The main legal point established in the judgment is the retrospective applicability of Section 43-D(5) of the UA(P)A and the need for judicious consideration of bail applications in serious offences, considering the severity of the charges, the nature of the evidence, and the likelihood of the offence being repeated.

JUDGMENT :

Vinod Chandran, J.

By the impugned order, the Special Court for Trial of NIA Cases, Ernakulam rejected the bail application filed by the appellant, who is accused No.9 in Crime No.465 of Kalamassery Police Station. In fact, twice earlier the bail applications of the very same accused were rejected by the Special Court, which orders were affirmed by this Court in Annexures-1 and 2.

2. The learned Counsel for the appellant compels us to consider the prayer again on two counts, one the appellant having not raised a ground, by inadvertence, at both the earlier instances. Then, the learned Counsel would contend that there is change in circumstance insofar as the earlier confession made by one of the accused having been retracted from. It is also submitted that though another co-accused has now succumbed to the pressure of the NIA and made a confession statement, as produced at Annexure-3, there is no allegation raised against the appellant. As to the ground inadvertently omitted at the earlier instance, the learned Counsel points out that Section 43-D(5) of the Unlawful Activities (Prevention) Act, 1967 ['UA(P)A' for brevity] came into the statute only with effect from 31.12.2008, prior to which the offences are alleged to have been committed and the crime registered. Reliance is placed on the decision in Hitendra Vishnu Thakur & Others v. State of Maharashtra & Others [ (1994) 4 SCC 602] to contend that there could be no retrospective effect given to the said provision. Reliance is also placed on the decision of the Hon'ble Supreme Court in Crl.A.No.98 of 2021 dated 01.02.2021 [Union of India v. K.A.Najeeb] which refused to interfere with the grant of bail by this Court in another case investigated by the NIA. The appellant has been incarcerated for more than five years, is the plea pressed.

3. Hitendra Vishnu Thakur considered the effect of the amendment made to Terrorist and Disruptive Activities (Prevention) Act, 1985 specifically to Section 20. Clause (b) of Section 20(4) stood amended with effect from 22nd May, 1993 and clause (bb) was newly introduced. As per the amendment, the period for grant of statutory bail was reduced from 'one year' specified under clause (b) to 180 days' and a provision at clause (bb) was inserted enabling the Designated Court to extend the period of detention beyond 180 days upto one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for detention. The ambit and scope of an Amending Act and its retrospective operation were culled out in the following manner in paragraph 25:

"(i) A statute which affects substantive rights is presumed to be prospective in operation, unless made retrospective, either expressly or by necessary intendment, whereas a Statute which merely affects procedure, unless such a construction is textually impossible is presumed to be retrospective in its application, should not be given an extended meaning, and should be strictly confined to its clearly defined limits.

(ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal, even though remedial, is substantive in nature.

(iii) Every litigant has a vested right in substantive law, but no such right exists in procedural law.

(iv) A procedural Statute should not generally speaking be applied retrospectively, where the result would be to create new disabilities or obligations, or to impose new duties in respect of transactions already accomplished.

(v) A Statute which not only changes the procedure but also creates a new rights and liabilities, shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication."

4. The amendment of 1993 was held to be retrospective since it was procedural in nature since it regulated the period of compulsory detention and the procedure for grant of bail. It was held that it applies only to cases which were pend