Union of India v. K.A. Najeeb

In July 2010 a college professor in Kerala was attacked and his right palm severed, allegedly by members of the Popular Front of India, over a question he had set in an examination paper. The respondent was accused of being part of the conspiracy and of helping the attackers. He absconded and was arrested only in 2015. Meanwhile most of his co-accused had been tried, and those convicted received sentences of not more than eight years. In 2019 the Kerala High Court granted him bail, as he had spent over four years in custody and the trial was nowhere near its end. The Union of India, through the National Investigation Agency, appealed.

The Court held that statutory restrictions such as Section 43-D(5) do not by themselves oust the ability of constitutional courts to grant bail on the ground that rights under Part III are being violated. The statute and the constitutional guarantee must be harmonised: courts are expected at the outset to give effect to the legislative policy, 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 already spent in custody exceeds a substantial part of the prescribed sentence.

The Court distinguished NIA v. Zahoor Ahmad Shah Watali, where the High Court had granted bail after an elaborate appreciation of the evidence amounting to a mini-trial. Here the High Court had not examined the merits; it had granted bail because of the length of custody and the absence of any prospect of an early trial.

The respondent had by then spent nearly five years and five months in custody, 276 witnesses were still to be examined, and co-accused had already been sentenced to terms of up to eight years. The Court also noted that, unlike Section 37 of the NDPS Act, Section 43-D(5) does not require the court to be satisfied that the accused is not guilty.