S. Viola Selvin vs State of Tamil Nadu

T. Jayarama Chouta, J.—This Habeas Corpus Petition has been filed by one of the detenu''s wife directing the Respondents to produce the detenus (1) Selvin S/o. Dasan (2) Jayakumar S/o. Joseph, (3) Vijay @ Vijayaran-gam S/o. Rajendran, (4) Edwin S/o. Solomon Nadar, (5) Kadir @ Kadirvelu, (6) Velusamy S/o. Asirvatham, (7) An and Samuel S/o. Edwin Selvaraj (8) Ravi S/o. Rosappoo Nadar, (9) Dharman S/o. Gopalakrishnan Nadar, (10) Pagalavan S/o. Durairaj Nadar, (11) Karuppusamy S/o. Alagar-samy Nadar, before this Court and set them at liberty.

The necessary facts for the purpose of disposal for this Habeas Corpus Petition are briefly stated as follows: On 26.12.1991 at about 8.45 p.m. the detenu Karate Selvin along with 11 others formed themselves into an unlawful assembly, pursuant to which they indulged in terrorist activities, in the course of which two persons were indiscriminately butchered and done to death. Both preceding and after this gruesome occurrence which took place near a public market, country made bombs were thrown and as a result of the explosion therefrom, one of the victims by name Sowkath Ali who was a member of the general public, sustained blast injures, The public who were surprised at the sudden and ghastly nature of the occurrence, ran helter-shelter being afraid of their lives. The said Selvin @ Karate Selvin and the co-accused struck terror in the minds of the general public in the course of the aforesaid terrorist act., After registering a case in Cr. No. 1284 of 1990 for the offences under Sections 3, 4 and 6 of the Terrorist and Disruptive Activities (Prevention) Act, 1987, Section 3 of the Explosives substances Act and u/s 302 read with Section 109 of the Indian Penal Code on the file of the Palayamkottai police station and after completing the investigation a charge sheet has been filed before the Principal Sessions Judge, Tirunelveli in TADA Case No. 1 of 1992 which is pending trial after framing charges for the above said offences.

In support of this Habeas Corpus Petition, the Petitioner sworn to an affidavit wherein she has stated that the detenus are innocent and the second Respondent with a motive to please complainant party has included the offence under the provisions of the Terrorist and Disruptive Activities (Prevention) Act 1987 (hereinafter referred to as TADA Act), which is totally absent. She has further stated that even if the entire allegations contained in the complaint are taken on its face value, no offence under TADA is made out. Even according to the complaint that the detenus wanted to teach a lesson to the deceased who earlier attacked the detenus with lethal weapons and bombs and the complaining party is facing trial for the said offences under the ordinary law. On these grounds, she pleaded that there is not even an iota of material to invoke the provisions of the TADA Act.

She has also pleaded as directed by the supreme court in Kartar Singh v. State of Punjab (1994 SCC (Crl.) 899 : 1994 2 L.W. (Crl.) 422) the Government has not reviewed the pending prosecution by constituting a Review Committee consisting of the top ranking officials of the Government eventhough a representation was made on 11.3.94 on behalf of the detenus and hence, there is breach of Supreme Court direction which has violated Article 21 of the Constitution of India. The affidavit further reads that false implication of faction fights between two factions of the two communities cannot be, by any stretch of imagination construed as TADA Act. Further keeping the persons for over 3 1/2 years without trial is violative of Article 21 of the Constitution of India and also Section 309 of the Code of Criminal Procedure.

The Petitioner also filed an additional affidavit bringing to the notice of the Court that one Edwin, the 4th detenue in this case had lodged a complaint to the Respondent Police and the said complaint was registered in Cr. No. 1150 of 1991 for offences under Sections 147, 148, 336, 307 read with Section 109 of the Indian Penal code and Section 5(1) of the Indian Explosives Substances Act. She has stated that the leaders of the rival gang politically wielded more influence in the Governmental apparatus and the Police machinery has not invoked the provisions of the TADA Act wherein, in the present case, they have invoked the provisions of the said Act. The said hostile attitude of the Police is amounting to unfair treatment of the persons who are similarly placed. The moment the rival gang were charge sheeted under the ordinary penal law, the detenus also should have been directed to face charges under the ordinary penal law. Hence the initiation of TADA Act and detention is amounting to unfair and colourable exercise of Power for ulterior motives and the same could never be countenanced in the eye of law. The said hostile discrimination even though it was brought to the notice of the Government and the Review Committee between persons similarly placed has not treated it properly and has taken hostile attitude as against the detenus. The unequal treatment of equals is amounting to an act hit by Article 14 of the Constitution as the case and counter case to be tried by the same judge to appreciate the facts and circumstances of the case and to render just decision of the case. The case against the detenus is tried by the Designated Court, whereas the case against the rival gang for the similar offence would be tried by the Assistant Sessions Court which will frustrate justice.

She has further deposed that the TADA Act is no longer in force and the saving clause could not help the prosecution to prove their case under the dead Act. The Legislature in its wisdom removed all the discrimination in procedure in between the ordinary prosecution under the penal law and the TADA Act. Under these circumstances, she has prayed this Court to issue a Writ of Habeas Corpus directing the Respondents to release the detenus forthwith.

On behalf of the second Respondent, one K. Thondiraj, Inspector of Police, Palayamkottai has filed a counter-affidavit denying all the allegations contained in the affidavit of the Petitioner. He has pleaded that the Habeas Corpus Petition is not maintainable either in law or on the basis of the averments made and the contentions raised in the affidavit filed in support of reliefs sought for by the Petitioner. He has also given a brief of facts and circumstances of the case for the purpose of appreciating the issues arising for consideration in its proper perspective. After narrating the incident in detail, he has submitted that the act committed by the detenus is a terrorist act and there is prima facie evidence incriminating all the co-accussed in the case. As many as 19 charges for offences punishable under the provisions of the TADA Act as well as the Indian Penal code and Indian Explosives substances Act, 1908 had been framed by the Designated Court (Principal Sessions Judge, Tirunelveli) after hearing the accused represented by their counsel and the trial of the case itself was scheduled to commence on 16.3.95 when six witnesses had been summoned on the side of the prosecution who were also present on that day, but at the request of the counsel for the accused, the trial was adjourned to 1.8.1995 to 4.8.1995 for examination of twenty witnesses. On 1.8.1995, four witnesses were present but again at the request of the counsel for the accused, the trial was adjourned to 18.9.1995. As of now, the trial is to commence on 18.9.1995.

He submitted that the charges have been framed in the said case as long back as on 15.11.1994 and denied the fact that the provisions of the TADA Act, were deliberately not invoked against the accused belonging to the other group either on the basis of the caste or otherwise. He also denied the allegations that the provisions of the TADA Act were invoked in the present case with ulterior motive and there was hostile discrimination. He has stated that by virtue of Section 1(4) of the said Act all prosecutions launched when the provisions of Act 28 of 1987 was in force are not effaced as a result of the repeal of the enactment. It is precisely to provide for such a contingent that the aforesaid Section had been introduced in Act 28 of 1987. He has submitted that the charges have been framed on the basis of the documents relied upon by the persecution as contemplated u/s 174 of the Code of Criminal Procedure and upon hearing the arguments advanced on behalf of the accused and the Prosecution as well and that it will be too much to say mat the act committed by the detenus does not amount to an act within the purview of the TADA Act.

