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P.R. Shivakumar, J.—This Habeas Corpus Petition had been originally filed by the first Petitioner, Murugan, a practising lawyer, who claims
to be a human rights activist and member of Prisoners Release Movement. The Chief Secretary, Government of Tamil Nadu, as the Chairman of
Review Committee under TADA Act, has been arrayed as the first Respondent, whereas the Principal Secretary to the Government, Home
Department, Government of Tamil Nadu, is shown as the second Respondent. Though the petition was initially filed by Murugan, the first
Petitioner, when this Court posed a question to him as to whether the detenu concerned was having no objection for moving such a petition on his
behalf, the learned Counsel for the Petitioners, got a Vakalath from the detenu and filed it, pursuant to which the detenu Sundaramoorthy was
added as second Petitioner.
The second Petitioner/detenu Sundaramoorthy, son of Vedi, is facing trial before the Designated Court No. II, TADA, Chennai in C.C. No.
6/1993 for offences punishable u/s 120-B of IPC r/w Sections 4, 5 and 6 of Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter
referred to as TADA Act, 1987). The trial of the case had already begun and it had reached a final stage, when the case was reserved for
judgment. However, the same came to be reopened at the instance of the detenu/accused for the examination of defence witnesses. At that
juncture, the present Habeas Corpus Petition came to be filed with a prayer to issue a direction in the nature of a writ of Habeas Corpus calling for
the records of the second Respondent relating to the proceedings of the second Respondent in Letter No. 39920/POL.VII/2008-3 dated
21.05.2010 and the records of the meeting of the Review Committee under the TADA Act scheduled to be held on 07.06.2010 and quash the
same as illegal. It has also been prayed that the Respondents be directed to constitute a Review Committee with a retired High Court Judge, as its
Chairman, to consider the detention of the detenu Sundaramoorthy under TADA and to set him at liberty. The first Petitioner, in his affidavit, has
contended that the prolonged detention of the detenu Sundaramoorthy concerned in C.C. No. 6/1993 pending on the file of Designated Court No.
II, TADA, Chennai from 09.07.2007 is illegal and on that ground alone, he should be set at liberty.
The following are the contentions raised by the first Petitioner in his affidavit.
TADA Act expired on 22.05.1995 and as per the direction of the Supreme Court, a Review Committee headed by a retired judge of the High
Court should have been constituted to review the cases, which were pending on the date of expiry of TADA Act. C.C. No. 6/1993 on the file of
the Designatred Court No. II, TADA, Chennai, in which the detenu Sundaramoorthy is the accused, is one of such cases that were pending as on
the date of expiry of TADA Act and hence the detenu Sundaramoorthy gave a representation dated 18.03.2010 for transferring the case to the
regular court and also obtained a direction from the High Court to consider the said representation. Though a Review Committee has been
constituted to review the TADA cases and the committee considered the TADA case in which the detenu Sundaramoorthy is concerned, namely
C.C. No. 6/1993 on the file of Designated Court No. II, TADA, Chennai, the procedure was unfair and violative of Article 21 of the Constitution
of India, as the Review Committee was not headed by a retired Judge of the High Court. The deliberations of the Review Committee at its meeting
held on 07.06.2010 are also unjust, illegal and violative of Article 21 of the Constitution of India. Therefore, the first Petitioner, espousing the
cause of the detenu Sundaramoorthy, was constrained to approach the court with the present Habeas Corpus Petition for the above said relief with
a prayer for interim stay of all further proceedings of the Review Committee, pending disposal of the Habeas Corpus Petition.
In the counter affidavit and the additional counter affidavit filed on behalf of the Respondents, the following contentions have been raised.
i) The detention of V. Sundaramoorthy, son of Vedi concerned in C.C. No. 6/1993 on the file of Designated Court No. II, TADA, Chennai is
based on valid order of remand and as many as seven cases are pending against him in various courts. They are: 1) Cr. No. 80/1992 (TADA
Case) registered on the file Dharmapuri Railway Police, now pending on the file of Designated Court No. II, TADA, Chennai as C.C. No.
