In a scathing indictment of investigative excess and judicial misdirection in UAPA prosecutions, the Supreme Court on Friday, December 5, granted bail to a man incarcerated for over two years without a chargesheet, declaring his continued custody “illegal by every measure known to law.”
The Bench of Justices Vikram Nath and Sandeep Mehta, according to the report of LiveLaw, was visibly enraged as it confronted the record of the case. Justice Mehta rebuked Assam Police for what the Court described as a shocking and indefensible lapse: “This is appalling! Two years you are not filing a chargesheet and the man remains in custody? Whatever the stringent provisions may be, the UAPA does not authorise illegal detention. You consider yourself to be a premier investigative agency?”
The petitioner had been apprehended in July 2023 with ₹3.25 lakh and later taken into custody through a production warrant. The chargesheet surfaced only on 30 July 2025—well past the outer limit of 180 days, which itself requires a reasoned judicial extension under Section 43D(2) of the UAPA.
As per the LiveLaw report, the Supreme Court stressed that default bail is not a discretionary indulgence but an “indefeasible right” under Article 21, crystallizing the moment statutory timelines lapse: “By no stretch of imagination can custody extending beyond 180 days without a chargesheet—and without any valid extension order—be regarded as lawful. The detention is unconstitutional.”
The Gauhati High Court Order- What the Supreme Court found wrong
The Gauhati High Court’s December 20, 2024, order in Tonlong Konyak v. State of Assam rejected the petitioner’s plea for bail in a UAPA case by resting its decision almost entirely on the finding that he was a foreign national from Myanmar who had entered India illegally. The petitioner had been arrested on 26 August 2023 in connection with Sapekhati P.S. Case No. 29/2023, registered for offences under the IPC and multiple provisions of the UAPA. He argued that the State had failed to file its investigation report within the statutory period mandated under Section 173(2) CrPC / Section 193(3) BNSS, and therefore he had acquired an indefeasible right to default bail. Relying on Article 21 and key Supreme Court precedents, he submitted that co-accused had already been released and that neither the FIR nor the forwarding report contained any concrete incriminating material linking him to the alleged offences.
The State opposed the bail plea by placing the case diary before the Court, asserting that the petitioner was an active linkman for ULFA (I), facilitating extortion networks across Charaideo district. According to the prosecution, he was apprehended by Assam Rifles on 29 July 2023 with ₹3.2 lakh in extortion money, was in constant touch with persons aiding the banned organisation, and was responsible for carrying ransom amounts across the India–Myanmar border. The State further contended that he lacked any travel documents or passport, proving illegal entry, and argued that releasing him would result in an almost certain risk of absconding.
Justice Manash Ranjan Pathak’s order reproduces at length the allegations from the FIR and the case diary: the extortion demands made by ULFA (I), the pattern of ransom payments collected from tea-estate owners, and the role of intermediaries based in Charaideo. The Court recorded that the petitioner had allegedly contacted several linkmen arrested in the case, provided details of businessmen to ULFA (I), and transported extortion money to the organisation’s hideouts in Myanmar. It also noted that the petitioner faced additional cases in Borhat and Mon, and concluded that the materials showed active involvement with banned groups.
The crux of the High Court’s legal reasoning, however, turned on Section 43D(7) of the UAPA, a non-obstante clause that prohibits grant of bail to foreign nationals who enter India unauthorisedly, unless “very exceptional circumstances” are shown. The Court held that this provision overrides the default-bail regime under CrPC/BNSS. Since the petitioner was indisputably a foreigner who entered India without authorisation, and since he had not demonstrated any exceptional circumstances, the Court held that he was categorically barred from seeking bail—even default bail.
In effect, the High Court treated illegal entry as a complete statutory bar that extinguishes the default-bail right. It reasoned that the gravity of allegations, the petitioner’s foreign nationality, and his alleged cross-border activities “amply justified” continued custody. Without examining whether the investigating agency had obtained any valid court order extending the statutory investigation period to 180 days, or whether the failure to file a chargesheet rendered custody unlawful, the Court concluded that statutory protections under Section 167 CrPC / 193(3) BNSS do “not apply” to such a foreign national accused under UAPA.
Ultimately, the High Court held that the petitioner could not claim the benefit of default bail due to the overriding effect of Section 43D (7), and dismissed the bail application. This reasoning—treating nationality and illegal entry as grounds to deny a constitutionally recognised procedural safeguard—became the central point of contention before the Supreme Court, which later corrected the position by holding that no statutory non-obstante clause can override the default-bail right when the State itself violates statutory timelines.
Where the High Court went wrong (and why the SC could not have upheld it):
- The HC collapsed two distinct bail regimes—default bail and regular bail—into one: Section 43D (7) restricts regular bail to foreign nationals who have illegally entered India, unless very exceptional circumstances exist. But default bail is not regular bail.
Default bail does not depend on:
- gravity of allegations
- nationality
- risk of absconding
- case diary materials
- exceptional circumstances
It depends only on whether the State complied with statutory timelines. The HC treated a constitutional right as if it were a discretionary privilege.
- The HC placed Section 43D (7)’s non-obstante clause above the Constitution: The HC held that the 43D(7) non-obstante clause overrides the right to default bail.
This is plainly contrary to the Supreme Court’s consistent jurisprudence (Uday Mohanlal Acharya, M. Ravindran, Rakesh Kumar Paul), which holds:
- Default bail arises directly from Article 21.
- No statutory non-obstante clause can override a constitutional guarantee.
- Once the right accrues, it is absolute.
The HC’s interpretation effectively allowed the State to nullify constitutional default-bail protection by merely alleging illegal entry, which is impermissible.
- The HC relied extensively on allegations in the case diary—irrelevant for default bail: The attached order spends multiple paragraphs reproducing police allegations: alleged ULFA(I) links, extortion networks, border crossings, ransom collection, etc. These may be factors in a merits-based bail hearing, but they have zero bearing on whether the 90/180-day period expired without a chargesheet.
Default bail entitles the accused to release even if the allegations are grave, credible, or proven, because the right is triggered by State failure—not by innocence.
- Illegality of entry cannot justify illegality of detention: The HC repeatedly asserted that the petitioner’s “unauthorised entry” bars him from bail. However:
- Illegal entry is a separate offence.
- It cannot legitimise detention that violates statutory timelines.
- The State cannot defend one illegality (custody) on the basis of another alleged illegality (entry).
- The HC never examined whether there was a valid extension order under Section 43D(2): A fatal omission as the law requires:
- Written application by the Public Prosecutor,
- Detailed reasons showing progress of investigation,
- A judicial order extending time up to 180 days.
The HC’s order shows no such extension existed—yet it still rejected default bail. This omission could alone renders the order unsustainable.
The complete order of the Gauhati HC may be read here:
Why the Supreme Court intervened so strongly
The Supreme Court focused on the most fundamental issue: the petitioner’s detention was per se illegal, irrespective of nationality or the gravity of allegations. The Court’s reasoning reflects three constitutional anchors:
- UAPA’s severity does not permit investigative complacency: The Act’s stringency heightens, not relaxes, the burden on the State to maintain strict procedural discipline.
- Nationality is constitutionally irrelevant to default bail: The right protects any person in custody. Article 21 does not distinguish between citizens and non-citizens.
- Default bail is a constitutional protection against State abuse: It exists precisely to prevent the scenario seen here: endless incarceration without trial.
- Courts must not allow non-obstante clauses to amputate constitutional rights: The Supreme Court restored the correct position: Statutes cannot override the Constitution—ever.
Conclusion: A powerful reassertion of liberty in the UAPA era
The Supreme Court’s order is a striking reminder that even under the most severe national-security legislation, the State cannot suspend procedural safeguards. The ruling not only restores the petitioner’s liberty but also implicitly corrects the Gauhati High Court’s overly broad reading of Section 43D (7), which had the effect of collapsing the distinction between default bail and regular bail.
By granting bail and condemning the prolonged pre-trial incarceration, the Court reinforces a key constitutional principle: When the State violates statutory timelines, detention becomes illegal—no matter who the accused is, or what the allegations are.
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