The present appeal has been preferred by Union of India through National Investigation Agency against High Court order where respondent was granted bail under Sections 143, 147, 148, 120B, 341, 427, 323, 324, 326, 506(H), 201,202, 153A, 212, 307, 149 of the Indian Penal Code, 1860 Section 3 of Exclusive Substance Act, 1908 Sections 16, 18, 18B, 19 and 20 of the Unlawful Activities (Prevention) Act, 1967
Justices NV Ramana, Surya Kant and Aniruddha Bose observed that where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence.
NIA’s contention was that the High Court erred in granting bail without adverting to the statutory rigours of Section 43D(5) of UAPA.
The court in the matter observed that “The presence of statutory restrictions like Section 43D (5) of UAPA per se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a Statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.”
The court stated that Section 43 D(5) of the UAPA is comparatively less stringent than Section 37 of NDPS.
Section 43D of UAPA provides ground for competent Court to refuse bail, in addition to well settled consideration like gravity of offence, possibly of tampering with evidence, influencing witness or chance of accused evading trial by absconding.
The court also stated that “Accused shall mark his presence every week on Monday at 10AM at the local police station and inform in writing that he is not involved in any other new crime. The respondent shall also refrain from participating in any activity which might enrage communal sentiments.”
Union of India vs. K.A. Najeeb