Fatima (supra). The Court held that even in UAPA cases – bail is the rule and jail is the exception. The relevant paragraphs are extracted below:

               27.6. The position of law emerging from Najeeb and Sk. Javed Iqbal is therefore clear: Watali cannot be invoked to justify indefinite incarceration of the accused under the UAP Act. For the aforesaid reasons, the attempt in Gurwinder to read Watali as laying down a general rule of denial of bail notwithstanding the period of incarceration is difficult to reconcile with this Court’s own subsequent clarification of what the ratio in Watali actually meant.

               27.7. We also note that the Bench in Gurwinder formulated the so-called ‘twin-prong test’ governing grant of bail under the UAP Act. It held that the inquiry under Section 43-D(5) must proceed in two sequential stages: first, whether the accusation is prima facie true; and second, only if the first question is answered in favour of the accused, whether ordinary bail considerations, such as, flight risk, tampering with evidence, or influencing witnesses, justify release. If the first stage of this twin-prong test is satisfied against the accused, bail becomes absolutely impermissible.

               27.8. With respect, this test flows neither from the text of Section 43-D(5) of the UAP Act nor from Najeeb. In fact, on the contrary, it is in teeth of Najeeb which categorically stated that Section 43-D(5) of the UAP Act provides no more than another possible ground, namely that the accusations against the accused are prima facie true, for the competent court to refuse bail, in addition to the well-settled considerations like possibility of tampering with evidence, influencing the witnesses, or the accused evading the trial by absconding etc. If this twin-prong test is accepted, the State need only satisfy a low prima facie threshold while the trial may continue for years with the result that pre-trial incarceration begins to acquire a post-trial punitive character and even then, no court could ever grant bail no matter the length of period of such incarceration because the case stood prima facie made out against the accused. A plain reading of Najeeb will show that it was trying to prevent precisely this possibility from arising when it cautioned that Section 43-D(5) must not become ‘the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.

               35. The often invoked phrase ‘bail is the rule and jail is the exception’ is not merely an empty statutory slogan flowing from the CrPC as Gurwinder has stated. It is a constitutional principle flowing from Articles 21 and 22 of the Constitution and the presumption of innocence which is the cornerstone of any 􀀀ivilized society governed by the rule of law. Statutes may undoubtedly calibrate the manner in which that principle is applied, particularly in cases involving national security or terrorist offences for which the UAP Act is meant, but those cannot altogether invert the constitutional relationship between liberty and detention. The statutory embargo of Section 43-D(5) must remain a circumscribed restriction that operates subject to the guarantee of Articles 21 and 22 of the Constitution. Therefore, we have no manner of doubt in stating that even under the UAP Act, ‘bail is the rule and jail is the exception’; of course, in an appropriate case, bail can be denied having regard to the facts of that particular case.

               36. As we have noted above, several subsequent decisions of this Court, rendered after Gurwinder, have continued to apply the approach articulated in Najeeb in granting bail under the UAP Act on grounds of prolonged incarceration, gross delay in conclusion of trial, and the absence of any realistic possibility of the trial concluding in the near future.

               37. The logic underlying all these judgments traces back to Najeeb, which is now the law of the land governing the grant of bail under the UAP Act in a situation of prolonged detention. In that context, it is noteworthy that while Gulfisha Fatima relied on Gurwinderto adopt a narrower reading of Najeeb, neither Gulfisha Fatima nor Gurwinder engage with this subsequent line of authority of case law.

               38. Thus it is clear beyond doubt that the preference for bail, or the often invoked principle ‘bail is the rule and jail is the exception’ flows from the constitutional primacy of personal liberty under Article 21 and, therefore, cannot be displaced by legislation.

               39. In that spirit, we make it clear that Najeeb is binding law entitled to the protection of stare decisis. It cannot be diluted, circumvented, or disregarded by trial courts, High Courts or even by Benches of lower strength of this Court.