6/1993, 2) Cr. No. 104/2002 registered on the file of Uthangarai Police Station, which is now pending on the file of Special Court for POTA
cases, Poonamallee, Chennai as Special C.C. No. 5/2003, 3) Cr. No. 232/2007, registered on the file of Periyakulam Police Station, now
pending on the file of Judicial Magistrate, Periyakulam as PRC No. 14/2009, 4) Cr. No. 269/2001 registered on the file of Mathikonepalayam
Police Station, now pending on the file of Judicial Magistrate-I, Dharmapuri as C.C. No. 82/2007, 5) Cr. No. 162/2004 registered on the file of
Nagarasampatti Police Station, now pending on the file of Sessions Court, Krishnagiri as S.C. No. 15/2005, 6) Cr. No. 413/2004 registered on
the file of Nagarasampatti Police Station, now pending on the file of Sessions Court, Krishnagiri and 7) Cr. No. 117(A)/2004 registered on the file
of Koraput Police Station, Orissa State.
ii) It is correct to state that TADA Act, 1987, expired on 22.05.1995. But, it is not correct to state that the Review Committee was not constituted
in accordance with the directions of the Supreme Court. As per the judgment of the Supreme Court made in Kartar Singh v. State of Punjab, a
Review Committee consisting of the following persons 1) Chief Secretary - Chairperson, 2) Home Secretary, 3) Law Secretary, 4) Director
General of Police, Tamil Nadu, 5) Additional Director General of Police (Law and Order) and 6) Inspector General of Police (Intelligence) -
Members, was constituted to review the TADA cases, including C.C. No. 6/1993 in which the detenu/second Petitioner is concerned, the Review
Committee reviewed the said case in the past on ten occasions, namely on 20.09.2007, 11.12.2007, 13.01.2008, 04.06.2008, 22.10.2008,
18.12.2008, 01.04.2009, 05.08.2009, 15.12.2009 and 19.03.2010. However, the second Petitioner/detenue Sundaramoorthy again sent a
representation dated 18.03.2010 to the Government for reviewing his case in accordance with the dictum laid down by the Supreme Court in
Kartar Singh v. State of Punjab case and for transferring the case to regular court from the Designated Court No. II, TADA, Chennai. He had also
filed a writ petition in W.P. No. 5690/2010 seeking the issue of a writ of mandamus directing the Respondents to consider the aforesaid
representation. This Court, by order dated 29.04.2010, directed the Home Secretary to the Government of Tamil Nadu, to consider the request
of the second Petitioner and pass necessary orders in accordance with law on or before 11.06.2010. In compliance with the said order of this
Court made in W.P. No. 5690/2010, the State Government convened the Review Committee constituted based on G.O.(MS) No. 946, Home
(Police-VII) Department dated 18.08.1994 issued in accordance with the judgment of the Hon''ble Supreme Court made in Kartar Singh v. State
of Punjab case. The meeting of the Review Committee for consideration of the representation of the detenu Sundaramoorthy was scheduled to be
held on 07.06.2010. Under such circumstances, the first Petitioner chose to file the present Habeas Corpus Petition challenging the constitution of
the Review Committee and seeking the release of the detenu Sundaramoorthy, the second Petitioner.
iii) Unlike Review Committee constituted under POTA Repeal 2004, the Review Committee constituted for TADA cases shall periodically review
the case and pass orders till the case is disposed of by the Designated Court. In a similar case, namely Cr. No. 346/93 on the file of Kullanchavadi
Police Station, the accused therein by name Venkatesan filed a writ petition in W.P. No. 15561/2003 seeking withdrawal of the charges under
TADA Act, 1987 and the High Court dismissed the said writ petition with a direction to the trial court to proceed with the case on day to day
basis and a direction to the Screening Committee/Review Committee constituted in accordance with the directions of the apex court in Kartar
Singh v. State of Punjab, to make quarterly review of the case of the Petitioner therein notwithstanding the fact that the case before the Designated
Court would be progressing. Constitution of the Review Committee, as per the judgment of the Supreme Court made in Kartar Singh v. State of
Punjab was not challenged earlier and the representation of the second Petitioner (detenu) dated 18.03.2010 is also to the effect that his case must
be considered by the Review Committee constituted as per the directions of the Supreme Court in Kartar Singh v. State of Punjab. The
detenu/second Petitioner is not justified in seeking a direction for reconstitution of the committee which was constituted in accordance with the
directions of the Supreme Court in Kartar Singh v. State of Punjab and the present Habeas Corpus Petition is liable to be dismissed in limini, as the
same is not even maintainable.
