Unlawful Activities (Prevention) Act, 1967 ; Section 43 D(5) -The conventional idea in bail jurisprudence vis-à-vis ordinary penal offences that the discretion of Courts must tilt in favour of the oft-quoted phrase – ‘bail is the rule, jail is the exception’ – unless circumstances justify otherwise – does not find any place while dealing with bail applications under UAP Act. The ‘exercise’ of the general power to grant bail under the UAP Act is severely restrictive in scope – Bail must be rejected as a ‘rule’, if after hearing the public prosecutor and after perusing the final report or Case Diary, the Court arrives at a conclusion that there are reasonable grounds for believing that the accusations are prima facie true. It is only if the test for rejection of bail is not satisfied – that the Courts would proceed to decide the bail application in accordance with the ‘tripod test’ (flight risk, influencing witnesses, tampering with evidence). (Para 18-20)
Unlawful Activities (Prevention) Act, 1967 ; Section 43 D(5) – The inquiry that a bail court must undertake while deciding bail applications summarised in the form of a twin-prong test : 1) Whether the test for rejection of the bail is satisfied? – 1.1 Examine if, prima facie, the alleged ‘accusations’ make out an offence under Chapter IV or VI of the UAP Act -1.2 Such examination should be limited to case diary and final report submitted under Section 173 CrPC; 2) Whether the accused deserves to be enlarged on bail in light of the general principles relating to grant of bail under Section 439 CrPC (‘tripod test’)? On a consideration of various factors such as nature of offence, length of punishment (if convicted), age, character, status of accused etc., the Courts must ask itself : 2.1 Whether the accused is a flight risk? 2.2. Whether there is apprehension of the accused tampering with the evidence? 2.3 Whether there is apprehension of accused influencing witnesses? 22. The question of entering the ‘second test’of the inquiry will not arise if the ‘first test’is satisfied. And merely because the first test is satisfied, that does not mean however that the accused is automatically entitled to bail. The accused will have to show that he successfully passes the ‘tripod test’ . (Para 21-22)
Unlawful Activities (Prevention) Act, 1967 ; Section 43 D(5) – Test for Rejection of Bail – Guidelines as laid down by Supreme Court in Watali’s [NIA v. Zahoor Ahmad Shah Watali (2019) 5 SCC 1 ] Case – Meaning of ‘Prima facie true’ [para 23]: On the face of it, the materials must show the complicity of the accused in commission of the offence. The materials/evidence must be good and sufficient to establish a given fact or chain of facts constituting the stated offence, unless rebutted or contradicted by other evidence. • Degree of Satisfaction at Pre-Chargesheet, Post Chargesheet and PostCharges – Compared [para 23]: Once charges are framed, it would be safe to assume that a very strong suspicion was founded upon the materials before the Court, which prompted the Court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged against the accused, to justify the framing of charge. In that situation, the accused may have to undertake an arduous task to satisfy the Court that 15 despite the framing of charge, the materials presented along with the chargesheet (report under Section 173 CrPC), do not make out reasonable grounds for believing that the accusation against him is prima facie true. Similar opinion is required to be formed by the Court whilst considering the prayer for bail, made after filing of the first report made under Section 173 of the Code, as in the present case. •Reasoning, necessary but no detailed evaluation of evidence [para 24]: The exercise to be undertaken by the Court at this stage–of giving reasons for grant or non-grant of bail–is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage. •Record a finding on broad probabilities, not based on proof beyond doubt [para 24]: “The Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise.” •Duration of the limitation under Section 43D(5) [para 26]: The special provision, Section 43-D of the 1967 Act, applies right from the stage of registration of FIR for the offences under Chapters IV and VI of the 1967 Act until the conclusion of the trial thereof.•Material on record must be analysed as a ‘whole’; no piecemeal analysis [para 27]: The totality of the material gathered by the investigating agency and presented along with the report and including the case diary, is required to be reckoned and not by analysing individual pieces of evidence or circumstance. •Contents of documents to be presumed as true [para 27]: The Court must look at the contents of the document and take such document into account as it is. •Admissibility of documents relied upon by Prosecution cannot be questioned [para 27]: The materials/evidence collected by the investigation agency in support of the accusation against the accused in the first information report must prevail until contradicted and overcome or disproved by other evidence…….In any case, the question of discarding the document at this stage, on the ground of being inadmissible in evidence, is not permissible. (Para 23-26)