The Supreme Court on Friday granted bail to a 55-year-old tribal man, taking serious exception to the Assam Police keeping him in custody for two years without filing a chargesheet.
Terming his prolonged incarceration as “wholly unjustified”, a Bench of Justices Vikram Nath and Sandeep Mehta pulled up the Assam Police for failing to file the chargesheet within the statutory period prescribed under the Unlawful Activities (Prevention) Act, 1967.
“For two years, you did not file the chargesheet, and the man has been in custody? This is, in fact, illegal custody. You consider yourself to be the premier investigating agency of the country?” the Bench remarked, addressing advocate Shubhojit Roy who appeared for the Assam Government.
Mr. Roy submitted that the accused, Tonlong Konyak, was a Myanmar national and had been found in possession of counterfeit Indian currency while crossing the border. He argued that Section 43D(7) of the UAPA imposes a statutory bar on granting bail to a person who is not an Indian citizen and has entered the country illegally, except in exceptional circumstances.
Dismissing such a contention, Justice Mehta observed, “Whatever be the stringent provisions under UAPA, the law does not provide for illegal custody. This is appalling.”
The Bench further noted that the petitioner had already been granted default bail in two connected cases in which the chargesheet was not filed within the prescribed period. It added that under Section 43D(2)(a) of the UAPA, the period for completing an investigation may be extended only up to a maximum of 180 days, and only through a judicial order, expressly recording the grounds for such extension.
‘Indefinite custody’
Justice Mehta then asked the State counsel what had prevented the police from filing the chargesheet, pointing out that an accused would ordinarily be entitled to statutory bail if the investigation is not completed within the mandated period. Mr. Roy responded that several co-accused were absconding, which had delayed the investigation.
“You cannot keep a person in custody for an indefinite period. If the chargesheet is not filed within the stipulated period under the law, he has to be granted default bail,” Justice Mehta said.
The apex court was hearing Mr. Konyak’s petition challenging a December 20, 2024, ruling of the Gauhati High Court, which had denied him bail on the ground that he was not an Indian citizen and had entered the country without any authorisation.
According to the prosecution, Mr. Konyak was arrested on the Nagaland border by the Assam Rifles on July 23, 2023, after he was allegedly found carrying ₹3,25,000 in extorted money while travelling towards Myanmar. He was later booked under provisions of the IPC and the UAPA for purported links with the banned United Liberation Front of Assam (ULFA-Independent).
Disputing these allegations, advocate Shahrukh Alam submitted that he belonged to the Konyak tribe of Nagaland, which is indigenous to the border region, and that, at the time of his arrest, the area was governed by the Free Movement Regime (FMR) between India and Myanmar. The FMR permitted members of border tribes to travel up to 16 km into each other’s territory without a passport or visa.
“My Lords, please note that the petitioner has been in custody since 2023, and a chargesheet was filed only on July 31 this year,” Ms. Alam said.
Accordingly, the Bench observed that the petitioner deserved the “indulgence” of bail, particularly when there was no likelihood of the trial concluding in the near future. “Evidently, the petitioner has been detained for almost two years without the chargesheet being filed. In our opinion, the custody of the petitioner for such a prolonged period without the chargesheet being filed was absolutely unjustified,” it held.
It further noted that even a preliminary examination of the chargesheet revealed that neither was any incriminating material recovered from the petitioner, nor was there any direct evidence linking him to acts of extortion.
The petitioner had argued that the allegations levelled against him lacked any substantive evidentiary foundation, rendering his continued detention arbitrary and violative of his fundamental rights. “The Hon’ble High Court erred in not considering the fact that even if the Petitioner were a foreign national, he is still entitled to equal protection of laws under Article 14 and the fundamental right to life and personal liberty under Article 21 of the Constitution of India,” the petition, filed through advocate Akriti Chaubey, stated.
It added that a catena of Supreme Court judgments has consistently held that the right to bail cannot be denied on the ground of nationality and that personal liberty cannot be curtailed without just and reasonable cause.