               40. We do not want to join issue any further with the two-Judge Bench either in Gurwinder Singh or in Gulfisha Fatima. As noted supra, Gurwinder Singh has already been explained in Sheikh Javed Iqbal and in Javed Gulam Nabi Shaikh, reiterated in Arvind Dham, this Court has categorically held that Article 21 applies irrespective of the nature of the offence. Ideally, more serious the accusations are, the speedier the trial should be.

               41. However, we need to keep in mind one important over-riding consideration and we reiterate this. While Gurwinder Singh and Gulfisha Fatima are by Benches of two Hon’ble Judges, K.A. Najeeb is a judgment by three Hon’ble Judges. It is evident from a reading of the two judgments in Gurwinder Singh and Gulfisha Fatima that the two-Judge Bench has made a clear departure from the ratio laid down in K.A. Najeeb. Judicial discipline and certainty demands that Benches of smaller strength are mindful of the decisions rendered by larger Benches and are bound to follow the same. If the smaller Benches are unable to agree with the ratio laid down by the larger Bench then the proper and the only course of action open is to make a reference to the Hon’ble Chief Justice of India for placing the matter for consideration by a still larger Bench. Being in a combination of two Judges, we are bound by the ratio laid down by the three-Judge Bench in K.A. Najeeb. We say this and no more.

               27a. In addition to the conditions under Section 43D(5) of the UAPA, the courts shall also consider other factors while granting bail. These factors include (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. In this regard, reference may be made to the Hon’ble Supreme Court’s decisions in Mahipal vs Rajesh Kumar @ Polia ((2020) 2 SCC 118), Ram Govind Upadhyay vs Sudarshan Singh ((2002) 3 SCC 598) and Prasanta Kumar Sarkar vs Ashis Chatterjee ((2010) 14 SCC 496).

28. Coming to the merits of the case, the Appellant has been accused of committing offences under Section 152 of the BNS and Sections 13, 38, and 39 of the UAPA. As the statutory bar under Section 43D(5) of the UAPA applies to offences under Sections 38 and 39, we shall consider the said offences first.

29. Section 38 deals with the offence relating to the membership of a terrorist organization. It punishes a person who associates with a terrorist organization or professes to be associated with a terrorist organization with the intention to further its activities. The essential ingredients of the said provision are proof of association coupled with an intention to promote and profess the ideology of the terrorist organization. It is pertinent to note that the prosecution shall establish that the accused was actively involved propagating, professing, and furthering the cause of the terrorist organization. There shall be proof of the accused’s direct involvement in promoting terrorist activity.

30. Likewise, Section 39 deals with the offence relating to the support given to a terrorist organization. Both Sections 39 (a) and 39 (b) state that intention to further the activity of a terrorist organization is a sine qua non to charge a person with the offence of supporting a terrorist organization. There shall be sufficient proof of the intention and the proof of active support to the terrorist organization.

31. It is apt to note that explaining the scope of Sections 38 and 39 of the UAPA, the Hon’ble Supreme Court in Thwaha Fasal (supra), held that mere association with a terrorist organization is insufficient. The Court held that the existence of mens rea determines the applicability of Sections 38 & 39. Further, it was held that the mens rea can be determined by commission of any overt act supporting the terrorist organization. The relevant paragraphs are extracted below:

               16. On plain reading of Section 38, the offence punishable therein will be attracted if the accused associates himself or professes to associate himself with a terrorist organization included in First Schedule with intention to further its activities. In such a case, he commits an offence relating to membership of a terrorist organization covered by Section 38. The person committing an offence under Section 38 may be a member of a terrorist organization or he may not be a member. If the accused is a member of terrorist organization which indulges in terrorist act covered by Section 15, stringent offence under Section 20 may be attracted. If the accused is associated with a terrorist organization, the offence punishable under Section 38 relating to membership of a terrorist organization is attracted only if he associates with terrorist organization or professes to be associated with a terrorist organization with intention to further its activities. The association must be with intention to further the activities of a terrorist organization. The activity has to be in connection with terrorist act as defined in Section 15.

