The Delhi High Court has granted bail to Mohd. Shahzad Kamal , an accused in a UAPA case concerning an alleged ISIS-affiliated terror module, after noting that he had remained in custody for more than five years and that the trial was not likely to conclude any time soon.

A Division Bench of Justice Navin Chawla and Justice Arun Bhardwaj observed that only the statement of prosecution witness PW-42 was being recorded out of a total of 161 witnesses cited by the prosecution.
The Court also noted that, at the present stage, there was no positive evidence establishing that the alleged incriminating chats relied upon by the prosecution had originated from Shahzad or were addressed to him.
The Bench was hearing Shahzad's appeal against the May 29, 2024 order of the Special NIA Court refusing him bail. He had been arrested on August 31, 2021 and was arrayed as accused No. 18 in the case.
According to the prosecution, Shahzad was allegedly part of a criminal conspiracy with other accused persons to commit terrorist acts and was an active member of “Harkat-Ul-Harb-E-Islam”, which the NIA described as an ISIS-affiliated terrorist gang.
The NIA alleged that Shahzad had been involved in arranging funds for furtherance of the group's terrorist activities and had provided funds on multiple occasions between February 2017 and January 2019 to co-accused Muhammad Absar.
The prosecution further alleged that Shahzad was in constant communication with co-accused Md. Saqib Iftekhar through Facebook and WhatsApp, and that conversations recovered from Saqib's device concerned funds allegedly to be transferred or provided by Shahzad for what the prosecution described as a “Jihadi purpose.”
The prosecution also relied upon alleged radicalising material recovered from chats, including messages attributed to Shahzad, and alleged that he supported the “Tehreek-e-Azadi Jammu Kashmir” and had been radicalised to the ideology of jihad.
The NIA's case further relied upon a disclosure statement of co-accused Absar, recovery of ₹30,000 in cash, statements of prosecution witnesses and call-detail records. The prosecution claimed that the ₹30,000 recovered pursuant to Absar's disclosure had been sent by Shahzad from Saudi Arabia and was intended for terrorist activities.
Shahzad was charged under Section 121 of the IPC and Sections 17, 18, 39 and 40 of the UAPA.
'Trial Is Not Likely To End Any Time Soon'
Considering the bail plea, the High Court noted that Shahzad had been in custody since August 31, 2021, for more than five years, while only PW-42 was being examined out of 161 prosecution witnesses.
The Court observed that the trial was therefore “not likely to end any time soon.” It also took note of the fact that some co-accused, including Saqib Iftekhar, had already been granted bail.
On the alleged incriminating chats, the Bench put a specific query to the NIA as to whether there was evidence showing that the telephone number with which co-accused Saqib was exchanging the chats actually belonged to Shahzad.
The NIA submitted that this would be established through the statements of witnesses and material against Saqib.
The Bench, however, recorded: "Presently we do not see any positive evidence" of the incriminating chats having originated from the appellant or being addressed to him. The Court clarified that a final conclusion on the issue could only be reached after the prosecution led its entire evidence.
Court Examines Witness Statements On Alleged Terror Funding
The Bench also considered the allegation that Shahzad had funded Harkat-Ul-Harb-E-Islam. It examined the statements of PW-36 Mohd. Afsaar and Protected Witness D/PW-37, who had already been examined during the trial, as well as the Section 161 CrPC statement of PW-17 Mohd. Habib.
The Court deliberately refrained from giving a detailed account of their statements, observing that doing so could influence the trial court.
However, after perusing the material, the Bench held that it did not find it to be a case where Shahzad should continue to remain in custody when the trial was not likely to conclude in the near future.
UAPA Bail Restrictions And Right To Speedy Trial
The High Court considered the Supreme Court's judgments concerning the interaction between Article 21 of the Constitution and Section 43D(5) of the UAPA, particularly in cases involving prolonged incarceration.
The Bench noted that constitutional courts retain the power to grant bail where continued incarceration raises concerns under the fundamental right to life and personal liberty, even in cases governed by the stringent UAPA bail regime.
At the same time, the Court recognised that delay cannot automatically result in bail in every UAPA case. It noted that the inquiry must remain contextual, taking into account factors including the nature of allegations, the accused's role, the stage and realistic trajectory of the trial, causes of delay, prima facie material and risks associated with release.
The Bench also noted that the issue concerning the interplay between Article 21 and Section 43D(5) had been referred to a larger Bench of the Supreme Court in Tasleem Ahmed v. State, Govt. of NCT of Delhi.
Despite that reference, the High Court held that it was required to decide the bail appeal in accordance with the law presently binding upon it.
Delhi HC Sets Aside Bail Rejection
The Bench ultimately held that the trial court's order rejecting bail could not be sustained. It accordingly set aside the impugned order and directed that Shahzad be released on bail.
The bail is subject to several conditions. Shahzad has been directed to furnish a personal bond of ₹50,000 with two sureties of the same amount, surrender his passport, and not leave the country without prior permission of the trial court.
He has also been directed not to leave Hapur, except for attending the trial in Delhi or reporting to the NIA office as required under the bail conditions. He must use only one mobile phone or landline number, which is to remain switched on.
The Court further prohibited him from contacting or influencing prosecution witnesses, protected witnesses, the complainant, persons acquainted with the facts of the case or co-accused and their family members.
He has also been restrained from tampering with evidence and from making public statements concerning the merits of the case, evidence, witnesses or pending trial.
He is additionally required to report to the concerned NIA branch office once every fortnight, unless the trial court directs otherwise.
The High Court made it clear that its observations were made only for the purpose of deciding the bail plea and should not be construed as findings on the merits of the prosecution case.
Case title - MOHD SHAHZAD KAMAL v NATIONAL INVESTIGATION AGENCY
Tags: