Isabella Mariam

The High Court of Punjab and Haryana Division Bench of Justice Deepak Sibal and Justice Lapita Banerji ordered the release on bail of Ashish Kumar, who had remained in custody for over five years under charges framed under Section 120-B of the Indian Penal Code, Section 25 of the Arms Act, and multiple provisions of the Unlawful Activities (Prevention) Act, 1967. The Court found no substantive evidence showing that he advocated or incited terrorist acts, despite allegations that he supplied arms to co-accused linked to serious crimes including murders, dacoity, and extortion.

The appellant, Ashish Kumar, challenged the order dated January 8, 2024, passed by the Additional Sessions Judge, SAS Nagar, Mohali, which had dismissed his bail application. The case originated from FIR No. 02 dated February 5, 2020, registered at Police Station State Special Operation Cell, District SAS Nagar, Mohali. The FIR was filed under Section 120-B of the Indian Penal Code, Section 25 of the Arms Act, and Sections 10, 13, 18, and 20 of the Unlawful Activities (Prevention) Act, 1967 (UAPA).

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The allegation against the appellant was that he was a supplier of illegal arms and weapons to co-accused Dharminder Singh @ Guggni and his associates, who were allegedly involved in committing offences such as murders, dacoity, loots, and extortion. During investigation, it was claimed that Ashish Kumar was a close associate of Dharminder Singh, a member of the banned Khalistan Liberation Force (KLF), who was confined in Tihar Jail, Delhi. The State submitted that Ashish Kumar, acting under directions of Dharminder Singh, had supplied three weapons to close associates in November 2019, which were later used by pro-Khalistani elements and criminal gangs in Punjab to disturb public order.

At the time of arrest, the police alleged recovery of one .30 bore pistol along with four live cartridges from Ashish Kumar. These were sent for forensic examination, which confirmed that the weapon was in working condition and the cartridges were live and usable. The State also relied upon disclosure statements and testimonies of chance witnesses including Kulwinder Singh @ Kala, Amrik Singh, and Nishant Sharma to link the appellant to the offences. However, the defence argued that no other incriminating material was brought on record to establish his involvement in unlawful activities.

The appellant contended that only one out of forty prosecution witnesses had been examined despite over five years of incarceration. He placed reliance on multiple Supreme Court judgments, including Union of India v. K.A. Najeeb (2021) 3 SCC 713, Shoma Kanti Sen v. State of Maharashtra (2024 SCC OnLine SC 498), and Javed Iqbal v. State of Uttar Pradesh (2024 SCC OnLine SC 1755), to submit that prolonged custody under UAPA justified grant of bail under Article 21 of the Constitution of India.

The State opposed bail, citing the serious nature of allegations and the embargo under Section 43-D(5) of the UAPA. It was argued that the appellant’s role in supplying weapons had direct nexus with terrorist activities and public safety. The State relied on Gurwinder Singh v. State of Punjab (2024) 2 SCC to argue that bail should be denied where accusations under UAPA were found to be prima facie true.

The Court recorded that the allegation against the appellant was that “he was a supplier of illegal arms and weapons to co-accused Dharminder Singh @ Guggni and his associates for commission of serious offences like murders, dacoity, loots, extortion etc.” It noted that “One .30 bore pistol along with 04 live cartridges was recovered from him. The weapons were sent for FSL examination and as per the report, they were in working condition and the cartridges were live and usable.”

The Court examined the affidavit filed on behalf of the State and observed: “it is transpired that the appellant had been apprehended only on the basis of secret information given by one of the police officials. The only evidence that has been brought on record at this stage are the statements made by the chance witnesses.” It further recorded: “It appears from the affidavit that no incriminating material has been found against him, at this stage. Furthermore, no link evidence has also been established to connect the appellant to the commission of a crime/offence showing his involvement under the UAPA.”

On the issue of custody, the Bench stated: “The appellant has undergone an actual sentence of 05 years 02 months and 30 days.” It proceeded to examine constitutional safeguards, holding: “Article 21 of the Constitution of India enshrines the fundamental right to protection of life and liberty which also includes the right to a speedy trial. It has been held by the Supreme Court in a catena of judgments that long custody by itself would entitle the accused under UAPA to the grant of bail by invoking Article 21 of the Constitution of India. The Constitutional Court would like to prevent a situation where the lengthy and arduous process of trial becomes the punishment in itself.”

The Court referred to precedents and cited: “It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of UAPA per se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution.” It added: “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.”

The Bench also relied on precedent to state: “serious allegations against accused by itself cannot be a reason to deny bail to the accused.” It further quoted: “Howsoever serious a crime may be, an accused has a right to trial as enshrined under the Constitution of India. Moreover, the purpose of bail is only to secure the attendance of the accused at the trial and it is not to be withheld as a form of punishment.”

Finally, the Court concluded that continued custody was unjustified in the circumstances, noting both the lack of material evidence under UAPA and the extended incarceration already suffered.

“Accordingly, the present appeal is allowed.” The Bench set aside the order of the trial court by stating: “The order dated 08.01.2024 passed by the learned Additional Sessions Judge, SAS Nagar, Mohali, is hereby set aside.”

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“The appellant Ashish Kumar is ordered to be released on bail during the pendency of trial, subject to his furnishing bail/surety bonds to the satisfaction of the trial Court.”

“It is made clear that anything observed hereinabove shall not be construed to be an expression of opinion on the merits of the case.”

Advocates Representing the Parties

For the Petitioners: Mr. Amit Agnihotri, Advocate with Mr. Mani Makkar, Advocate with Ms. Anju Sharma Kaushik, Advocate with Mr. Abhishek Jindal, Advocate

For the Respondents: Mr. Shekhar Verma, Additional Advocate General, Punjab

Case Title: Ashish Kumar v. State of Punjab

Neutral Citation: 2025: PHHC122268-DB

Case Number: CRA-D-157-2024 (O&M)

Bench: Justice Deepak Sibal, Justice Lapita Banerji