The Supreme Court on Tuesday dismissed the Union government's appeal and held that foreign nationality alone is not enough to deny bail to a person accused under the Unlawful Activities (Prevention) Act (UAPA). The bar in Section 43D(7) applies only when the prosecution also proves that the person's initial entry into India was unauthorised or illegal, Live Law and Law Trend reported.

A bench of Justice Aravind Kumar and Justice Vipul M. Pancholi upheld the Madras High Court order that had restored bail to Mohamed Rifas, also named as Mohamed Rigbas, who the prosecution alleges is a Sri Lankan national. The allegations against him have not been tried or proved, and the Court's ruling is on the legal test for bail, not on his guilt or innocence.

Source: Live Law

Reading the provision, the Court said its conditions are joined together: the person must be accused of a UAPA offence, must not be an Indian citizen, and must have entered India unauthorisedly or illegally. A person who entered on a valid visa does not fall under the bar merely because the visa later expired or the stay later became illegal, the bench held, because a later change does not turn a lawful first entry into an illegal one.

According to the case history reported by Law Trend, Rifas was granted default bail in July 2018 after the chargesheet was not filed within the statutory period. A special court cancelled that bail in July 2022, the Madras High Court set the cancellation aside in December 2023, and the Union then appealed to the Supreme Court. The Court held that an allegation of suppressed nationality, by itself, could not justify cancelling the default bail.

Source: Law Trend

The bench also underlined that where the Section 43D(7) bar does apply, bail for a foreign national remains possible only in 'very exceptional circumstances', with reasons recorded in writing, given the national security and sovereignty concerns behind the provision. The prosecution alleges that Rifas entered India in 2009, overstayed his visa and obtained Indian identity documents; those claims remain allegations to be tested at trial.