The appellants herein have preferred two different appeals under section 21(4) of the National Investigation Agency Act, 2008, ('the NIA Act'). The appellant, Mrs. Malasawmkimi, has approached this court, by way of Criminal Appeal No. 171/2011, aggrieved by the order, dated 9.9.2011, passed by the learned Special Judge, NIA, Guwahati, Assam, rejecting the appellant's prayer for bail in Misc. Case No.25/2011, arising out of NIA Case No.01/2009, under sections 120B/121/121A, IPC read with sections 16, 17, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967. On the other hand, the appellant, George Lawmthang, has preferred an appeal, which has given rise to Crl. Appeal No. 65/2012, aggrieved by the order, dated 23.9.2011, passed by the learned Special Judge, NIA, Guwahati, Assam, in Misc. (Bail) Case No. 30/2011, arising out of in NIA case 01/2009.

2. By this common judgment and order, we propose to dispose of both these appeals together inasmuch as both these appeals are closely inter-linked and, on the request, made by the learned counsel for the parties concerned, have been heard together.

3. We have accordingly heard Mr. D.K. Mishra, learned senior counsel, for the accused-appellants, and Mr. D. K. Das, learned Senior counsel, appearing on behalf of the National Investigation Agency.

Background facts

4. The material facts, giving rise to the present appeals, may, in brief, be set out as under :

(i) Some significant amendments had been made in the Unlawful Activities (Prevention) Act, 1967, ('the UA(P) Act') by the Unlawful Activities (Prevention) Amendment Act, 2008, the amendments having come into force on 31.12.2008, which introduced and defined certain terms, such as, terrorist act, terrorist gang, terrorist organization, unlawful association and unlawful activity and made, inter alia, punishable a 'terrorist act' under section 16 and, by section 17, while the UA(P) Act, as amended by the Unlawful Activities (Prevention) Amendment Act, 2008, made raising of fund for terrorist act punishable, the UA(P) Act also provided punishment for conspiracy, act of abetment, etc., for commission of terrorist act or any act preparatory to the commission of terrorist act. This apart, the UA(P) Act made 'membership' of a terrorist gang or terrorist organization punishable offences and also provided punishment for those, who hold or held proceeds of terrorism. The UA(P) Act made, under section 38, even 'association' by a person with a terrorist organization a punishable offence, if one associates with a terrorist organization with intention to further its activities or if he professes to be associated with a terrorist organization with intention to further its activities.

(ii) The UA(P) Amendment Act, 2008, has also introduced section 43D and put restrictions, by the proviso to sub-section (5) of section 43D, on the court's power to grant bail by imposing condition that an accused shall not be released on bail or on his own bond if the court, on perusal of the case diary, or on the report, made under section 173 of the Code of Criminal Procedure ('the Code'), is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. Thus, the UA(P) Act, 1967, as the same stands today, puts serious fetters on the court's discretion to allow an accused to go on bail.

(iii) Yet another development from the enactment of NIA Act, 2008, which came into force on 31.12.2008, is that the Central Government stands empowered to constitute a special agency to be called National Investigation Agency (in short, NIA) for investigation and prosecution of offences under the acts specified in the Schedule of the NIA Act. Section 11 also empowers the Central Government to constitute Special Courts and, it is out of the order, passed by such a Special Court rejecting bail of the present appellant, that this appeal has been preferred as provided by section 21(1) of the NIA Act read with section