Crl.A. 204/2011 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY HON’BLE MR. JUSTICE P.K.MUSAHARY (Amitava Roy,) The present is an appeal under Section 21(4) of the National Investigati on Agency Act, 2008 (for short, hereinafter referred to as ’the 2008 Act’) assai ling the order dated 19.9.2011 passed by the learned Special Judge, NIA, Assam i n Misc. Case No. 27/2011 arising out of Special NIA Case No. 2/2009 (correspondi ng to Diyangmukh P.S. Case No. 3/2009) rejecting the application for bail of the appellant filed under Section 437 of the Code of Criminal Procedure, 1973 (for short, hereinafter referred to as ’the Code’). We have herd Mr PC Dey, learned counsel for the appellant and Mr DK Das, learned Standing Counsel, NIA. Mr D Das, learned Addl. Public Prosecutor, Assam is also heard. A brief sketch of the facts leading to the filing of the instant appeal is indispensable. The appellant who was arrested on 1.4.2010 in connection with Basistha P.S Case No. 170/2009 under Section 120B/121/121(A) of the Indian Penal Code (for short, ’IPC’) read with Section 25(1-B)(a) of the Arms Act, 1959 rela table to the F.I.R. dated 1.4.2009 stood arrested as well on 23.4.2010 in connec tion with Diyangmukh P.S. Case No. 3/2009 under Section 120(B)/121/121(A) IPC. I n course of the investigation taken up by the National Investigation Agency, Bas istha P.S. Case No. 170/2009 was re-registered as Special NIA Case No. 1/2009 an d eventually a chargesheet was submitted therein under Section 120(B)/121/121(A) IPC read with Section 16, 17, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967 (for short, hereinafter referred to as ’the 1967 Act’). Likely, in co urse of the investigation in Diyangmukh P.S. Case referred to hereinabove undert aken by the National Investigation Agency, it stood re-registered as Special NIA Case No. 2/2009 and a chargesheet in connection therewith has also been submitt ed on 19.10.2011 under Section 120(B)/121/121(A) IPC and Section 16, 17, 18, 19 and 20 of the UA(P) Act as well as Section 21(1)(d) Arms Act against the accused / appellant as well. The appellant’s application under Section 437 of the Code f or bail filed with the Special Judge, NIA, Assam in Special NIA Case No. 2/2009 (registered as Bail Petition No. 2192/2011 / Misc. Case No. 27/2011) having bee n rejected by the impugned order, he is in appeal. Mr Dey has emphatically argued that as the statements of the witnesses r ecorded under Section 161 CrPC and relied upon by the learned Court below do not relate to NIA Case No. 2/2009 in which the bail had been sought, the impugned o rder is patently non-est in law and is liable to be interfered with. Emphasizing that the appellant is in custody since 23.4.2010 and that there is no material whatsoever even to indicate his remote nexus with the alleged offences, the lear ned counsel has urged that he is in entitled to bail in Special NIA Case No. 2/2 009. In the alternative, Mr Dey has argued that even if the statements of the wi tnesses recorded under Section 161 CrPC referred to in the affidavit of the NIA are taken note of, the same do not even suggest any involvement of the appellan t in the offences arrayed in Special NIA Case No. 2/2009 and, therefore, the bar of Section 43-D(5) of the 1967 Act is not attracted to the facts of the instan t case and, consequently, the impugned order ought to be interfered with and a d irection for grant of bail in favour of the appellant ought to be issued in the interest of justice. In reply, Mr Das has argued with reference to the relevant extracts from the Case Diary of the Investigating Agency that the statements of the witnesses referred to in the order impugned as well as in the affidavit in no uncertain t erms pertain to Special NIA Case No. 2/2009 and a bare perusal thereof would rev eal an intimate nexus of the appellant with the offences alleged and, thus, the appeal ought to be dismissed in limine. On being queried by this Court, it is su bmitted at the Bar that the case relating to Special NIA Case No. 2/2009 is fixe d on 27.12.2011 for arguments by the defence on the issue of framing of charge. According to Mr Das, the length of detention of the appellant is not a relevant factor weighing with the prayer for grant of bail as has been held by the Apex C ourt in Kalyan Chandra Sarkar -vs- Rajesh Ranjan @ Pappu Yadav & Anr. (2004) 7 S CC 528. Mr Das has also contended that that this Court having rejected the appel lant’s prayer for bail in Special NIA Case No.2/2009 vide its order dated 22.6.2 010 on an exhaustive consideration of the materials in the Case Diary, in absenc e of any substantial