This order refuses bail only. Its findings are expressly prima facie and confined to the present stage of the proceedings; the trial has not been held and the appellant remains presumed innocent. The judgment as uploaded states two different custody figures in counsel's submissions — 'more than 3 years 4 months' in paragraph 1 and arrest on 06.01.2023 with 'more than 3 years and 10 months' in paragraph 6 — which do not reconcile arithmetically; this article reports both as submitted and does not resolve the difference. The judgment also renders the witness's name in both orders (Farhan Javed / Javed Farhan) and the alleged radicaliser's name in both spellings (Abdul Raqib / Rakib Qureshi).
- Case
- Md. Saddam @ Mohammad Saddam @ Saddam Mallik @ Abdul Mallick v The Union of India
- Court
- High Court at Calcutta
- Decision
- Citation
- 2026:CHC-AS:1917-DB
- Bench
- Arijit Banerjee, J.; Apurba Sinha Ray, J.
- Judgment by
- Apurba Sinha Ray, J.
- Case numbers
- CRA (DB) 324 of 2025
- Outcome
- Final order dismissing Criminal Appeal (DB) 324 of 2025 and refusing bail under section 43D(5) of the UAPA. The trial on the charges remains pending.
Bail refused; appeal dismissed
The High Court at Calcutta has dismissed the bail appeal of Md. Saddam, an accused in a National Investigation Agency case, holding that the materials indicate overt acts on his part and the accusation appears prima facie true at this stage. Justices Arijit Banerjee and Apurba Sinha Ray (Ray J. authoring) delivered the order on 13 November 2026, having reserved it on 30 September 2026.
The Court held the case had not reached the 'melting point' in Union of India v. K.A. Najeeb, where the rigours of section 43D(5) melt down if the trial is unlikely to conclude within a reasonable time. It found no intentional delay by the prosecution and dismissed the appeal, CRA (DB) 324 of 2025.
The case so far
The appellant has been in custody for a period his counsel put at more than three years, with 52 charge-sheet witnesses, only three examined, and counsel argued the trial would not conclude early. The judgment records counsel's submission that the appellant was arrested on 06.01.2023 and had been in jail for more than three years and ten months.
The charge-sheet was filed on 04.07.2023 and the charge framed on 14.08.2025. Several witnesses were examined, but cross-examination was deferred by the accused under section 231 of the Code of Criminal Procedure, 1973, and witness examination halted while his discharge application — later rejected by the trial judge — was pending.
What the appellant argued
Senior counsel Deep Chaim Kabir submitted that the grounds of arrest, which the Constitution requires to be communicated to the arrestee, had not been communicated to the appellant. He relied on Union of India v. K.A. Najeeb, and said the prosecution's authorities — Gurwinder Singh, Gulfisha Fatima and Watali — took divergent views from it.
The core submission was that the allegation was only that the appellant was an ISIS sympathiser who had indoctrinated several young people, and that images and videos were found on phones and laptops. Mere possession of literature, photographs or videos does not constitute any offence, counsel argued, relying on Thwaha Fasal, where the Supreme Court held mere association insufficient to attract sections 38 and 39 of the UAPA, and on Vernon to the same effect.
Counsel added three points. First, the material was recovered from Farhan, who was cited as a witness rather than made an accused, although the appellant was said to have been radicalised by Abdul Raqib Qureshi and to have radicalised Farhan in turn. Second, apart from the digital material there was no overt act or physical recovery linking the accused with ISIS, and the chats were unsupported by subscriber details or codes connecting him to the accounts. Third, electronic evidence demands a strict chain of custody — hash values, certified extraction and mirror images — which the prosecution had not shown. He added that section 43D(5) differs from section 45 of the PMLA and section 37 of the NDPS Act, which impose twin conditions, and that seeking discharge could not dilute the appellant's Article 21 right.