We heard the submissions made by Mr. R. Sankarasubbu, learned Counsel for the Petitioners and by Mr. P. Kumaresan, learned Public
Prosecutor, on behalf of the State and this Court paid its anxious consideration to the same.
The Habeas Corpus Petition was originally filed by the first Petitioner alone purporting to espouse the cause of the second Petitioner on the
pretext that the first Petitioner was a human rights activist and a member of Prisoners Release Movement. The court was cautious to ensure that the
petition was not moved without the knowledge or against the wishes of the second Petitioner, whose release is sought for ultimately in the Habeas
Corpus Petition. In view of the said approach, Mr. R. Sankarasubbu, learned Counsel for the Petitioners, got Vakalath authorising him to appear
on behalf of the second Petitioner also and thus the detenu, whose release is sought for in the Habeas Corpus Petition, has been impleaded as the
second Petitioner. Though the ultimate relief sought for in the petition is the release of the second Petitioner from custody, the same is sought for
only consequent to the other relief, namely re-constitution of the Review Committee under the TADA Act, 1987.
The continued detention of the second Petitioner pending disposal of the TADA case against him, namely C.C. No. 6/1993 on the file of the
Designated Court No. II, TADA, Chennai is challenged, as illegal and violative of Article 21 of the Constitution of India on the ground that the said
case against the second Petitioner was not considered by a Review Committee properly constituted in accordance with the direction issued by the
Supreme Court in a public interest litigation, namely Shaheem Welfare Association v. Union of India and Ors. reported in 1996 SCC 366 : 1996 2
L.W. (Crl.) 414. According to the submissions made on behalf of the Petitioners, on the expiry of the TADA Act, 1987, when the plight of the
undertrial prisoners facing charges under TADA Act was brought to the notice of the apex court in the public interest litigation in the above
mentioned case, the Hon''ble Supreme Court directed constitution of a Review Committee headed by a retired judge of the High Court and
despite such a direction, the case of the second Petitioner was not referred to such a Review Committee headed by a retired judge of the High
Court, as its Chairperson and thus the continued detention of the second Petitioner is illegal, unlawful and in violation of the fundamental rights
guaranteed under Article 21 of the Constitution of India. In short, the point raised by the Petitioners is that the continued detention of the second
Petitioner has become unsustainable because of the failure to reconstitute the Review Committee as per the dictum laid down in Shaheem Welfare
Association''s case and hence the second Petitioner is entitled to his freedom by way of a direction to the Respondents.
On the other hand, it is the contention of the learned Public Prosecutor that the Review Committee for reviewing the TADA cases was
constituted in accordance with the dictum laid down by a Constitutional bench of the Hon''ble Supreme Court in Kartar Singh v. State of Punjab
reported in 1994 SCC 899 : 1994 2 L.W. (Crl.) 422; that the said Committee considered the case of the second Petitioner ten times on earlier
occasion; that after the last representation made by the second Petitioner dated 18.03.2010 was received by the Government, the same was
referred to the said Review Committee and that when the Review Committee was scheduled to meet on 07.06.2010, the first Petitioner
approached this Court with this Habeas Corpus Petition with ulterior motive. It is the further contention of the learned Public Prosecutor that the
case against the second Petitioner, namely C.C. No. 6/1993 on the file of the Designated Court No. II, TADA, Chennai, had reached the final
stage and was right for pronouncing judgment, from which stage, successive steps are being taken to prevent a judgment being pronounced in the
said case and that the real intention with which the representation was given and the Habeas Corpus Petition was filed, is to protract the case and
to try to get the second Petitioner released on bail showing the delay. It is the further contention of the learned Public Prosecutor that the
unrelenting efforts made by the second Petitioner to come out of the custody before a judgment would be pronounced in the TADA case, in which
he figures as the accused, will show malafide and lack of bonafide.
