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Petitioners in CRR 602 of 2017 have approached this Court, inter alia, assailing the applicability of Sections 16/18 of the Unlawful Activities (Prevention) Act, 1967 [hereinafter referred to as UAPA Act] to the instant case.

During the pendency of the petition, Mr. Bikash Ranjan Bhattacharyya, learned senior advocate appearing for the petitioners sought leave to assail the order dated 6th April, 2017 extending the period of detention of the petitioners under Section 167(2) of the Code of Criminal Procedure in terms of Section 43D(2) of UAPA Act and order dated 28.6.2017 denying statutory bail to the petitioners herein. Such prayer, being incidental to the principal relief sought for, was permitted to be canvassed in this petition.

Judged from the aforesaid premise, the maximum period of detention of the petitioners permissible under Section 43D(2) of the UAPA Act had expired upon completion of 90 days i.e. on 25th April, 2016. Accordingly, the petitioners had availed of statutory bail on 28th June, 2016 prior to filing of police report on 3rd July, 2016. However, their prayer was mechanically rejected.

In this backdrop, learned Advocate General strenuously urged that the statutory bail to the petitioners cannot be granted as of right in view of the scheme of Section 43D of the Act. He drew my attention to the proviso to sub-section (5) of Section 43D and submitted that the restrictions envisaged therein would fetter the right of the court even in the matter of statutory bail if the State is able to demonstrate that a prima facie case is made out against the accused. He further drew my attention to the change in the words used in the aforesaid proviso in comparison to the relevant provision under the repealed Prevention of Terrorism Act, 2002, that is, Section 49(7) of the said Act. He submitted as sufficient materials had been collected against the petitioners in the course of investigation clearly making out a prima facie case under the provisions of UAPA Act, statutory bail be denied to them in the instant case.

Mr. Bhattacharyya, learned senior advocate for the petitioners, however, rebutted such submission on the anvil that the right to statutory bail is an indefeasible right if the conditions precedent are satisfied and it is not within the discretionary domain of the court to deny an accused statutory bail if he is otherwise entitled to do it and is able to furnish the bail bond as directed by the Court. He further submitted that the proviso to sub-section (5) of Section 43D of the UAPA Act is an amelioration of the law restricting the discretion of the Court in granting bail to an accused when compared with Section 49(7) of POTA where the onus was on the accused to show that he is not guilty to be released on bail. Similar provision of NDPS Act has been interpreted by the court to hold that such restriction does not make an inroad on the right of an accused to statutory bail upon default. He referred to the judgment of the Apex Court in Sayed Mohd. Ahmad Kazmi vs. State reported in (2012) 12 SCC 1 wherein the Apex Court had granted statutory bail to an accused on default as a matter of right under UAPA Act.

The applicability of such restriction upon the right of an accused to avail statutory bail under NDPS Act fell for decision before the Apex Court in Union of India vs. Thamisharasi and Ors., (1995) 4 SCC 190 wherein the Court unequivocally held that the right of statutory bail is unaffected by the restrictions imposed under Section 37 of the said Act. Proviso to sub-section (5) of Section 43D, in my opinion, fall in the same species of restriction as Section 37 of the NDPS Act and would call for similar interpretation. I am further fortified in this regard by the ratio in Sayed Mohd. Ahmad Kazmi vs. State (NCT of Delhi), (2012) 12 SCC 1 wherein the Apex Court extended the privilege of statutory bail to an accused under UAPA Act irrespective of the satisfaction of the court as required under the proviso to sub-section (5) of Section 43D of the said Act.