As far as the Review Committee is concerned the deponent has stated that the state Government has appointed in High Power Committee and did review of the cases that were pending before the designated courts. Even in the decisions Kartar Singh v. State of Punjab (1994 Cri.L.J. 3139 : 1994 2 L.W. (Crl.) 422) , the Supreme Court after dealing with Section 15 of the Act, had chosen to set out certain guidelines while expressly stating that it was left to the appropriate Central ana State governments to legislate on these enactments. A Division Bench of this Court has recently held in H.C.P. No. 223 of 1995 (Since reported in page 157 of this issue Thangamani v. Inspector of Police, ''Q'' Branch Police, Trichy), that the guidelines given by die Supreme Court are only to be taken note of by the respective Central and State Governments and incorporate them by appropriate amendments in the Act and Rules.

He submitted that in as much as Act 28 of 19S7 had been repealed the subject proceedings would be terminated when Section 1(4) of the TADA Act has been incorporated is not sustainable in law. He has further submitted that Act 28 of 1987 is a self-contained Code which provides for defence, the nature of the offences, the procedure to be adopted in the trial of such offences and the Presiding Officers who are competent to try such accused. On these grounds the second Respondent has requested this Court to dismiss the above petition as devoid of the merits.

Heard Sri. K.G. Kannabiran, Senior Counsel for Mr. R. Sankara Subbu for the Petitioner and Sri B. Sriramulu, learned Public Prosecutor on behalf of the Respondents and perused the records.

Learned Senior Counsel appearing for the Petitioner raised the following contentions: (1) That the allegation in the complaint as well as the materials collected during investigation by the prosecution do not constitute the offences punishable under Sections 3, 4, and 6 of the TADA Act (2) since the temporary Act, i.e., Act 28 of 1987 has expired on 23.5.1995 even though there is a saving clause in Section 1(4) it does not save as far as procedural aspect is concerned and hence, the detenus are entitled to be released forthwith; (3) As directed by the Supreme Court in Kartar Singh''s case (1994 SCC (Crl.) 899 : 1994 2 L.W. (Crl.) 422) (Supra), the Review by Screening Committee in this case has not considered the case and hence, on this ground the detenus are entitled to be set at liberty and (4) since State has taken the stand in the counter-affidavit that the Habeas Corpus Petition is not maintainable, the learned Senior Counsel submitted that Habeas Corpus Petition is maintainable.

Heard the learned Public Prosecutor on all these points in extenso. Now, we shall deal with all the contentions of the learned Senior Counsel for the Petitioner one by one.

We shall take up the last point first for consideration. The learned Senior Counsel placing reliance on the decision in Kartar Singh v. State of Punjab (1994 SCC (Crl.) 899) invited our attention to paragraph 359 at page 1034 which reads as follows:

Though the High Courts have very wide powers under Article 226, the very vastness of the powers imposes on it the responsibility to use them with circumspection and in accordance with the Judicial consideration and Well established principles. The legislative history and the object of TADA Act indicate that the Special Act has been enacted to meet challenges arising out of terrorism and disruption. Special Provisions are enacted in the Act with regard to the grant of bail and appeals arising from any judgment sentence or order (not being an interlocutory order) of a Designated Court etc. The overriding effect of the provisions of the Act (i.e. Section 25 of TADA Act) and the Rules made thereunder and the non-obstante clause in Section 20(7) reading, "Notwithstanding anything contained in the Code..." Clearly postulate that in bail, the special provisions alone should be made applicable. If any party is aggrieved by the order, the only remedy under the Act is to approach the Supreme Court by way of an appeal. If the High Court entertain bail applications invoking their extra ordinary jurisdiction under Article 226 and pass orders, then the intendment of the Parliament would be completely defeated and frustrated.

But at the same time it cannot be said that the High Courts have no jurisdiction. Therefore we totally agree with the view taken by this Court in State of Maharashtra Vs. Abdul Hamid Haji Mohammed, that if the High Court is inclined to entertain any application under Article 226, that power should be exercised most sparingly and only in rare and appropriate cases in extreme circumstances What those rare cases are and what would be the circumstances that would justify the entertaining of applications under Article 226 cannot be put in straight jacket. However we would like to emphasise and reemphasise that the judicial discipline and committee of Courts require that the High Courts should refrain from exercising their jurisdiction in entertaining bail applications in respect of an accused indicated under the special Act since this Court has jurisdiction to interfere and correct the orders of the High Courts under Article 136 of the Constitution.

In Usmanbhai Dawoodbhai Memon and Others Vs. State of Gujarat, Paragraph 12 at page 928 reads as follows:

At the very outset Shri Potti learned Counsel appearing for the State Government with his usual fairness unequivocally accepted that the provisions of the Act do not take away the constitutional remedies available to a citizen to approach the High Court under Article 226 or Article 227 or move this Court by petition under Article 32 for the grant of an appropriate writ, direction or order. It must necessarily follow that a citizen can always move the High Court under Article 226 or Article 227 or this Court under Article 32 challenging the constitutional validity of the Act or its provisions on the ground that they offend against Articles 14, 21 and 22 or on the ground that a Notification issued by the Central Government or the State Government u/s 9(1) of the Act constituting a Designated Court for any area or areas or for such case or class or group of cases as specified in the notification was a fraud on powers and thus constitutionally invalid.

On the other hand, learned Public Prosecutor argued that the present habeas corpus petition is not maintainable and it cannot be entertained. After hearing learned Counsel on both sides, we are of the opinion that the habeas corpus petition is maintainable since the life and liberty of the persons are involved. We are not prepared to hold that the habeas corpus petition is not maintainable and accordingly we proceed to deal with the other points raised by the learned Senior Counsel on behalf of the Petitioner.

Now, turning to the first point raised by the learned advocate that the allegations do not constitute the offence under the provisions of the TADA Act it will be better to extract Sections 3(1), 4 and 5 of the said Act. Section 3(1) of TADA Act reads as follows:

Punishment for Terrorist Acts: (1) Whoever with intent to overawe the Government as by law established or to strike terror in the people or any section of the people or to alienate any section of the people or to adversely affect the harmony amongst different sections of the people does any act or thing by using bombs, dynamite or "other explosive substances or inflammable substances or fire-arms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise of a hazardous nature in such a manner as too cause, or as is likely to cause, death of, or injuries to, any person or persons or loss of, or damage to our destruction of, property or disruption of any supplies of services essential to the life of the community or detains any person and threatens to kill or injure such person in order to compel the Government or any other person to do or abstain from doing any act, commits a terrorist act.

Other portion of the Section is not material for our purpose.

Section 4(1) of the TADA Act is to the following effect:

Punishable for Disruptive Activities: Whoever commits or conspires or attempts to commit or abets, advocates, advises or knowingly facilitates the commission of, and disruptive activity or any act preparatory to a disruptive activity shall be punishable with imprisonment for a term which shall not be less man five years but which may extend to imprisonment for life and shall also be liable to fine.