The Terrorist and Disruptive Activities (Prevention) Act, 1987, was enacted and as per Section 1(3) of the said Act, the same shall be deemed
to have come into force on 24th day of May, 1987. Initially, it was mean for to be in force for two years. Subsequently, by way of amendments,
Section 1(4) of TADA Act, 1987 was amended and as per the amended Section 1(4) as it stood amended by the last of such amending Acts viz.
Act No. 43 of 1993, it was to be in force for two years from 24.05.1987. At the end of the above said period of eight years, the Act was not
extended further. Therefore, the Act lapsed on 23.05.1995 and not on 22.05.1995, as stated in the affidavit of the first Petitioner. When a penal
act is repealed or allowed to lapse, in order to ensure that the violations of such penal provision during its currency in force, do not go unpunished,
unless the legislature decides otherwise, and for preserving any right, privilege, obligation or liability accrued or incurred under the Act, it is usual to
provide either in the repealing Act or in the original Act itself a saving clause for the continuation of the proceedings initiated under such Act.
Similar provision had been incorporated in the TADA Act, 1987 also in the form of Section 1(4) and it reads as follows:
(4) It shall remain in force for a period of eight years from the 24th day of May, 1987, but its expiry under the operation of this Sub-section shall
not affect
(a) the previous operation of, or anything duly done or suffered under this Act or any rule made thereunder or any order made under any such rule,
or
(b) any right, privilege, obligation or liability acquired, accrued or incurred under this Act or any rule made thereunder or any order made under
any such rule, or
(c) any penalty, forfeiture or punishment incurred in respect of any offence under this Act or any contravention of any rule made under this Act or
of any order made under any such rule, or
(d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as
aforesaid, and any investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or
punishment may be imposed as if this Act had not expired.
A reading of Section 1(4) of TADA Act 28 of 1987 makes it clear that the criminal proceedings, cases registered, investigations started and the
cases taken on file for TADA offences are saved despite the fact that the Act was allowed to lapse with 23.05.1995.
The learned Public Prosecutor invited the attention of the court to the factual background in which this Habeas Corpus Petition happened to be
filed and the same is not disputed, but admitted on the side of the Petitioners. The above mentioned factual background is as follows:
i) In the present case, the case against the second Petitioner and others for offences including TADA offences, was registered long back in 1992
and the final report submitted originally numbered as C.C. No. 3/1993. Since the second Petitioner as absconding accused, the court had to split
up the case against the second Petitioner and it was separately numbered as C.C. No. 6/1993. All these things happened while the TADA Act
was very much in force. The second Petitioner, who was absconding and evading the process of law, came to be arrested in another case,
pursuant to which he was produced in the above said TADA case, namely C.C. No. 6/1993 on the file of Designated Court No. II, TADA,
Chennai on P.T. warrant and remanded in that case also. It happened in the year 2007. After his remand in the above TADA case, there was no
significant delay in the trial of the case at the instance of the prosecution.
ii) On the other hand, the second Petitioner caused filing of Habeas Corpus Petitions for his release and in one such HCP, namely H.C.P. No.