               17. Clause (b) of proviso to sub-section (1) of Section 38 provides that if a person charged with the offence under sub-section (1) of Section 38 proves that he has not taken part in the activities of the organization during the period in which the name of the organization is included in the First Schedule, the offence relating to the membership of a terrorist organization under sub-section (1) of Section 38 will not be attracted. The aforesaid clause (b) can be a defence of the accused. However, while considering the prayer for grant of bail, we are not concerned with the defence of the accused.

               18. Section 39 deals with the offences relating to support given to a terrorist organization. It covers three kinds of offences under clauses (a), (b) and (c) of sub-section (1) of Section 39. The offences punishable under clauses (a), (b) and (c) of sub-section (1) of Section 39 are attracted only when the actions incorporated therein are done with intention to further the activities of a terrorist organization. As observed earlier, the activities must have some connection with terrorist act. Clauses (a), (b) and (c) are attracted only if actions/activities specified therein are done with intention to further the activities of a terrorist organization.

               19. Thus, the offence under sub-section (1) of Section 38 of associating or professing to be associated with the terrorist organization and the offence relating to supporting a terrorist organization under Section 39 will not be attracted unless the acts specified in both the Sections are done with intention to further the activities of a terrorist organization. To that extent, the requirement of mens rea is involved. Thus, mere association with a terrorist organization as a member or otherwise will not be sufficient to attract the offence under Section 38 unless the association is with intention to further its activities. Even if an accused allegedly supports a terrorist organization by committing acts referred to in clauses (a) to (c) of sub-section (1) of Section 39, he cannot be held guilty of the offence punishable under Section 39 if it is not established that the acts of support are done with intention to further the activities of a terrorist organization. Thus, intention to further activities of a terrorist organization is an essential ingredient of the offences punishable under Sections 38 and 39 of the 1967 Act.

               XXXX

               39. Now the question is whether on the basis of the materials forming part of the charge-sheet, there are reasonable grounds for believing that accusation of commission of offences under Sections 38 and 39 against Accused 1 and 2 is true. As held earlier, mere association with a terrorist organizationis not sufficient to attract Section 38 and mere support given to a terrorist organization is not sufficient to attract Section 39. The association and the support have to be with intention of furthering the activities of a terrorist organization. In a given case, such intention can be inferred from the overt acts or acts of active participation of the accused in the activities of a terrorist organization which are borne out from the materials forming a part of charge-sheet. At formative young age, Accused 1 and 2 might have been fascinated by what is propagated by CPI (Maoist). Therefore, they may be in possession of various documents/books concerning CPI (Maoist) in soft or hard form.

               40. Apart from the allegation that certain photographs showing that the accused participated in a protest/gathering organized by an organization allegedly linked with CPI (Maoist), prima facie there is no material in the charge-sheet to project active participation of Accused 1 and 2 in the activities of CPI (Maoist) from which even an inference can be drawn that there was an intention on their part of furthering the activities or terrorist acts of the terrorist organization. An allegation is made that they were found in the company of Accused 3 on 30-11-2019. That itself may not be sufficient to infer the presence of intention. But that is not sufficient at this stage to draw an inference of presence of intention on their part which is an ingredient of Sections 38 and 39 of the 1967 Act. Apart from the fact that overt acts on their part for showing the presence of the required intention or state of mind are not borne out from the charge-sheet, prima facie, their constant association or support of the organization for a long period of time is not borne out from the charge-sheet.

32. Reiterating the essentiality of mens rea under Sections 38 and 39 of the UAPA, the Hon’ble Supreme Court in Vernon v. State of Maharashtra, [(2023) 15 SCC 56], held that there shall be proof of continued membership or association. Further, it was held that a person who is a mere associate or merely professes to be associated with a terrorist organization cannot be charged with Sections 38 and 39 of the UAPA. There shall be sufficient proof that the accused had the intention to be involved in a Terrorist Act. Mere ideological propagation is insufficient to charge a person under Sections 38 and 39 of the UAPA. The relevant paragraphs are extracted below:

               40. This judgment has not been interfered with by this Court and we also affirm this interpretation given to Section 20 of the 1967 Act for testing as to who would be a member of terrorist gang or terrorist organisation. Moreover, no material has been demonstrated by the NIA before us that the appellants are members of the terrorist organization. AF's involvement with IAPL as a frontal organization of the Communist Party of India (Maoist) is sought to be established, and that has been referred to in the charge-sheet as well. But the link between IAPL and the CPI (Maoist) has not been clearly demonstrated through any material. Reference to AF and VG as members of the CPI (Maoist) appears from the statement of protected witness, but that link is made in relation to events between the years 2002-2007, before the organization was included in the First Schedule to the 1967 Act. No evidence of continued membership after the party was classified as a terrorist organizationhas been brought to our notice. Nor is there any reliable evidence to link IAPL with CPI (Maoist) as its frontal organisation. We have already dealt with the position of the appellants vis-à-vis terrorist acts in earlier paragraphs of this judgment and we prima facie do not think that Section 20 can be made applicable against the appellants at this stage of the proceeding, on the basis of available materials.

               41. “Terrorist act” as defined under Section 2(k) of the 1967 Act carries the meaning assigned to it in Section 15. This section also stipulates that the expressions “terrorism” and “terrorist” shall be construed accordingly. This implies construction of these two expressions in the same way as has been done in Section 15.

               42. “Terrorist organization” has been independently defined in Section 2(m) to mean an organization listed in the First Schedule or an organization operating under the same name as an organization so listed. But so far as the word “terrorist” is concerned, in this section also, the interpretation thereof would be relatable to the same expression as used in Section 15. It is one of the basic rules of statutory construction that an expression used in different parts of a statute shall ordinarily convey the same meaning — unless contrary intention appears from different parts of the same enactment itself. We do not find any such contrary intention in the 1967 Act.

               43. Section 38 of the 1967 Act carries the heading or title “Offence relating to membership of a terrorist organization”. As we have already observed, a terrorist act would have to be construed having regard to the meaning assigned to it in Section 15 thereof. We have given our interpretation to this provision earlier. “Terrorist organization” [as employed in Section 2(m)], in our opinion is not a mere nomenclature and this expression would mean an organization that carries on or indulges in terrorist acts, as defined in said Section 15. The term “terrorism”, in view of the provisions of Section 2(k) of the said Act, ought to be interpreted in tandem with what is meant by “terrorist act” in Section 15 thereof.

               44. In this context, to bring the appellants within the fold of Section 38 of the 1967 Act, the prosecution ought to have prima facie established their association with intention to further the said organization’s terrorist activities. It is only when such intention to further the terrorist activities is established prima facie, the appellants could be brought within the fold of the offence relating to membership of a terrorist organization. To bring within the scope of Section 38 of the 1967 Act, it would not be sufficient to demonstrate that one is an associate or someone who professes to be associated with a terrorist organization. But there must be intention to further the activities of such organization on the part of the person implicated under such provision. But the same line of reasoning in respect of membership of a terrorist organization under Section 20, ought to apply in respect of an alleged offender implicated in Section 38 of the 1967 Act. There must be evidence of there being intention to be involved in a terrorist act. So far as the appellants are concerned, at this stage there is no such evidence before us on which we can rely.

               45. In three decisions of this Court, Hitendra Vishnu Thakur v. State of Maharashtra [Hitendra Vishnu Thakurv. State of Maharashtra, (1994) 4 SCC 602 : 1994 SCC (Cri) 1087] , Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya [Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya, (1990) 4 SCC 76 : 1991 SCC (Cri) 47] and Usmanbhai Dawoodbhai Memon v. State of Gujarat [Usmanbhai Dawoodbhai Memon v. State of Gujarat, (1988) 2 SCC 271 : 1988 SCC (Cri) 318] , the manner in which stringent provisions of a statute ought to be interpreted has been laid down. In all the three authorities, observation of this Court has been that the court ought to carefully examine every case, before making an assessment if the Act would apply or not. When the statutes have stringent provisions the duty of the court would be more onerous. Graver the offence, greater should be the care taken to see that the offence would fall within the four corners of the Act. Though these judgments were delivered while testing similar rigorous provisions under the Terrorist and Disruptive Activities (Prevention) Act, 1987, the same principle would apply in respect of the 1967 Act as well.