alteration in the fact situation indicating lack of complic ity of the appellant in the offences alleged, the instant appeal ought to be dis missed in limine. We have extended our anxious consideration to the pleaded facts as well as the arguments advanced. That in the facts of the present case Section 43-D (5 ) of the 1967 Act is applicable is not in dispute. Section 43-D(5) with the pr oviso attached thereto being of considerable significance is quoted hereinbelow: 43-D(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, b e released on bail or on his own bond unless the Public Prosecutor has been give n an opportunity of being heard on the application for such release: Provided that such accused person shall not be released on bail or on hi s own bond if the Court, on a perusal of the case diary or the report made unde r section 173 of the Code is of the opinion that there are reasonable grounds fo r believing that the accusation against such person is prima facie true. . Incidentally, this Court by its order dated 22.6.2010 had earlier reject ed the appellant’s application for bail in Special NIA Case No.2/2009 albeit at a stage where chargesheet had not yet been submitted. A plain perusal of the sai d order reveals a reference to a decision of another Division Bench of this cour t in Criminal Appeal No. 12/2010 (Jayanta Kr. Ghosh -vs- State of Assam & Ors.) wherein it had been observed that the limitations imposed by Section 43D (5) & (6) are in addition to those embodied in Section 437 of the Code. Their Lordship s further observed that prima facie case would mean whether inference drawn on the basis of the materials available on record is a possible one or not and tha t if in undertaking such an exercise the Court finds that the accusation made is inherently improbable or wholly unbelievable, then a prima facie case would not be made out. Judged on the touchstone of the above principles embodied in Section 43- D of the 1967 Act and as propounded in Jayanta Kr. Ghosh (supra), this Court on a close scrutiny of the materials in the case diary of Special NIA Case No. 2/20 09 had earlier rejected the appellant’s application for bail in the same case. Be that as it may, as the above order in our opinion, does not pose an absolute prohibition on the part of the appellant to renew his prayer for bail i n the same case under changed circumstances and on fresh grounds, we make it cle ar that the instant appeal has been viewed by us in that context without being i nfluenced in any manner whatsoever by the earlier rejection as above. A plain reading of the extracts of the statements of the witnesses refer red to in the impugned order as well as in the affidavit of the NIA demonstrates in obvious terms that those relate to Special NIA Case No. 2/2009. The plea to the contrary taken on behalf of the appellant is, thus, belied by the contempora neous official records. Being conscious of the fact that we are responding to an application for bail in a case which is pending for consideration of the charge on 27.12.2011 and trial in case the accused persons are indicted of the offence s for which chargesheet(s) have been submitted, we, for obvious reasons, restrai n ourselves from recording our categorical findings on a threadbare analysis of the materials on record. Suffice it is to mention that having regard to the docu ments laid before us on behalf of the NIA, we are disinclined to sustain the pl ea raised on behalf of the appellant that the impugned order of rejection of bai l is based on no material whatsoever . To reiterate, the proviso to Section 43-D(5) of the 1967 Act mandates th at an accused person shall not be released on bail or on his own bond if the Cou rt on a perusal of the case diary or the report made under Section 173 of the Co de is of the opinion that there are reasonable grounds for believing that the ac cusation against such person is prima facie true. On a totality of the considerations of the relevant materials on records , we are constrained to hold that the order impugned in the instant appeal canno t be repudiated to be in violation of the letter and spirit of Section 43-D of t he Act. We leave it at that. According to us, there is no cogent or compelling reason to interfere wi th the order of rejection of the prayer for bail of the appellant. The appeal lacks in merit and is dismissed. The rejection of the appeal, we make it clear, would not come in any man ner in the way of the learned Trial Court in making an impartial analysis of the materials on record vis-à-vis the issue of framing of charge as well as the tri al in case it so eventuates. No costs.