UAPA Bail Restriction for Foreign Nationals Requires Illegal Entry, Not Mere Visa Overstay; Section 43D(7) Does Not Bar Default Bail: Supreme Court

Case Name: Union of India v. Mohamed Rifas @ Mohamed Rigbas

Date of Judgment: 27 October 2026

Citation: 2026 INSC 1160

Bench: Justice Aravind Kumar and Justice Vipul M. Pancholi

Held: The Supreme Court held that the restriction on bail under Section 43D(7) of the Unlawful Activities (Prevention) Act, 1967, applies where the prosecution establishes, prima facie, that the person is accused of an offence under the Act, is not an Indian citizen, and entered India without authorisation or illegally. A foreign national’s lawful entry does not become illegal retrospectively merely because the person subsequently overstays a visa. The Court further held that Section 43D(7) does not override Section 43D(2), which applies the statutory default-bail framework under Section 167(2) of the Code of Criminal Procedure, 1973, to UAPA cases with specified modifications.

The Court also clarified that an alleged extra-judicial confession made to a Village Administrative Officer who is not acting under the authority of a police officer is not inadmissible merely because of Section 25 of the Indian Evidence Act, 1872. Its value remains subject to assessment of voluntariness, truthfulness and credibility.

Summary: The appeal arose from the Union of India’s attempt to cancel the bail granted to Mohamed Rifas @ Mohamed Rigbas, an accused in a case involving alleged offences under the UAPA, the Indian Penal Code and the Arms Act. The Sessions Court had granted him default bail in July 2018 because the investigating agency had not filed the chargesheet within the prescribed period.

A separate FIR was registered in 2019 alleging that the respondent was a Sri Lankan national who had entered India on a valid visa, overstayed it and subsequently obtained Indian identity documents. After the National Investigation Agency took over the UAPA investigation and filed a chargesheet, it sought cancellation of bail in 2022, alleging that the respondent had suppressed his nationality to avoid the restriction in Section 43D(7). The Special Court cancelled his bail, but the Madras High Court set that order aside.

Before the Supreme Court, the Union argued that the respondent’s alleged foreign nationality was a material fact suppressed when bail was sought. The respondent contested the claim about his nationality and argued that Section 43D(7) did not take away the right to default bail.

Interpreting Section 43D(7), the Supreme Court emphasised that the conditions of foreign nationality and unauthorised or illegal entry must both exist. Even where the statutory conditions are established prima facie, the provision permits bail in very exceptional circumstances, for reasons recorded in writing; the burden of demonstrating those circumstances lies on the accused. In the present case, the Court found no material showing that the respondent’s initial entry was unauthorised or illegal. The subsequent FIR itself recorded that he had entered on a valid visa and allegedly overstayed after its expiry.

The Court distinguished the cancellation of bail from an appellate challenge to an order granting bail. It observed that cancellation requires careful consideration because liberty has already been granted, and may be sought on grounds such as post-bail conduct or the discovery of a material fact suppressed at the time of release. It also explained that the filing of a chargesheet does not mechanically justify cancellation of default bail: a special and strong ground must be made out. On the facts, the Court found no such ground and was not satisfied with the explanation for the delay in seeking cancellation.

On the alleged confession to the Village Administrative Officer, the Supreme Court disagreed with the High Court’s reasoning insofar as it treated the absence of independent material as a reason to disregard the confession altogether. The Court stated that the confession could not be brushed aside at the prima facie stage, while leaving its ultimate probative value to be assessed at trial.

Decision: The Supreme Court dismissed the Union of India’s appeal and affirmed the Madras High Court’s order setting aside the cancellation of the respondent’s default bail. The Court made clear that the issues concerning the respondent’s nationality and alleged immigration violations remained for adjudication in the pending proceedings.