               46. In Zahoor Ahmad Shah Watali [NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1 : (2019) 2 SCC (Cri) 383] , it has been held that the expression “prima facie true” would mean that the materials/evidence collated by the investigating agency in reference to the accusation against the accused concerned in the charge-sheet must prevail, unless overcome or disproved by other evidence, and on the face of it, materials must show complicity of such accused in the commission of the stated offences. What this ratio contemplates is that on the face of it, the accusation against the accused ought to prevail. In our opinion, however, it would not satisfy the prima facie “test” unless there is at least surface-analysis of probative value of the evidence, at the stage of examining the question of granting bail and the quality or probative value satisfies the court of its worth. In the case of the appellants, contents of the letters through which the appellants are sought to be implicated are in the nature of hearsay evidence, recovered from co-accused. Moreover, no covert or overt terrorist act has been attributed to the appellants in these letters, or any other material forming part of records of these two appeals. Reference to the activities of the accused are in the nature of ideological propagation and allegations of recruitment. No evidence of any of the persons who are alleged to have been recruited or have joined this “struggle” inspired by the appellants has been brought before us. Thus, we are unable to accept NIA's contention that the appellants have committed the offence relating to support given to a terrorist organization.

               47. The second set of materials include the witness statements. There also no covert or overt act of terrorism has been attributed to the appellants by the three witnesses. We have dealt with the summary of their statements earlier in this judgment. We have also observed earlier that mere possession of the literature, even if the content thereof inspires or propagates violence, by itself cannot constitute any of the offences within Chapters IV and VI of the 1967 Act.

               48. We have already analysed Sections 38 and 39 of the 1967 Act. The interpretation given by us to the phrase “intention to further activities” of terrorist organization could also apply in the same way in relation to Section 39 of the same statute. There has been no credible evidence against the appellants of commission of any terrorist act or enter into conspiracy to do so to invoke the provisions of Section 43-D(5) of the 1967 Act.

33. In the present case, the material placed before us is, prima facie, insufficient to establish that the accused has committed the offences under Sections 38 and 39 of the UAPA. The allegations even if accepted at face value would only amount to propagation of an ideology. No sufficient evidence has been adduced to indicate that the Appellant had intention to commit or support a terrorist activity. Further, nothing has been placed before this Court to indicate if ABMS, the organization which had organized the event, has been declared as a terrorist organization. In any case, the aforesaid allegations made by the NIA are triable issues, which shall be dealt with during the trial. Therefore, we hold that the bar under Section 43D(5) of the UAPA is inapplicable to the present case to deny bail to the Appellant.

34. Based on the material placed before this Court, we, prima facie, hold that the ingredients of the other offences alleged against the Appellant, i.e., Section 152 of the BNS and Section 13 of the UAPA, are not satisfied. We have perused the transcript of the speech. Prima facie, the said speech is insufficient to be termed as an act which excites or attempts to excite armed rebellion or encourage separatist activities or endanger the sovereignty, unity, or integrity of India. As stated above, the speech and the allegations against the Appellant only seem to be propagation or support towards an ideology. The question whether the Appellant has committed the offences is to be decided during the trial. The findings rendered by us are only for the purpose of consideration of granting bail to the Appellant.

35. In relation to the pending cases, it was submitted on behalf of the Appellant that he was acquitted in Cr.No.822 of 2004 of Police Station KPHB Colony, Cyberabad. He is not an accused in Cr.No.169 of 2016 of Mulugu Police Station. In Cr.Nos.382 of 2018 and 472 of 2018, the alleged offences pertain to the participation of the Appellant in the Assembly and Parliament elections. In Cr.No.331 of 2023 of Yellareddypet Police Station, Rajanna Sircilla District, the Investigating Officer filed a report stating that the Appellant is not an accused. The Appellant filed documents in proof of the same.

