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Synopsis

The Supreme Court rejected a bail plea made by an accused arrested under the Unlawful Activities Prevention Act, emphasizing that as per Section 43D(5), the court must be satisfied that there are reasonable grounds for believing the accusation against the accused are prima facie not true.

A bench of Justices Hrishikesh Roy and Prashant Kumar Mishra dismissed a special leave petition filed by Mazhar Khan against the Rajasthan High Court's order of August 16, 2023.

"The ratio indicates that the court must be satisfied that there are reasonable grounds for believing the accusation against the accused are prima facie, not true," the bench said.

"Proceeding with the understanding of the law enunciated by this court in Watali and the discussion of the same ratio in the case of 'Vernon Vs The State of Maharashtra & Anr' (2023), together with the materials in the shape of the charge sheet made available before this court and looking into the criminal antecedent of the accused in a case of similar nature, we are of the view that the bail is not merited in the present matter", it added.

Khan was arrested on April 7, 2022 in a case registered under Sections 4, 5 and 6 of Explosive Substances Act, 1908 and 13,15,16,18 and 20 of the Unlawful Activities (Prevention) Act, 1967. 

His counsel contended that the statement of the co-accused was the primary basis to implicate Khan and those being inadmissible in law, could not justify further detention without the benefit of bail for the petitioner.  It was also submitted that the restriction under the proviso to Section 43D(5) of the UAPA Act would not come in the way for consideration of the bail for the petitioner. 

Further, it was submitted that no covert or overt act of terrorism had been attributed to the petitioner by the prosecution.

Opposing the bail, Additional Solicitor General K M Nataraj submitted the petitioner had criminal antecedent and was closely connected with such people whose roles are covered under the provisions of UAPA Act. 

He also referred to Section 43D(5) to argue that unless the court is able to reasonably believe that the accusation against the petitioner are prima-facie untrue, the court must order in favour of the prosecution. In other words, the burden would be on the accused to overcome the threshold limit prescribed under the Section 43D(5) of the proviso.

The High Court had declined bail to the petitioner, saying prima facie there is evidence against the accused; that he was earlier also arrested for the offence under UAPA Act in the year 2015; that there is disclosure statement of other co-accused with regard to his presence in the meetings; that he himself has given information under Section 27 of Evidence Act; that mobile phones have been recovered from the appellant which had connectivity with the other co-accused; that there is a specific bar under proviso to Section 43D(5) of UAPA Act.

Case Title: Mazhar Khan vs. NIA, New Delhi