1480/2009 while dismissing the same, this Court directed the trial court to complete examination of the prosecution witnesses on or before a date
fixed in the said order. The same was complied with by the Designated Court No. II, TADA, Chennai and after examination of the accused
(second Petitioner herein) u/s 313 Code of Criminal Procedure, arguments were heard, since the second Petitioner stated that he had no evidence
to be adduced on his side and the case stood posted to 29.03.2010 for pronouncing judgment. Under the said circumstances, the second
Petitioner seems to have caused filing of W.P. No. 5690 of 2010 seeking his release based on the contention that the mechanical extension of
custody between hearing dates by the trial court was illegal and also the present HCP based on the contention that his continued custody is illegal,
because the Review Committee constituted by the government, is not headed by a retired judge of High Court as its Chairman, as per the dictum
laid down by the Hon''ble Supreme Court in Shaheem Welfare Association''s case. The Petitioners also got an interim order of stay of proceedings
of the Review Committee scheduled to meet on 07.06.2010. The second Petitioner also took parallel steps to stall the criminal case and prevent
the Designated Court No. II, TADA, Chennai from pronouncing judgment by filing petitions to transfer the case to regular court and seeking the
leave of the court to adduce defence evidence. The Designated Court No. II, TADA, Chennai, allowed the petition seeking the leave of the court
to adduce defence evidence and admittedly defence witnesses were also examined and the case is now ripe for judgment, if further arguments are
advanced. Under such circumstances alone, the present Habeas Corpus Petition came to be filed.
In the above said factual background, the contentions raised by both sides in this case have to be considered.
The main contention of the learned Counsel for the Petitioners is that the constitution of the Review Committee is not in accordance with the
direction issued by the Hon''ble Supreme Court and the Review Committee needs reconstitution. According to the submissions of the learned
Counsel for the Petitioners, the Review Committee to review TADA cases, should be headed by a retired High Court Judge as its chairperson,
whereas in the Committee appointed by the Government, the Chief Secretary functions as its Chairperson. It is the further contention of the learned
Counsel for the Petitioners that since the Committee has not been properly constituted, the second Petitioner is entitled to his liberty. In support of
his contention, the learned Counsel for the Petitioners, relied on the following judgments:
i) The Government of Tamil Nadu and Ors. v. Union of India and Anr. reported in 2004 (1) T.N.L.R. 429 (Mad);
ii) R.R. Gopal @ Nakkheeran Gopal v. The Secretary, Home Department, Government of Tamil Nadu, St. Fort George, Chennai-9, 2. The
Deputy Superintendent of Police, Head Quarters, CBCID, Chennai Case reported in 2005 2 L.W.(Crl.) 629;
iii) E. Shahul Hameed v. State of Tamil Nadu rep. By its Chief Secretary reported in (2007) 1 MLJ (Crl) 425;
iv) Usmanbhai Dawoodbhai Memon and Others Vs. State of Gujarat, ;
v) Vijaykumar Baldev Mishra @ Sharma Vs. State of Maharashtra, and
vi) Shaheem Welfare Association v. Union of India and Ors. reported in 1996 SCC 366.
The judgment of a Division Bench of this Court in Government of Tamil Nadu and Ors. v. Union of India and Anr. reported in 2004 (1)
T.N.L.R. 429 (Mad) relied on by the learned Counsel for the Petitioners, no way supports the contention of the learned Counsel for the
Petitioners. The original POTA 2002, contained only three Sub-clauses in Section 60. By way of amendment in 2003, Sub-clauses 4 to 6 were
also added. As per the amended Section 60, the Central Government and each State Government had to constitute one or more Review
Committees headed by a sitting or retired High Court judge as its Chairperson for the purposes of the said Act. As per the original Section 60,
powers were given to the Review Committee to review the matters mentioned in Sections 19, 40 and 46. The said purposes are not relevant to the
case on hand. Only by the said amendment, power was given to the Review Committee to consider an individual case on an application being filed
by an aggrieved party as to whether there is a prima-facie case for proceeding against the accused under POTA. Sub-clause (1) of Section 60,
Sub-clause (6) gives primacy to the directions issued by the Committee constituted by the Central Government. One such direction issued by the
Review Committee constituted by the Central Government to place the records of a particular case for the consideration, was challenged in the
above said case contending that the direction of the Committee encroached upon the judicial powers of the State. The court upheld the power of
the Committee constituted by the Central Government under POTA to issue such directions. However, an observation was also made to the effect
that when such directions would be issued in a case in which charges were framed in the court, then on a representation by the Public Prosecutor
to withdraw prosecution, the court should decide u/s 321 of the Code of Criminal Procedure and that ultimate arbiter would be the special court,
which had to consider the matter in the light of the opinion of the Review Committee.