36. Apart from the merits of the case, considering the medical condition of the Appellant, this Court holds that the Appellant deserves to be enlarged on bail under Article 21 of the Constitution of India.

37. It is trite that statutory law does not prevail over constitutional law. The conditions for grant of bail under Section 43D(5) of the UAPA cannot override the fundamental rights incorporated in Part III of the Constitution of India. This Court, in appropriate cases, can grant bail to a person accused of offences under Chapters IV and VI of the UAPA. Long incarceration and deteriorating health are grounds which may be considered while granting bail. Constitutional Courts are duty bound to ensure that a person’s right to life and personal liberty are not curtailed.

38. In this regard, reference may be made to a three-judge bench decision in Union of India v. K.A Najeeb ((2021) 3 SCC 713), wherein the Hon’ble Supreme Court held that rights of the accused under Article 21 of the Constitution of India shall guide the courts while considering a bail application. The stringent statutory provisions do not preclude a constitutional court to grant bail. The relevant paragraphs are extracted below:

               17. It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings, the courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.

39. In Shoma Kanti Sen (supra), the Hon’ble Supreme Court rejecting the contention that bail is not a fundamental right held that, in appropriate cases to protect a person’s life and liberty, an accused can be granted bail under Article 21 of the Constitution of India. The relevant paragraphs are extracted below:

               45. Relying on this judgment, Mr Nataraj submits that bail is not a fundamental right. Secondly, to be entitled to be enlarged on bail, an accused charged with offences enumerated in Chapters IV and VI of the 1967 Act, must fulfill the conditions specified in Section 43-D(5) thereof. We do not accept the first part of this submission. This Court has already accepted the right of an accused under the said offences of the 1967 Act to be enlarged on bail founding such right on Article 21 of the Constitution of India. This was in Najeeb [Union of India v. K.A. Najeeb, (2021) 3 SCC 713] , and in that judgment, long period of incarceration was held to be a valid ground to enlarge an accused on bail in spite of the bail-restricting provision of Section 43-D(5) of the 1967 Act.

               46. Pre-conviction detention is necessary to collect evidence (at the investigation stage), to maintain purity in the course of trial and also to prevent an accused from being fugitive from justice. Such detention is also necessary to prevent further commission of offence by the same accused. Depending on gravity and seriousness of the offence alleged to have been committed by an accused, detention before conclusion of trial at the investigation and post charge-sheet stage has the sanction of law broadly on these reasonings. But any form of deprival of liberty results in breach of Article 21 of the Constitution of India and must be justified on the ground of being reasonable, following a just and fair procedure and such deprival must be proportionate in the facts of a given case. These would be the overarching principles which the law courts would have to apply while testing prosecution's plea of pre-trial detention, both at investigation and post charge-sheet stage.

40. The Appellant has been suffering with serious ailments. He has undergone multiple surgeries to his spine. Despite the stringent conditions under Section 43D(5), due to his medical condition and in light of Article 21 of the Constitution of India, this Court holds that the Appellant is entitled to bail. The Hon’ble Supreme Court in P. Varavara Rao v. National Investigation Agency12, granted bail to a person accused under UAPA on the ground of old age and medical grounds. The relevant paragraph is extracted below:

               16. We need not go into the rival contentions as some of the notable factual aspects which emerge from the record are:

               “a. The appellant is 82 years of age.

               b. He was taken in custody initially on 28.08.2018 and has actually spent 2½ years of custody, leaving aside the period for which benefit of bail was granted pursuant to the order dated 22.02.2021.

               c. Though the charge-sheet has been filed, some of the accused are still not apprehended and the matter has not even been taken up for consideration whether the charges need to be framed against the accused who are presently before the Trial Court or not.

               d. Various applications preferred by the accused seeking discharge are still pending consideration.

               e. The medical condition of the appellant has not improved to such an extent, over a period of time, that the facility of bail which was granted earlier be withdrawn. 17. Considering the totality of circumstances, in our view, the appellant is entitled to the relief of permanent bail on medical grounds.