Section 6 of the TADA Act is to the following effect:

Enhanced Penalties: (1) If any person with intent to aid any terrorist or disruptionist, contravenes any provisions of or any Rule made under the Arms act, 1959 (54 of 1959) the Explosive Act, 1884 (4 of 1884) the Explosive Substances Act 1908 (6 of 1909) the Inflammable Substances Act, 1952 (20 of 1952) he shall, not withstanding anything contained in any of the aforesaid Act or the Rules made thereunder, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine.

(2) For the purposes of this Section any person who attempts to contravene or abets, or attempts to act, or does any act preparatory to the contravention of any provision of any law, Rule or Order, shall be deemed too have contravened that provision and the provisions of Sub-section (1) shall in relation to such persons have effect subject to the modification that the reference to the "imprisonment for life" shall be construed as a reference to "imprisonment for ten years".

On the basis of the above Sections learned Senior Counsel submitted that the present complaint has been lodged as a counter-blast to the complaint already given by the husband of the Petitioner in respect of an earlier incident which had taken place on 20.11.1991 at 11.20 a.m. in which the rival group members threw bomb on the detenus which has been registered for offences under the provisions of the ordinary penal law. He further submitted that even though the of-fences committed by the members of the rival group are very grave and serious offences whereas the present offences are registered under the provisions of the Act, the said case has been registered against the rival group only under the ordinary penal law. He also pointed out that the act committed by the detenus does not amount to a terrorist act or disruptive activity as defined in Sections 2(h) and (d) of the TADA Act. He also further pointed out that while considering whether it is a terrorist act ad disruptive activity the Court has to consider the intentions of the parties at the time of committing the offence and not the ultimate result after the offence has been committed. Intention should be to overawe the Government as by law established which is absent in the present case. He also further submitted that the result of the offence is immaterial and there should be intention to commit the terrorist act.

Act cannot be judged by the result, result may be hazardous and very grave that is immaterial for the purpose of considering the act as terrorist act. At the most it may amount to an offence concerned with public law and order problem. He has further submitted that u/s 3 of the TADA Act to punish a person for a terrorist act, there should be an intention to overawe the Government by law established or to strike terror in the people or any section of the people or to alienate any section of the people or to adversely affect the harmony amongst different sections of the people and with that intention does any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or fire arms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances of a hazardous nature in such a manner as to cause or as is likely to cause death of or injuries to, any person or persons or loss of or damage to, or destruction of, property or disruption of any supplies of services essential to the life of the community or detains any person and threatens to kill or injure such person in order to compel the government or any other person to do or abstain from doing any act, commits a terrorist act which is absent in the present case.

He further brought to our notice that the TADA Act is an extreme measure to be resorted to when the police cannot tackle the situation under the ordinary penal law. Intendment is to provide special machinery to combat the growing menace of terrorism in different parts of the country Since the act is a drastic measure it should not ordinarily be resorted to unless the Government''s law enforcing machinery fails.

In support of this contention, learned Senior Counsel has placed reliance on the following decisions. (1 Usmanbhai Dawoodbhai Memon and Others Vs. State of Gujarat, and (2) Hitendra Vishnu Thakur v. State of Maharastra (1944 2 L.W. (Crl.) 629) . Usmcmbhai v. State of Gujarat (supra) Paragraph 15 at page 929 reads as follows:

Before dealing with the contention advanced it is well to remember that the legislation is limited in its scope and effect. The Act is an extreme measure to be resorted to when the police cannot tackle the situation under the ordinary law. The intendment is to provide special machinery to combat the growing menace of terrorism in different parts of the country. Since, however, the Act is a drastic measure it should not ordinarily be resorted to unless the Government''s law enforcing machinery fails.

Paragraph 5, 6, 7, 8 and 11 of the decision in Hitendra Vishnu Thakur v. State of Maharastra (1994 2 L.W. (Crl.) 629) (Supra) extracted below:

(5) Section 3 when analyzed would show that whoever with intend (i) to overawe the Government as by law established or ii) to strike terror in the people or any section of the people" or (iii) to alienate any section of the people or (iv) to adversely affect the harmony amongst different sections for the people does any act or things by using a) bombs or dynamite or (b) other explosive substances or (c) inflammable substances or (d) fire arms or (e) other lethal weapons (f) poisons or noxious gases or other chemicals or (g) any other substances (whether biological or otherwise) of a hazardous nature in such a manner as to cause or as is likely to cause (i) death or (ii) injuries to any person or persons (iii) loss of or damage to or destruction of property, or (iv) disruption of any supplies or services essential to the life of the community or (v) detains any person and threatens to kill or injure such person to do or abstain from doing any act commits a terrorist act punishable u/s 3 of TADA.

(6) It is thus seen that most of the criminal activities consisting a terrorist act and offences under penal law, do overlap. However where an act complained of is punishable u/s 3 of TADA it invites more stringent punishment than the punishment prescribed for the offence under the ordinary penal law. Section 6 of TADA even provides for imposition of enhanced penalties for a person who with the intent to aid any terrorist or dis-ruptionist activity contravenes any of the provisions of or any rule made under the Arms Act, 1959 the explosive act, 1884, the Explosive Substance Act 1908 or the Inflammable Substance Act 1952, and renders him liable to punishment for not less than 5 years, The punishment may, in certain cases extend to imprisonment for life with fine, not withstanding anything contained in the provisions of Acts or the rules made under the respective acts.)

(7) Terrorism is one of the main manifestations of increased lawlessness and cult of violence and crime constitute a threat to an established order an are a revolt against a civilized society. Terrorism has not been defined under TADA nor is it possible to give a precise definition of terrorism or lay down what constitutes terrorism. It may be possible to describe it as use of violence when its violence when its most important result is not merely the physical and mental damage of the victim but the prolonged psychological effect it produces or has the potential of producing on the society as a whole. There may be death injury or destruction of property or even deprivation of individual liberty in the process but the extent and reach of the intended terrorist activity travels beyond the effect of an ordinary crime capable of being punished under the ordinary penal law of the land and its main objective is to overawe the Government or disturb harmony of the society or "terrorise" people and the society and not only those directly assaulted with a view to disturb even tempo, peace and tranquility of the society and create a sense of fear and insecurity. A ''terrorist'' activity does not merely arise by causing disturbance of law and order or of public order. The fallout of the intended activities must be such that it travels beyond capacity of the ordinary law enforcement agencies to tackle it under the ordinary penal law. Experience has shown us that ''terrorism'' is generally an attempt to acquire or maintain power or control by intimation and causing fear and helplessness in the minds of the people at large or any section thereof and is a totally abnormal phenomenon. What distinguishes ''terrorism'' from other forms of violence, therefore appears to be the deliberate and systematic use of coercive intimation. More often that not, a hardened criminal today takes advantage of the situation and by wearing the clock of ''terrorism'' aims to achieve for himself acceptability and respectability in the society because unfortunately in the states affected by militancy, a ''terrorist'' is projected as a hero by his ground and often even by the misguided youth. It is therefore essential to treat such a criminal and deal with him differently than an ordinary criminal capable of being tried by the ordinary courts under the penal law of the land. Even though the crime committed by a ''terrorist and an ordinary criminal would be overlapping to an extent but then it is not the intention of the Legislature that every criminal should be tried under TADA where the fall out of his activity does not extend beyond the normal frontiers of the ordinary criminal activity. Every ''terrorist'' may be a criminal should be tried under TADA, where the fall out of his activity does not extend beyond the normal fronteirs of the ordinary criminal cannot be given the label of a ''terrorist'' only to set in motion the more stringent provisions of TADA. The criminal activity in order to invoke TADA must be committed with the requisite intention as contemplated by Section 3(1) of the Act by use of such weapons as have been enumerated in Section 3(1) and which cause or are likely to result in the offences as mentioned in the said section

