Bail- Restrictions In Section 43­D(5) of UAPA Act Are Comparatively Less Stringent Than Section 37 NDPS Act: Supreme Court

In a significant judgment pronounced on Monday, the Supreme Court observed that Section 43­D(5) of the Unlawful Activities (Prevention) Act, is comparatively less stringent than Section 37 of the Narcotic Drugs and Psychotropic Substances Act.

Relevant provisions of UAPA and NDPS read as follows:

43D(5) UAPA

(5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release: Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.

Section 37 NDPS

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973........no person accused of an offence punishable for [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless—the Public Prosecutor has been given an opportunity to oppose the application for such release, and where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

That is, bail cannot be granted under UAPA if there are reasonable grounds for believing that the accusation against such person is prima facie true. Under NDPS, bail cannot be granted if the there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

Taking note of the above provisions, the bench observed: 

Unlike the NDPS where the competent Court needs to be satisfied that prima facie the accused is not guilty and that he is unlikely to commit another offence while on bail; there is no such pre­condition under the UAPA. Instead, Section 43­D (5) of UAPA merely provides another possible ground for the competent Court to refuse bail, in addition to the well settled considerations like gravity of the offence, possibility of tampering with evidence, influencing the witnesses or chance of the accused evading the trial by absconsion etc.

The Court also observed that the constitutionality of harsh conditions for bail in such special enactments, has thus been primarily justified on the touchstone of speedy trials to ensure the protection of innocent civilians.

The same issue was considered by the Supreme Court in National Investigation Agency vs Zahoor Ahmad Shah Watali in which it was observed that the degree of satisfaction is lighter when the Court has to opine that the accusation is "prima facie true", as compared to the opinion of accused "not guilty" of such offence. It was observed thus:

There is degree of difference between the satisfaction to be recorded by the Court that there are reasonable grounds for believing that the accused is "not guilty" of such offence and the satisfaction to be recorded for the purposes of the 1967 Act that there are reasonable grounds for believing that the accusation against such person is "prima facie" true. By its very nature, the expression "prima facie true" would mean that the materials/evidence collated by the Investigating Agency in reference to the accusation against the concerned accused in the first information report, must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence. It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted. In one sense, the degree of satisfaction is lighter when the Court has to opine that the accusation is "prima facie true", as compared to the opinion of accused "not guilty" of such offence as required under the other special enactments. In any case, the degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act.

CASE: Union of India vs. K.A. Najeeb  [CRIMINAL APPEAL NO. 98 of 2021]

CORAM: Justices NV Ramana, Surya Kant and Aniruddha Bose

CITATION: LL 2021 SC 56

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