The said finding shall not support the case of the Petitioner and in fact it shall support the case of the State. However, the learned Counsel for
the Petitioners has made an attempt to contend that the said judgment was cited only for a limited purpose of showing that Section 60 of POTA
prescribed the constitution of committees headed by a sitting or retired High Court judge; that the same was pursuant to the march of law from
Kartar Singh''s case and Shaheem Welfare Association''s case to the date of passing of POTA. POTA came into force seven years after the lapse
of TADA. Therefore, the mere fact that POTA contains a provision for constitution of committees headed by a sitting or retired High Court judge,
cannot be interpreted to mean the restatement of law that was in force prior to the enactment of POTA.
The other judgment relied on by the learned Counsel for the Petitioners, which is of another Division Bench of this Court, namely R.R. Gopal
@ Nakkheeran Gopal v. The Secretary, Home Department, Government of Tamil Nadu, St. Fort George, Chennai-9, 2. The Deputy
Superintendent of Police, Head Quarters, CBCID, Chennai reported in 2005 2 L.W.(Crl.) 629, is not relevant to the facts of the case on hand, as
it is simply dealt with the validity of a Government Order notifying the entire State of Tamil Nadu as areas prone to terrorism and the same was
challenged as one issued in mechanical manner.
The other judgment, namely E. Shahul Hameed v. State of Tamil Nadu rep. by its Chief Secretary reported in (2007) 1 MLJ (Crl) 425 relied
on by the learned Counsel for the Petitioners also does not support the contention of the Petitioners. Though a reference to the observations made
by the Hon''ble Supreme Court in Shaheem Welfare Association v. Union of India that a more independent and objective scrutiny of TADA cases
by a Committee headed by a retired judge was required to be constituted was made therein, nevertheless it was observed by the Division Bench
that there was no dispute that in the said case before the Division Bench, such exercise had not been done by the State Government. Ultimately in
paragraph 9 of the judgment, the Division Bench held that the Review Committee/Screening Committee constituted in terms of the decision in
Kartar Singh''s case could always decide as to whether, in its opinion, the case was a fit one to proceed even if it was at the trial stage. Apart from
making such an observation and issuing a direction to refer the case of the Petitioner therein to the Review Committee constituted in terms of the
dictum made in Kartar Singh''s case, the Divsion Bench has not issued any direction that such a Committee should be headed by a sitting or retired
judge of the High Court. Therefore, the said judgment also shall not support the case of the Petitioner.
Usmanbhai Dawoodbhai Memon and Others Vs. State of Gujarat, cited by the learned Counsel for the Petitioners simply deals with the
matters to be considered in grant of bail by Designated courts in TADA cases. The same does not deal with the question of the details of
constitution of the Review Committee/Screening Committee.
In Vijaykumar Baldev Mishra @ Sharma Vs. State of Maharashtra, , the Hon''ble Supreme Court dealt with the question of the correctness of
the refusal on the part of the Designated Court to grant permission to the State to withdraw the prosecution of a TADA case. It was held therein
that the courts'' function in such matters, were not only supplementary at a higher level to those of the executive, but were also intended to prevent
abuse and that consent for withdrawal of prosecution has to be accorded after a careful and proper scrutiny on the grounds on which the
application for consent was made. However, on facts, it was held therein that the order of the Designated Court refusing to grant permission to
withdraw prosecution was liable to be set aside. The said judgment does not deal with the question as to how the Review Committee is to be
constituted. However, the learned Counsel for the Petitioners relied on the separate, but concurrent judgment of his Lordship Justice Markandey
Katju, wherein an opinion was expressed that Section 1(4) of TADA Act, namely the saving clause, was violative of Article 14 of the Constitution
of India. A careful reading of the separate opinion of his Lordship will show that the said opinion was only an obiter dictum and not final
adjudication on the question of constitution/validity of Section 1(4). After expressing such opinion, His Lordship has incorporated the following
message also, which will make it clear that the said opinion was not construed to be the final pronouncement on the question of validity of Section
1(4) of TADA Act, 1987.