(8) The Constitution Bench noticed that the offences arising out of a terrorist or disruptive activity may overlap the offences covered by the ordinary penal law and dealing with the situation under which the provisions of TADA would be attracted observed, (1994 3 SCC 653 : 1994 2 L.W. (Crl.) 422 ) As we have indicated above, the Act tends to be very harsh and drastic containing the stringent provisions and provides minimum punishments and to some other offences enhanced penalties also. The provisions prescribing special procedures aiming at speedy disposal of case, departing from the procedures prescribed under the ordinary procedural law are evidently for the reasons that the prevalent ordinary procedural law was found to be inadequate and not sufficiently effective to deal with the offenders indulging in terrorist and disruptive activities, secondly, that the incensed offences are arising out of the activities of the terrorists and disruptionist which disrupt or are intended to disrupt even the sovereignty and territorial integrity of India or which may bring about or support any claim for the cession of any part of India or the secession of any part of Indian from the Union and which create terror and a sense of insecurity in the minds of the propel further the Legislature being aware of the aggravated nature of the offences have brought this drastic change in the procedure under this law so that the object of the legislation may not be defeated and nullified. (Emphasis supplied).

(11) Thus keeping in view the settled position that the provisions of Section 3 of TADA have been held to be constitutionally valid in Kartar Singh case and from the law laid down by this Court in Usmanbhai (1998) SCC 271, 1988 SCC (Crl.318) and Niranjan Singh Karam Singh Punjabi and Others Vs. Jitendra Bhimraj Bijja and others, cases, it follows that an activity which is sought to be punished u/s 3(1) of TADA has to be such which cannot be classified as a mere law and order problem or disturbance of public order or even disturbance of the even tempo of the life of the communist of any specified locality but is of the nature which cannot be tackled as an ordinary criminal activity under the ordinary penal law by the normal law-enforcement agencies because the intended extent and reach of the criminal activity of the ''terrorist'' is such which travels beyond the gravity of the mere disturbance of public order even of the ''Virulent nature'' and may at times transcend the frontiers of the locality and may include such anti national activities which throw a challenge to the very integrity and sovereignty if the country in its democratic policy the Constitution Bench in Kartar Singh Vs. State of Punjab, . repelled the submission of Mr. Jethmalini that the preamble of the act gives a clue that the terrorist and disruptive activities only mean a virulent form of the disruption of public order and found the argument to be inconceivable and unacceptable. Thus unless the act complained of falls strictly within the letter and spirit of Section 3(1) of TADA and is committed with the intention as envisaged by that section by means of the weapon etc as are enumerated therein with the motive as postulated thereby an accused cannot be tried or convicted for an offense u/s 3(1) of TADA When the extent and reach of the crime committed with the intention as envisaged by Section 3(1) transcends the local barriers and the effect of the criminal act can be felt in other states or areas or has the potential of that being felt that the provisions of Section 3(1) would certainly be attracted. Likewise if it is only as a consequence of the criminal act that fear, terror or and panic is caused but the intention of committing the particular crime cannot be said to be the one strictly envisaged by Section 3(1) it would be impermissible to try or convict and punish an accused under TADA. The commission of the crime with the intention to achieve the result as envisaged by the section and not merely where the consequence of the crime committed by the accused create, that result, would attract the provisions of Section 3(1) of TADA Thus if for example a person goes on a shooting spree and kill a number of persons, it is bound to create terror and panic in the locality but if it was not committed with the requisite intention as contemplated by the section, the offence would not attract Section 3(1) of TADA On the other hand if a crime was committed with the intention to cause terror or panic or to alienate a section of the people of or to disturb the harmony etc. it would be punishable under TADA, even if no one is killed and there has been only some person who has been injured or some damage etc. has been caused to the property, the provisions of Section 3( 1) of TADA would be squarely attracted, where the crime is committed with a view to overawe the Government as by law established or is intented to alienate any section of the people or adversely affect the harmony specified in Section 3(1) of TADA no difficulty would arise to hold that such an offence falls within the ambit and scope of the said provision. Some difficulty however, arises where the intended activity of the offender results in striking terror or creating fear and panic amongst the people in general or a section thereof, it is in this situation that the courts have to be cautious to draw a line between the crime punishable under the ordinary criminal law 3(1) of TADA It is of course neither desirable nor possible to catalog the activities which would strictly bring the case of an accused u/s 3(1) of TADA Each case will have to be decided on its own facts and no rule of thumb can be applied.

Placing reliance on the above decisions the learned Senior Counsel submitted that the acts complained against the detenus are not terrorist acts and they should be proceeded only under the ordinary law. He further pointed out that by invoking these provisions under the Act, the detenus are prevented from having the benefit of bail order and they are in custody ever since 1991. The court has to consider the object of the detenus while committing the offense and not its result.

On the other hand, learned Public Prosecutor repelling the said contention has submitted that the acts committed by the detenus are terrorist acts which will fall within the purview of Sections 3, 4 and 6 of the TADA Act. He has highlighted by taking us through the counter affidavit filed by the second Respondent wherein it has been stated that the detenus karate Selvin along with 11 others formed themselves into an unlawful assembly pursuant to which they indulged in terrorist activities in the course of which two persons were indiscriminating butchered and done to death. Both preceding and after this gruesome occurrence which took place near a public market, country made bombs were thrown and as a result of the explosion therefrom one of the victims by name Sowkath Ali who was a member of the general public sustained blast injuries, The public who were surprised at the sudden and ghastly nature of the occurrence, ran helter-skelter being afraid of their lives. The shop owners in and around the area closed down their shutters and the normal life came to a grinding halt. Before and after the occurrence, the public were kept at bay by throwing country made bombs, thereby not only facilitating the perpetration of the crime, but also enabling the accused to flee from the scene of occurrence without being apprehended by any one. The accused caused terror in the minds of the general public in the course of the aforesaid terrorist act using the explosive and country made bombs.

The learned Public Prosecutor also further pointed out that as many as 19 charges for offences punishable under the provisions of the TADA Act under Indian Penal Code and Indian Explosive Substances Act have been framed by the Designated Court after hearing the accused represented by their counsel and the prosecution and now it will be too much to urge in this Habeas Corpus Petition that the acts do not amount to any offence under the provisions of the TADA Act and it will not open to this Court to go into the question whether the acts amounts to terrorist act or not at this stage in this Habeas Corpus Petition. He also further submitted that the trial is fixed and the trial is being prolonged at the instance of the accused by one or other excuses.

