Ujjal Bhuyan, J.

1. The two appeals are before us on a reference made by the Division Bench to examine and decide the following two questions of law:-

"(i) Whether a person accused of an offence punishable under Chapters IV and VI of the Unlawful Activities (Prevention) Act, 1967 and is in detention for the same would not be entitled to a consideration for bail under section 43D (5) of the said Act once charge is framed against the accused for such offence?

(ii) Whether the view taken by a Division Bench of this High Court in Y. Brajabidhu Singh that once charge is framed against an accused for an offence punishable under Chapters IV and VI of the Unlawful Activities (Prevention) Act, 1967 and unless the same is challenged and set-aside by a superior court, he would not be entitled to bail in view of the proviso to sub-section 5 of section 43D of the said Act lays down the correct proposition of law?"

2. The referral order dated 15.07.2016 has succinctly placed the context in which the reference has been made and, therefore, it would be apposite to examine the referral order in its entirety, which is extracted hereunder:-

"The appellants are being prosecuted for offences under sections 148/302/149/436 & 506 of the Indian Penal Code read with sections 16 and 18 of the Unlawful Activities (Prevention) Act, 1967 (in short 'Act of 1967'). Trial of appellants is pending in the Special Court constituted under the provisions of National Investigation Agency Act, 2008 (in short "Act of 2008"). According to section 16(3) of the Act of 2008, the Special Court shall, for the purpose of trial of any offence, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session so far as may be in accordance with the procedure prescribed in the Code for the trial before a Court of Session. The Special Court therefore, framed the aforesaid charges against the appellants by exercising powers under section 228 of the Code of Criminal Procedure, 1973.

2. It is reported that trial has progressed substantially and number of prosecution witnesses have been examined.

3. The appellants, who are Forest Officers of the State Government and were posted at Manas National Park, applied for bail, but the Special Court, relying upon the judgment dated 19.06.2014 passed by a Division Bench of this Court in Criminal Appeal No. 117/2014 (Y. Brajabidhu Singh vs. National Investigation Agency), has rejected their applications. Aggrieved, the appellants have filed the present appeals.

4. Section 43D (5) of the Act of 1967 deals with releasing of accused in custody on bail. It reads as under:-

"Notwithstanding anything contained in the Code, no persons accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release.

Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima-facie true."

5. In the aforesaid case of Y. Brajabidhu Singh (supra), the Division Bench of this Court referring to Section 43D (5) of the Act of 1967 has held that once the charge is framed against an accused for an offence punishable under Chapter IV and VI of the Act of 1967 and unless the same is challenged and set aside by the superior court, there can be no scope during the trial to hold that accusation against the accused is not prima facie true. Meaning thereby that till charge framed for an offence as mentioned above is not set aside, there shall be presumption that there are reasonable grounds for believing that the accusation against the accused is prima facie true and he will not be entitled for bail in view of proviso to sub-section 5 of