Since this point has not been raised in the appeal I am not giving any final opinion in the matter, but the point, to my mind, is of such a vital and
wide constitutional importance that I thought it fit to express my opinion on the same, so that this opinion an be considered in other cases where
prosecutions under TADA are going on or where convictions have been made in relation to the offences u/s 3 alleged to have been committed
before 24.05.1995.
The said paragraph will make it clear that even His Lordship, by separate opinion, has not finally decided that question and has left open the same
to be decided in future cases. Therefore, the same shall not render any help to the Petitioners in succeeding in this petition.
The only relevant judgment cited by the learned Counsel for the Petitioners is the judgment of the Hon''ble Supreme Court in Shaheem Welfare
Association v. Union of India and Ors. reported in 1996 SCC(Cri) 366. In the said case, after referring to the judgment of the Constitutional
bench of the Hon''ble Supreme Court in Kartar Singh v. State of Punjab, their Lordships made the following observations:
Looking to the nature of the crime and the paramount interest of the society this Court held that the conditions imposed u/s 20(8) for the release
of TADA undertrials on bail did not violate Articles 14 and 21 of the Constitution. It, however, gave directions for the constitution of
Review/Screening Committees in each State and at the Centre to ensure that the provisions of TADA were correctly invoked in the cases pending
before the Designated Courts. The purpose of constituting such committees was to ensure a higher level of scrutiny regarding applicability of the
provisions of TADA to the case in point. The need for such committees is amply borne out by the results which have been annexed in the affidavits
filed on behalf of the Union of India before us relating to the number of cases so reviewed by the Review Committees where it has been found that
the provisions of TADA ought not to have been applied. We are, however, sorry to note that not a single case filed by CBI has been so reviewed
although the Review Committee, it is said, has examined all the cases. A more independent and objective scrutiny of these cases by a committee
headed by a retired Judge is obviously necessary.
But, ultimately it resulted in directions regarding classification of TADA accused into four categories, namely (a) hardcore undertrials whose release
would prejudice the prosecution case and whose liberty may prove to be a menace to society in general and to the complainant and prosecution
witnesses in particular; (b) other undertrials whose overt acts or involvement directly attract Sections 3 and/or 4 of the TADA Act; (c) undertrials
who are roped in, not because of any activity directly attracting Sections 3 and 4, but by virtue of Section 120-B or 147 IPC and (d) those
undertrials who were found possessing incriminating articles in notified areas and are booked u/s 5 of TADA and recommendation of different
yardsticks in grant of bail to persons falling in each one of the categories. It has also been observed therein that, even in cases wherein bail could
be refused, it was essential that the Review Committee examines the case against each accused to ensure that TADA provisions were not
unnecessarily invoked. Of course it was observed in the said judgment that more objective approach to the plight of TADA detenus should be
made and for that purpose, scrutiny of the cases by a Committee headed by a retired Judge was obviously necessary. But, a close reading of the
observation found in paragraph 5 of the said judgment will make it clear that the said observation was made in respect of particular category of
cases and not generally. The last two sentences of the paragraph are reproduced for better appreciation:
We are, however, sorry to note that not a single case filed by CBI has been so reviewed although the Review Committee, it is said, has examined
all the cases. A more independent and objective scrutiny of these cases by a committee headed by a retired Judge is obviously necessary.
The same can be interpreted to mean the cases filed by CBI and not all cases under TADA in general. Moreover, it is not in dispute that the
dictum laid down by the Constitutional Bench of the apex court in Kartar Singh v. State of Punjab still holds the field.