Learned Public Prosecutor has invited our attention to the definition of Terrorist Act found in Section 2(h) of the Act. Section 2(h) of the Terrorist Act has the meaning assigned to it in Sub-section (1) of Section 3, and the expression ''terrorist'' shall be construed accordingly. He also pointed out that "Disruptive Activity" has the meaning assigned to it in Section 4 and the expression "disruptionist" shall be construed accordingly. On these basis, he contended that the acts committed by the detenus will clearly fall within the purview of Sections 3, 4, and 6 of the Act. He has placed reliance on the following decision in Kartar Singh v. State of Punjab (supra). The relevant paragraphs 8 and 30 read as follows:

This Act which received the assent of the President on May 23, 1985 and was published in the Gazette of India, Extra Part II Section I, dated May 23, 1985 came into force on May 21, 1985 in whole of India for a period of two years. Though originally the proviso to Sub-section (2) of Section 1, was added reading "Provided so much of this Act as relates to terrorist acts shall not apply to the State of Jammu and Kashmir," this proviso was omitted by Act 46 of 1985. The provisions of this Act were made applicable to the State of Jammur and Kashmir w.e.f. June 5, 1985 The preamble of this Act read that the special provisions of this act were made "for the prevention of, and for coping with, terrorist and disruptive activities and for matters connected therewith or incidental thereto," The statement of Objects and Reasons of this Act read as follows:

Prefatory Note - Statement of Objects and Reasons - Terrorists had been indulging in want of killings, arson, looting of properties and other heinous crimes mostly in Punjab and Chandigargh. Since the 10th May 1985, the terrorists have exparded their activities to other parts of the country, i.e. Delhi, Haryana, Uttar Pradesh and Rajasthan as a result of which several innocent lives have been lost and many suffered serious injuries. In planting of explosive devices in trains, buses and public places, the object to "terrorize" to create fear and panic in the minds of citizens and to disrupt communal peace and harmony is clearly discernible This is a new and overt phase of terrorism which requires to be taken serious note of and dealt with effectively and expeditiously. The alarming increase in disruptive activities is also a matter of serious concern.

It was only in the above prevailing circumstances, the Legislature has been compelled to bring forth these acts (TADA) to prevent and deal with the peril of the erupting terrorism and consequent potential disorder among others disrupting the law and order and to sternly deal with many groups lurking beneath the murky surface, aiding abetting, nourishing and fomenting terrorism besides giving financial support and supplying sophisticated automatic lethal arms and ammunitions bom from inside and outside of India. It may not be cut of place to mention that the facts of the cases appealed against and set out in the writ petitions and SLP if accepted in their entirety reveal the multiple acts of violence let loose and the acts of savage revenge perpetrated against individuals group of persons or any particular community or religious sects show that the violent threat which has manifested itself is not evidently going to vanish with such inexplicable suddenness as would seem to have been visually presumed."

After considering the rival contentions, we are of the opinion that the act committed by the detenus cannot be excluded from the purview of the TADA Act.

We shall now take up the next contention of the learned Senior Counsel that since the temporary act expired on 23.5.1995 even though there is a saving clause in Section 1(4) it does not save the procedural aspect and hence, the detenus should not be kept in detention and should be set at liberty forthwith. In this connection it will be appropriate to extract Section 1(4) of the TADA Act:

1(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 such 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.

The submission of the learned Senior Counsel is that what is saved is any investigation legal proceeding, or remedy in respect of any such right, privilege, obligation, liability penalty, forfeiture or punishment as aforesaid but not the procedural aspect. According to him, the TADA Act is a temporary Act and the provisions of General Clauses Act are not applicable. Since there is no saving of procedure, all the proceedings initiated under the provisions of the Act have to be terminated. What is saved is legal proceedings and not the procedure. According to the learned Senior Counsel, legal proceeding is different from procedure. He also took us to Sections 5 and 484 of the Code of Criminal Procedure, which reads as follows:

Saving: Nothing contained in this Code shall in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed by any other law for the time being in force.

Repeal and savings - (1) The Code of Criminal Procedure, 1898, is hereby repealed.

Notwithstanding such repeal -

a) if, immediately before the date on which this code comes into force, there is any appeal application, trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made as the case may be, in accordance with the provisions of the Code of Criminal Procedure 1898, as in force immediately before such commencement (hereinafter referred to as the old code) as if this code had not come into force:

Provided that every inquiry under chapter XVIII of the old code; which is pending at the commencement of this code, shall be dealt with disposed of in accordance with the provisions of this code;

(b) all notifications published, proclamations issued, powers conferred, forms prescribed local jurisdictions defined sentences passed and orders rules and appointments, not being appointments as special Magistrates made under the Old code and which are in force immediately before the commencement of this code, shall be deemed respectively to have been published, issued, conferred prescribed defined passed or made under the corresponding provisions of this code;

c) any sanction accorded or consent given under the old code in pursuance of which no proceeding was commenced under that code, shall be deemed to have been accorded or given under the corresponding provisions of this code and proceedings may be commenced under this code in pursuance of such sanction or consent;

d) the provisions of the old case shall continue to apply in relation to every prosecution against a ruler within the meaning of Article 363 of the Constitution.

e) Where the period prescribed for an application or other proceeding under the old code had expired on or before the commencement of this code, nothing in this code shall be construed as enabling any such application to be made or proceeding to be commenced under this code by reason only of the fact that a longer period therefore is prescribed by this code or provisions are made in this code for the extension of time.

The contention is since the TADA Act is self contained Special Act, the provisions of Code of Criminal Procedure are not applicable and the prosecution cannot take advantage of these provisions. For this proposition of law, the learned Counsel has placed reliance on the following decisions ; (1) S. Krishnan and Others Vs. The State of Madras, ; (2) Gopichand v. Delhi Administration ( 1959 SCJ 831) ; (3) Anant Gopal Sheorey v. State of Bombay (1958 SCJ 1231); (4 Gurbachan Singh Vs. Satpal Singh and others, ) and (5) M.J. Delaflore and Another Vs. Amir Mohammad and Others,

In S. Krishnan v. State of Madras (supra) the Supreme Court in paragraph 10 observed as follows:

(10) The Attorney General, however, contended in the alternative that the constitutional validity of Section 9(2)(a) and Section 12(1) of the new Act could be sustained under Article 22(4)(b) which has been held by a majority of the Judges in A.K. Gopalan Vs. The State of Madras, to be a distinct independent provision authorizing preventive detention for a period longer than three months in accordance with a law made by Parliament under Sub-clauses (a) and (b) of Clause (7) of Article 22. The Attorney General claimed that the aforesaid provisions were such a law, nonetheless because Parliament may have intended to make a law within Article 22(4) (a) by providing for a review by an Advisory Board in all cases of preventive detention. On a question of vires, the intention of the Legislature is immaterial and I agree that a provision for an Advisory Board is not a hallmark which stamps a Preventive Detention Law as one necessarily falling within sub Clause (a) of Clause (4) so as to make its constitutional validity determinable exclusively with reference to the requirements of that sub-clause. The law could still be upheld if it fulfilled the conditions laid down in Sub-clause (b) of Clause (4) Mr. Nambiyar, however submitted that the new Act did not fulfil those conditions, for it is not a law made under Sub-clauses (a) and (b) of Clause (7). The word "and" should be understood in its ordinary conjunctive sense and the new Act neither prescribes the circumstances and classes referred to in sub Clause (a) nor the maximum period of detention required to be prescribed under Sub-clause (b) of Clause (7). The contentions is devoid of substance. The new Act can in my opinion, be regarded as a law made substantially in accordance with Sub-clauses (a) and (b) of Clause (7). According to the majority view in Gopalan''s case, Sub-clause (a) of Clause (7) being an enabling provision the word "and" should be under stood in a disjunctive sense. The combined effect of Sections 9(2)(a) and 12(1) is to provide in a certain class of cases namely where detention orders were in force at the commencement of the new Act, that the persons concerned could be detained for a period longer than three months if an Advisory Board reports that there are sufficient grounds for detention within ten weeks from the commencement of the new Act that is to say, without obtaining the opinion of an Advisory board before the extraction of the three months from the commencement of the detention as provided in Sub-clause (a) of Clause (4) and although the new Act does not in express terms prescribe in a separate provision any maximum period as such for which any person may in any class or classes of cases be detained if fixed by extending the duration of the old Act till 1.4.1952 an over all time limit beyond which preventive detention under the Act cannot be continued. The general rule in regard to a temporary statute is that in the absence of special provision to the contrary proceedings which are being taken against a person under it will ipso facto terminate as soon as the statute expires (caries on statutes Edn. 4, P. 347). Preventive detention which would but for the Act authorizing it be a continuing wrong, cannot therefore be continued beyond the expiry of the act itself. the new Act thus is substance prescribes a maximum period of detention under it by providing that it shall cease to have effect on a specified date. It seems to me, therefore, that Section 9(2)(A) and Section 12(1) of the new Act substantially satisfy the requirement of Sub-clause (b) of Clause (4) of Article 22 and cannot be declared unconstitutional and void.

