Report No. 268

G. Special Laws

11.21 Bail provisions in special laws are stringent because the offences dealt with under these legislations are grave, and considering the nature and impact of such offences on the public, the law must provide strict scrutiny for bail under these laws. For example, all the major offences under the NDPS Act are non-bailable, yet the offenders are often granted bail by the courts on technical grounds. 276 To deal with the menace, unconditional bails must not be granted under the NDPS Act specially in cases involving commercial quantities. In relation to terrorism related cases, a higher standard of scrutiny must be exercised.

This higher scrutiny is prescribed by the law in the form of exception to bail where the accused person may endanger the safety of the society. The degree of violence towards others is implicit in such a charge against the accused. The frequency of that particular type of offence must also be considered where such offences are alleged. It must be noted that the Australian authority enacted the Anti- Terrorism Act 2004 and the Bail Amendment (Terrorism) Act 2004 which had the effect of reversing the presumption in favour of bail in terrorism cases277. The amendment provides that, where a person is charged with certain terrorism offences, bail must not be granted unless the bail authority is satisfied that exceptional circumstances exist to justify granting bail278.