41. In National Legal Services Authority v. Union of India (2026 SCC OnLine SC 1341), the Supreme Court held that Indian constitutional jurisprudence recognizes grant of bail on medical condition. The relevant paragraphs are extracted below:

               33. The constitutional jurisprudence of this Court consistently recognized that age and medical condition are relevant and often decisive considerations in matters of bail and premature release. In Dr. P. Varavara Rao v. National Investigation Agency, permanent bail was granted on medical grounds to an elderly prisoner aged 82 years. In Rasik Chandra Mondal v. State of West Bengal11, interim release was directed for a centenarian convict, acknowledging the challenges posed by advanced age. These decisions affirm that incarceration, when it results in avoidable physical suffering and denial of medical care, ceases to be a lawful restriction and becomes constitutionally impermissible. They underscore a settled constitutional principle: that punishment must not become retributive suffering divorced from proportionality, humanity and purpose.

               34. Furthermore, the Law Commission of India, in its 268th Report, reinforced this constitutional position by advocating a liberal and humane approach to bail, particularly for prisoners of advanced age or suffering from serious illness. The Report expressly recommends mandatory bail where the accused is suffering from a life-threatening condition and adequate medical care is unavailable in custody, recognizing that continued detention in such circumstances only compounds suffering and serves no legitimate penological purpose. These recommendations reflect an evolving constitutional understanding of bail not merely as a procedural discretion, but as a substantive safeguard intrinsically linked to the right to live with dignity under Article 21 of the Constitution of India.

42. As discussed supra, the Appellant has undergone spinal cord surgery on three occasions. The latest surgery was dated 09.04.2026. Doctors advised him to take bed rest and also physiotherapy for a period of two months. According to the NIA, there is no facility of physiotherapy in the jail. During the pendency of the present appeal, he was enlarged on interim bail and he continues to remain on such bail. No allegation has been made stating that he violated any bail conditions.

43. As discussed supra, after surrender before the Superintendent of Police, Warangal, in the year 1986, appellant started living in mainstream. He participated in elections reposing confidence in the democracy. There is no allegation against him that he has committed any offence which is detrimental to the sovereignty and security of the country before delivery of the speech on 18.10.2025.

44. In the light of the aforesaid discussion, we are of the view that the appellant is entitled for bail on imposition of certain conditions.

45. Accordingly, this Criminal Appeal is allowed. The order dated 24.03.2026 in Crl.M.P. No.162 of 2026 in Spl.S.C.No.01 of 2026 arising out of R.C. No.04/2025/NIA/HYD of P.S. NIA, Hyderabad, passed by learned IV Additional Sessions Court – cum – Special Court for NIA Cases, at Nampally, Hyderabad, is set aside. The appellant - Accused No.1 is enlarged on bail on imposition of the following conditions:-

               i. The appellant – Accused No.1 shall execute a personal bond for Rs.25,000/- (Rupees Twenty-Five Thousand Only) with two (02) sureties for a likesum each to the satisfaction of IV Additional Metropolitan Sessions Judge – cum – Special court for NIA Cases, Nampally, Hyderabad;

               ii. The appellant - accused No.1 shall report before the Station House Officer, KPHB colony, Cyberabad, once in a week i.e., on every Friday between 10.00 A.M. and 5.00 P.M. until further orders;

               iii. He shall not commit similar or any other offences during bail period;

               iv. He shall not threat, intimidate or influence the prosecution witnesses including protected witnesses;

               v. He shall not interfere with the trial in Spl.S.C.No.01 of 2026 in any manner directly or indirectly;

               vi. He shall surrender his Passport, if any, if not surrendered before the Special Court; and

               vii. He shall cooperate with the Special Court in disposal of the aforesaid Spl.S.C.No.1 of 2026 in accordance with law as expeditiously as possible.

               viii. If the appellant violates any of the aforesaid conditions, the NIA is at liberty to seek cancellation of the bail.

As a sequel, miscellaneous applications, if any, pending in the appeal, shall stand closed.