In Gopichand v. Delhi Administration (supra) the Supreme Court held thus:

Then it is urged that the act which came into force on March 29, 1949 was due to expire and did expire on August 14,1951 and so the proceedings taken against the Appellant under the summons procedure after the expiration of the temporary Act were invalid. It is argued that in dealing with this point it would not be permissible to invoke the provisions of Section 6 of the General Clauses Act because the said section deals with the effect of repeal of permanent statutes. This argument no doubt is well-founded. As Craises has observed,

"as a general rule, unless it contains some special provisions to the contrary after a temporary Act has expired no proceedings can be take upon it and it ceases to have any further effect" This principle has been accepted by this Court in Krishnan v. The State of Madras (1951) (S.C. 453) the general rule in regard to a temporary statue is" observed Partanjalali Sastri, J. "that in the absence of special provision to the contrary proceedings which are being taken against a person under it will ipso facto terminate as soon as the statute expires."

It is true that the Legislature can and often enough does avoid such an anomalous consequence by enacting in the temporary statute a saving provision and the effect of such a saving provision is in some respects similar to the effect of the provisions of the Section 6 of the General Clauses Act. As an illustration we may refer to the decision in Wicks v. Director of Public Prosecutions ( LR (1947) AC 362) In that case an offence against defence (Geheral) regulations made under Emergency Powers (Defence) Act, 1938 was committed during the currency of the Act, and the offender was prosecuted and convicted after the expiry of the Act. The contention raised by the offender that his prosecution and conviction were invalid because, at the relevant time, the temporary Act had expired was rejected in view of the provisions of the Act shall not affect the operation thereof as respects things previously done or omitted to be done. The House of Lords agreed with the view expressed by the court of Criminal Appeal and held that it was clear that Parliament did not intend Sub-section (3) to expire with the rest of the Act and that its presence in the statute is a provision which preserved the right to prosecute after the date of its expiry. Since the impugned Act does not contain an appropriate saving section the Appellant would be entitled to contend that after the expiration of the Act, the procedure laid down in it could no longer be invoked in the cases then pending against the appellant. We would like to add that, in the present case, we are not called upon to consider whether offences created by a temporary statute cease to be punishable on its expiration.

In Anant Gopal Sheorey v. State of Bombay (Supra) the supreme court held as follows:

the question that arises for decision is whether to a pending prosecution the provisions of the amended code have become applicable. There is no controversy on the general principles applicable to the case. No person has a vested right in any course of procedure. He has only the right of prosecution or defends in the manner prescribed for a time being by or for the court in which the case is pending and if by an act of Parliament the mode of procedure is altered he has no other right than to proceed according to the altered mode. ''See Mcdowell on Interpretation of Statues on page 225; The Colonial Sugar Refining Co. Ltd v. Irving (L.R. ( 1905) A.C. 369, 372) In other words a change in the law of procedure operates retrospectively and unlike the law relating to vested right is not only prospective.

In Gurbachan Singh v. Satpal Singh (supra) Paragraph 36 at page 219 read as follows:

The provisions of the said section do not create any new offence and as such it does not create any substantial right but it is merely a matter of procedure of evidence and as such it is retrospective and will be applicable to this case. It is profitable to refer in this connection to Halsbury''s Laws of England, (Fourth Edition) Volume 44 page 570 wherein it has been stated that the general rule is that all statutes other than those which are merely declaratory or which relate only to matters of procedure or of evidence, are prima facie prospective and retrospective effect is not to be given to them unless, by express words or necessary implication, it appears that this was the intention of the legislature....

In M.J. Delaflore and Another Vs. Amir Mohammad and Others, this Court held as follows:

4(1). Any law in force in Pondicherry or any area thereof corresponding to any Act referred in Sub-section (I) of Section 3 or any part thereof (except in so far as such law continues to be applicable to renon-cants) shall stand repealed as from the coming into force of such act in Pondicherry.

(2) Nothing in Sub-section (1) shall affect-

(a) the previous operation of any law so repealed or anything duly done or suffered thereunder or

(b) any right privilege, obligation of liability acquired, accrued or incurred under any law so repealed; or

c) any penalty forfeiture or punishment in respect of any offence committed against any law so repealed; 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 such 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 been passed. Provided that anything done or any action taken (including any appointment on delegation made notification, instruction or direction issued, form bye-law or scheme framed certificate obtained permit or license granted or registration effected) under any such law, shall be deemed to have been done or taken under the corresponding provision of the Act extended to Pondicherry by this act and shall continue to be in force accordingly unless and until superseded by anything done or any action taken under the said Act.

The reason for this can be gathered from the general principles for the interpretation of statues. For this purpose one can usefully refer to the observations contained in "The Interpretation of Statues" by Maxwell, 1962 Edition.

No person has a vested right in any course of procedure, he has only the right of prosecution or defence in the manner prescribed for the time being by or for the court in which he sues, and if an act of Parliament alters that mode of procedure, he has no other fight than to proceed according to the altered mode. The remedy does not alter the contract or the tort; it takes away no vested right for the defaulter can have no vested right in a state of the law which left the injured party without or with only a defective remedy...page 216

the general principle, however seems to be that alterations in procedure are retrospective, unless thereby some good reason against it" (page 217)

At the sam time Maxwell has also laid down certain limitations to this rule, these are stated at page 219

thus; "But a hew procedure would be presumably inapplicable. Where its application would prejudice rights established under the old or would involve a breach of faith between the parties where rights and procedure are dealt with together the intention of the legislature may well be that the old rights are to be determined by the old procedure and that only the new rights under the substituted section are to be dealt with by the new procedure.

Learned Senior Counsel also submitted that judicial proceeding is different from procedure He took us through the definition of judicial proceeding found in Section 2(i) of the Code of Criminal Procedure which reads as follows:

Judicial proceeding includes any proceeding in the course of which evidence is or may be legally taken on oath.