What the NIA argued
Special Public Prosecutor A.K. Maity, for the NIA, submitted that the appellant was not a passive sympathiser but an active ISIS operator: recruiting and radicalising Muslim youths, disseminating ISIS propaganda, and running clandestine Telegram groups to send recruits to Afghanistan and Khorasan for training and to discuss target killings. The extraction report, he said, showed the appellant communicating with entities in Pakistan, Saudi Arabia, Syria and elsewhere, using a virtual phone number, and circulating violent propaganda videos among young people.
The prosecution further submitted that the Telegram chats showed his connection with an ISIS network and with Abdul Rakib Qureshi, and that the investigation had identified one Amina Bint Munnavar, residing in Singapore, as a key radicaliser and administrator of ISIS-linked groups. It denied that the grounds of arrest had not been intimated, and denied that the long incarceration was only the prosecution's fault. At the highest, counsel said, the case would attract sections 38 and 39 of the UAPA, so the statutory embargo in section 43D(5) would squarely apply.
BANTHRY ANALYSISThe test under section 43D(5)
The Court framed its task narrowly: under section 43D(5), it had to find whether the materials were sufficient to hold, at this stage, that the accusation was prima facie true. The provision bars bail if, on the case diary or the section 173 report, the court is of the opinion that there are reasonable grounds for believing the accusation prima facie true — unlike the twin conditions in the PMLA and the NDPS Act, which require satisfaction that the accused is not guilty and will not reoffend.
The Court also set out the constitutional balance from Najeeb: statutory restrictions like section 43D(5) do not oust constitutional courts' power to grant bail for violation of Part III. Courts should appreciate the policy against bail at the outset, but the rigours melt down where the trial is unlikely to conclude within a reasonable time and the incarceration already undergone exceeds a substantial part of the sentence.
Why the Court refused bail
The Court held that this was not mere possession of literature. The extraction reports showed Telegram messages exchanged through virtual numbers with persons outside India, with talk of recruiting Indian youth abroad for militant purposes, and the sender eager to carry out militant activities, including killing journalists in India. The materials showed the applicant taking an active part in collecting, organising and instigating youth for hijrat and jihad, and collecting youth for a suicide squad — overt acts satisfying the Thwaha Fasal test. The videos also showed militant training and planning to kill Prime Minister Modi and American President Donald Trump.
On delay, the Court held that the discharge application, though legal, had consumed much time, and the prosecution could not be blamed. It relied on Gulfisha Fatema and Tasleem Ahmed: delay cannot automatically be attributed to the prosecution, and 52 witnesses were not excessive given the gravity of the offences. On the grounds of arrest, the case had started on 06.01.2023, before the decisions in Pankaj Bansal, Shoma Kanti Sen and Prabir Purkayastha, so that question was, in its words, a matter of academic research and interest for this case.
The Court also rejected the parity argument about Farhan. His section 164 statement showed he had met the applicant at a mosque near his aunt's Howrah house, and was sent the materials with instructions to keep them secret. The two did not stand on the same footing. Applying Watali and Najeeb, the Court said it could not evaluate the evidence threadbare or hold a mini-trial, and concluded that the melting point had not been reached, that the matter concerned national security, and that the accusation appeared prima facie true.
BANTHRY ANALYSISFor law students
Three doctrines do the work here. First, section 43D(5) is a prima facie test on the case diary and charge-sheet, not a mini-trial: Watali forbids threadbare evaluation at the bail stage. Second, Thwaha Fasal separates membership or possession of literature from overt acts showing an intention to further a terrorist organisation's activities; the chats, foreign contacts and recruitment talk crossed that line. Third, Najeeb's melting point is not triggered by long custody alone: the court asks who caused the delay, and here it pointed to the accused's deferral of cross-examination and his discharge application. The order decides nothing about guilt.
READING PROMPTSQuestions for a closer reading
- Under section 43D(5) of the UAPA, what exactly must the court be satisfied of before it can grant bail, and how does that test differ from the twin conditions in section 45 of the PMLA?
- Why did the Court hold that this case was not one of 'mere possession of literature' under Thwaha Fasal, and which materials did it rely on to draw that distinction?
- What is the 'melting point' in K.A. Najeeb, and why did the Court hold that this case had not reached it despite more than three years in custody?