The learned Public Prosecutor very much relied on the contention that the Review Committee to review the case of the second Petitioner, was
constituted in accordance with the Government Order issued in compliance with the direction issued by the Constitutional Bench of the Hon''ble
Supreme Court in Kartar Singh''s case, which has named the persons to be the Chairperson and members of the Committee and that the said
direction of the Constitutional bench cannot be assumed to have been modified by a bench of less number of judges of the Hon''ble Supreme
Court. In Kartar Singh v. State of Punjab reported in 1994 SCC 899, the Constitutional Bench of the Hon''ble Supreme Court upheld all the
provisions of TADA Act, 1987, except Section 22 of the said Act, which was declared unconstitutional and struck down. While upholding all
other provisions of TADA Act, considering the fact that the Act contains harsh, drastic and stringent provisions, the Hon''ble Supreme Court
directed constitution of Screening/Review Committees by Central and State Governments to review the TADA cases. In paragraph 265 of the
said judgment, the Hon''ble Supreme Court has held as follows:
In order to ensure higher level of scrutiny and applicability of TADA Act, there must be a Screening Committee or a Review Committee
constituted by the Central Government consisting of the Home Secretary, Law Secretary and other secretaries concerned of the various
Departments to review all the TADA cases instituted by the Central Government as well as to have a quarterly administrative review, reviewing the
States'' action in the application of the TADA provisions in the respective States, and the incidental questions arising in relation thereto. Similarly,
there must be a Screening or Review Committee at the State level constituted by the respective states consisting of the Chief Secretary, Home
Secretary, Law Secretary, Director General of Police (Law and Order) and other officials, as the respective Government, may think it fit to review
the action of the enforcing authorities under the Act and screen the cases registered under the provisions of the Act and decide the further course
of action in every matter and so on.
Such a clear direction naming the persons, who are to be in the Committee, was issued by the Constitutional bench of the Hon''ble Supreme Court.
In accordance with the said direction, the Government of Tamil Nadu has issued G.O. Ms. No. 946 Home Department dated 18.08.1994
constituting a Review Committee consisting of the following persons to review the TADA cases for every quarter.
i) Chief Secretary - Chairman
ii) Secretary, Home- Member
iii) Secretary, Law- Member
iv) Director General of Police- Member
v) Addl. Director General of Police- Member
(Law and Order)
vi) Inspr.-General of Police, TANSIT- Member-Secretary
The Committee, thus constituted, had, on 10 previous occasions considered the case of the second Petitioner and decided in favour of the
continuation of proceeding against him under TADA Act. Lastly, on 18.03.2010 also, the second Petitioner has given a representation for such a
review and when the Committee was scheduled to meet on 07.06.2010, the present Habeas Corpus Petition came to be filed. As pointed out
supra, this petition and the other Habeas Corpus Petition, namely H.C.P. No. 1480/2009, were filed when the TADA case was at its last lap and
was due for pronouncing judgment. The Committee constituted by the above said Government Order, cannot be said to be illegal or against law or
not in conformity with the dictum of the apex court, since the same has been constituted in accordance with the above said direction of the
Constitutional bench of the Hon''ble Supreme Court which still holds the field. Therefore, the prayer of the Petitioners either to hold the constitution
of the Review Committee invalid or for the re-constitution of the Committee with a sitting or a retired Judge of the High Court as its Chairperson,
cannot be sustained. The further prayer of the second Petitioner that he should be set at liberty, as his case was not considered by a valid Review
Committee, also deserves to be discountenanced.
The very intention of the Petitioner is manifest in the successive steps taken by him to prevent a judgment being pronounced in the TADA case,
in which he figures as the accused even though the case has reached its last stage. The factual background narrated supra will show various steps
taken successively by the 2nd Petitioner to stall the progress of the TADA case and prevent the pronouncement of judgment. If there is no
incriminating evidence, he has got the chance of being acquitted and can challenge the judgment if it ends in conviction. Inspite of the same, the
second Petitioner is bent upon preventing a judgment being pronounced in his case and that itself shall be enough to hold that the second Petitioner
is not entitled to any indulgence.
For all the reasons stated above, this Court comes to the conclusion that there is no merit in the Habeas Corpus Petition and the same
deserves to be dismissed. Accordingly, the Habeas Corpus Petition is dismissed. Consequently, connected M.P. No. 1 of 2010 is also dismissed.