The further submission of the learned Senior Counsel is that the provisions of TADA Act runs parallel to the provisions of the Code of Criminal Procedure and he has invited our attention to Sections 9, 11, 12, 14, 18 and 20 of the TADA Act and submitted that unless these provisions are saved by the saving clause section (4) after the repeal of the said act from 23.5.1995, there is no procedure left by the Act and hence the proceedings for TADA offences should be dropped and the detenus should be proceeded only under the provisions of the ordinary penal law. He also placed reliance on a decision in Municipal Board, Kanpur Vs. Behari Lal, in which, paragraphs 7 and 8 read as follows:

7, Dr, Chatterji had been appointed a public analyst under the U.P. Pure Food Act, 1950 in September, 1953. It is not in dispute that Act was repealed by Section 25 of the Prevention of Food Adulteration Act, 1954 but it is contended by the prosecution that notwithstanding the repeal of the Pure Food Act the appointment of Dr. Chatterji as a public analyst remained effective by virtue of the provisions of Section 6 of the General Clauses Act and that he must be deemed to be a public analyst within the meaning of Section 13 of the Prevention of Food Adulteration Act. This was the view which found favor in Municipal Board, Lucknow Vs. Shyam Behari, but with great respect we do not think it to be well founded.

The Prevention of Food Adulteration Act must be read as a whole and when so read, we have no doubt that the public analyst whose report is admissible in evidence u/s 13 of the Act is a public analyst for whose appointment provision is made in Section 8 The repeal of the U.P. Pure Food Act had the necessary consequence of terminating the appointments of Public Analyst appointed under that Act unless their appointment are specifically saved and our attention has not been invited to any provision of the new Act which would have that effect. A public analyst is defined in the Pure Food Act as any person appointed by the State Government to perform the duties of a public analyst under this Act": and even if it be the case that the appointment is saved by virtue of the provisions of Section 6 of the General Clauses Act, the only result in our opinion, will be that Dr. A.C. Chatterji will continue to be a pub-he analyst under the Pure Food Act. It could not make him public analyst within the meaning of the Prevention of Food Adulteration Act. With great respect, we are of opinion that the decision in Municipal Board, Lucknow Vs. Shyam Behari, that under a person who has been appointed a public analyst for the purpose of the Prevention of Food Adulteration Act is erroneous.

On the basis of the said decision he submitted that the Designated Courts were constituted under the Act and now by virtue of the TADA Act being repealed by efflux of time, the Designated Courts will go with the repealed Act and hence, there are no courts to try the TADA offences and, therefore, the detenus should be proceeded for the offence only by ordinary court under ordinary penal law. Learned Senior Counsel placing a reliance on the decision in Hitendra Vishnu Thakur v. State of Maharastra (supra) in which paragraph 26 at page 648 reads as follows:

The Designated court has held that the amendment would operate retrospectively and would apply to the pending cases in which investigation was not complete in the date on which the amendment Act came into force and the challan had not till then been filed in the court. From the law settled by this Court in various cases the illustrative though not exhaustive principles which emerge with regard to the ambit and scope of an Amending Act and its retrospective operation my be culled out as follows:

(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 new rights and liabilities shall be construed to be "prospective in operation unless otherwise provided, either expressly or by necessary implication.

Learned Senior Counsel submitted that the detenus should not be proceeded under the provisions of the TADA Act.

We may here itself pointed out from this decision at paragraph 27 which reads as follows:

In fairness to the learned Additional Solicitor General Mr. Tulai it may be stated that he did not controvert the legal position (both in his oral submissions and written arguments) that Amendment Act 43 of 1993 regulating the period of compulsory detention and the procedure for grant of bail, being procedural in nature, would operate retrospectively we need not, therefore, detain ourselves to further examine the question of retrospective operation of the amendment Act. On the basis of the submissions made by learned Counsel for the parties, we uphold the finding of the Designated Court, for the reasons recorded by it and those noticed by us above that amendment of 1993 would apply to the cases which were pending investingacation on 22-5-93 and in which the challan had not till then been filed in court.

When the court has specifically mentioned that the amendment of 1993 would apply to the cases which were pending investigation on 22.5.93 in which the challan had not till then been filed in Court, we fail to understand that by virtue of repeal of the TADA Act, the detenus should not be proceeded with a Section 1(4) of the TADA Act does not save procedure.

On the other hand, learned Public Prosecutor counter acting the above submissions has pointed out that by virtue of Section 1(4) of the TADA Act all the proceedings are saved. He pointed out that when the section clearly says that investigation legal proceeding or remedy be instituted continued or enforced and any such penalty, forfeiture or punishment may be imposed as if this act had not expired, there is no meaning in saying that the procedure is not saved. He placed emphasis on the words as if this Act had not expired. He drew a distinction between Section 6 of the General Clauses Act and Section 1(4) of the TADA Act and submitted that Section 1(4) of the TADA Act is more wide and comprehensive than Section 6 of the General clauses act. Section 6 of the General Clauses Act reads as follows:

Repeal followed byfresh legislation: Section 6 is not confined in its application only to repeal but applies also to repeals followed by fresh enactments. Unless the new legislation has manifested an incompatible intention. When the repeal is followed by fresh legislation on the same subject, we would undoubtedly have to look to the provisions of the new Act but only for the purpose of determining whether they indicate a different intention. Although it was held in a case from Vind-hya Pradesh, that where an enactment is not merely repealed but replaced by a fresh legislation then the provisions of Section 6(e) would not apply, yet in view of the Judicial opinion in other cases, it cannot be said as a broad proposition that Section 6 of the General Clauses Act is not applicable whenever there is a repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with a contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law and the mere absence of a saving clause is not by itself material.

He pointed out since TADA Act was temporary Act, it necessitated the Legislature to introduce Section 1(4) in the said Act His further submission was that the legislature wisely introduced the said Section 1(4) to the Act and it will be futile to contend that because it has not specifically mentioned that procedure is saved the court cannot try offences under the said Act. When the sections saved investigation legal proceeding he paused question why these are saved if they are not to be proceeded further? He countered the argument of the learned Senior Counsel that the court can proceed with the offences under the Indian Penal Code dropping the proceeding under the TADA Act by saying that the Designated Court cannot proceed even with offences under the provisions of the Penal Code since those offences have not been committed by the competent committal Magistrate and the Designated Court itself has taken cognizance by virtue of the special provision given by the Act and for ordinary law and the Sessions Court cannot take cognizance without there being a committal. If the argument of the learned Senior Counsel has to be accepted, it will lead to catastropy. On one side, TADA offences cannot go on the other side, the offences under the ordinary law cannot be proceeded with and the net result would be all such cases have to be closed. That may not be the intention of the legislature while introducing Section 1(4) of the TADA Act.

