The Supreme Court has clarified that a foreign national accused under the Unlawful Activities (Prevention) Act, 1967 (UAPA) cannot automatically be denied bail merely because the person is not an Indian citizen. The prosecution must also establish, at least prima facie, that the accused entered India without authorisation or illegally.
A Bench of Justice Aravind Kumar and Justice Vipul M. Pancholi dismissed the Union government's appeal challenging the Madras High Court's decision restoring bail to Mohamed Rifas, also known as Mohamed Rigbas.
Background
The respondent was arrested in connection with a case registered in Tamil Nadu in April 2018 under various provisions of the Indian Penal Code, UAPA and Arms Act. On July 5, 2018, he was granted statutory bail because the investigating agency had failed to file the chargesheet within the prescribed period.
In November 2019, another FIR was registered alleging that he was a Sri Lankan national who had entered India in 2009 and overstayed his visa. The Union government subsequently sought cancellation of his bail, arguing that his foreign nationality attracted the restrictions under Section 43D(7) of the UAPA.
The trial court cancelled his bail in July 2022. However, the Madras High Court set aside that order in December 2023, prompting the Union government to approach the Supreme Court.
The Supreme Court explained that Section 43D(7) requires three conditions: the person must be accused of a UAPA offence, must not be an Indian citizen, and must have entered India unauthorisedly or illegally.
The Bench observed:
"merely because a person is not an Indian Citizen will not suffice to trigger the rigors of sub-section (7) of Section 43D rather the condition mandating 'at the time he entered India', such entry must be either unauthorized or illegal must also co-exist."
The Court noted that the allegations in the subsequent FIR indicated that the respondent had initially entered India on a valid visa and that his stay allegedly became illegal after the visa expired. The prosecution had not established that his initial entry was unauthorised or illegal.
The judgment further clarified that statutory bail granted because of the failure to file a chargesheet within the prescribed period could not be cancelled mechanically merely because a chargesheet was subsequently filed.
The Bench stated:
"The appellant has failed to place any material on record to prima facie establish the entry as unauthorized or illegal."
The Supreme Court found no merit in the Union government's appeal. It also noted that the government had failed to adequately explain the delay in seeking cancellation of bail after the chargesheet was filed.
Accordingly, the Court dismissed the appeal and affirmed the Madras High Court's December 12, 2023, order restoring the respondent's bail.
Case Details
Case Title: Union of India v. Mohamed Rifas @ Mohamed Rigbas
Case Number: Criminal Appeal arising out of SLP (Criminal) No. 7177 of 2024
Judges: Justice Aravind Kumar and Justice Vipul M. Pancholi
Decision Date: October 27, 2026