He also submitted mat the entire Act has been challenged as unconstitutional before the Supreme Court and the court has upheld the validity of the Act except holding Section 22 as unconstitutional in Kartar Singh''s case. He took us through the said decision and also placed reliance on a recent decision of the Supreme Court in W.P. (Crl.) No. 413/95 Abdul Aziz v. State of W.B. and another, wherein the Supreme Court had upheld the constitutional validity of Section 1(4) of the TADA Act. there also, the contentions of the learned Senior Counsel was that the constitutional validity of Section 1(4) of the TADA Act has not been specifically gone into in Kartar Singh''s case (supra) but consideration of the such question has become important because the trial has been allowed to continue even after the lapse of the said Act. Negativing the said contention the Supreme Court dismissed the said writ petition The Supreme Court has observed that it has indicated in Gop Chand''s case that in the absence of the saving clause in the Act the trial which be may commenced for the offences under the said Act would not be held valid thereafter. But, in the instant case specific saving clause has been provided in the Act itself i.e. TADA Act Further the Supreme Court has observed in the instant case the Parliament has prescribed the procedure for deciding the case under TADA Act. hence, no discretionary option is left to the State Government to choose the procedure for trial.

Learned Public Prosecutor has also invited out attention to Sections 11(3)(d) 12, 14, 18, 19, 25 of the TADA Act and submitted that in case of conflict by virtue of non-obstante clause, TADA Act being as special Act it has got overriding effect over the provisions in any enactment and hence, new class of offences called "Terrorist Act", and "Disruptive Activity" are to be tried exclusively by the special court called Designated Court by adopting, special procedure for trial of such offences.

He has cited the following decisions appeared u/s 6 of the General Clauses Act to show that even though temporary statute expired by efflux of time, the proceedings subsequently commenced will be saved by virtue of the provisions of Section 6 of the General Clauses Act and pointed out similarly by virtue of Section 1(4) of the TADA Act all the subsequent proceedings are saved. (1) Andhra Pradesh State Electricity Board Vs. Union of India (UOI) and Another, 2) P.V. Mohammed Barmay Sons v. Director of Enforcement ( 1993 S.C.C. (Crl) 777); 3) The State of Uttar Pradesh Vs. Seth Jagamander Das and Others, ; 4) Isher Dass v. State of Haryana ( 1922 Cri. L.J. 2327); 5) Babu Lal Vs. Hazari Lal Kishori Lal and Others, and 6) Wicks v. Director of Public Prosecutions ( 1947 (1) All ER 205).

In A.P.S.E Board v. Union of India (supra) the Supreme Court in paragraph 8 at page 1023 observed as follows:

Re: Contention (c) The assumption basis to the argument is that the act is temporary statute which expired by efflux of time on 10-1-1968 and that the proceedings subsequently commenced on 29-11-1968 were without jurisdiction. Section 6 of the General Clauses Act is held inapplicable to a case of expiry of a temporary statute on the view that Section 6 is attracted wherever there is a repeal and that the case of expiry of the statute by efflux of time is not a case of repeal. Whatever be the principles of construction of temporary statutes and the effect on the rights and obligations under mem of the expiry of the statute itself the Act in the present case contains specific provisions preserving rights and obligation. The Act invokes the provisions of Section 6 of the General Clauses Act. The matter is placed beyond controversy by the pronouncement of this Court in Amadalavalasa Cooperative Agricultural and Industrial Society Ltd. and Another Vs. Union of India (UOI) and Another,

... Therefore if u/s 5 of the Factories Act or u/s 7 of the Goods Act the liability to pay the premia on full insurable value was incurred before the expiry of the Act, Section 6 of the General Clauses Act would enable the ascertainment of the extent of liability for the evaded premia by an officer who was authorized when the Act was in force or by an officer authorized after the expiry of the Act. The principle behind Section 6 of the General Clauses Act is that all the provisions of the Acts would continue in force for purposes of enforcing the liability incurred when the Acts were in force and any investigation legal proceedings, remedy may be instituted, continued or enforced as if the Acts had not expired....

Contention (c) is accordingly also held and answered against the Appellant

In P.V. Mohammed Barmty Sons v. Director of Enforcement (supra the Supreme Court held thus:

We have already seen that Act did not evince any contrary intention It merely reiterated the earlier law operating in the field. Therefore Clause (d) of Section 6 of the General Clauses Act gets attracted to the acts done or the penalties of forfeiture or punishment for any offence which had already been committed before the repeal of the enactment, though no criminal proceedings have been actually initiated under repealed enactment before its repeal.

In State v. Jagmander Das (supra), the Supreme Court has held as follows:

On the 30th March 1946 before the expiry of the Defence of India Act the Governor General Promulgated an ordinance "The Defence of India Second Amendment) Ordinance" XII of 1946 This ordinance amended Section 1(4) of the Defence of India Act by adding a saving clause in the following terms:

but its expiry under the operation this Sub-section shall not affect (a) the previous operation of or anything duly done or suffered under the Act or any rule made thereunder or any order made under any such rule...." This saving clause is almost in the same terms as Section 6(a) (b) (c) (d) and (e) of the General Clauses Act. Thus the saving clause achieved the purpose which otherwise would have been achieved if it was a case of a repeal, by Section 6 of the General Clauses Act.

By virtue of the provisions of the saving clause'' for things done or omitted to be done under the Defence of India the prosecution could be commenced even after the expiry of the Act. the saving clause added in the Act by the ordinance clearly permitted a prosecution for offences committed before the expiration of Defence of India Act even after its expiry.

In Isher Dass v. State of Haryana (supra) the Supreme court in Paragraph 3 held as follows:

It is submitted that the control order itself was for a shirt period and the prosecution could not be continued after the expiry of the period. This aspect has been dealt with by all the three courts below. It is needless to say that the trial in respect of an offence committed when the control order was in force cannot be expected to be completed within mat short period The offence committed has to be tried inspite of the expiry of the period. Mere expiry of the period does not make any difference. As Section 7 of the Essential Commodities Act stood on the date of offence the minimum sentence of 3 months was, no doubt there but there was a provision under which the court may for any adequate and special reasons to be mentioned in the judgment, impose a sentence for a terms less than 3 months. This provision was omitted in the year 1981 for a period of 5 years. Therefore the position is that in a given case before 1981 the court for adequate reasons could award a sentence less than 3 months.

In Babu Lal v. M/s Hazarilal Kishori Lal (supra) the Supreme Court observed as follows:

The word "proceeding" has not been defined in the Act That terms is a very comprehensive term and generally speaking means a prescribed course of action for enforcing a legal right. It is not a technical expression with a definite meaning attached to it but one the ambit of whose meaning will be governed by the statute. It indicates a prescribed mode in which judicial business is conducted. The word "proceeding" in Section 22 included execution proceedings also.

In Wicks v. Director Public Prosecutions (supra) it is held as follows:

The Appellant was convicted on an indictment which charged him with doing acts like to assist the enemy with intent to assist the enemy, contrary to the Defence (General) Regulations 1939 reg. 2A, made under the Emergency Powers (Defence) Act, 1939 Section 1(1) The acts with which the indictment charged the Appellant were all committed between April 1943 and January 1944 and the trial took place on May, 27 and 28 1946. The Emergency Powers (Defence) Act 1939 after numerous extensions, expired on Feb. 24 1946. Section 11(3) of the Act provided "The expiry of this Act shall not affect the operation thereof as respects things previously done or omitted to be done", the question for decision which turned entirely on the construction which ought to be placed on that Sub-section was whether the Sub-section authorized the conviction of the Appellant notwithstanding the previous expiry of the Act: Held: giving the words of Section 11(3) their natural meaning, it was clear that Parliament did not intend the submission to expire with the rest of the Act and that its presence in the Act preserved the right to prosecute after the date of expiry.

Learned Public Prosecutor placed reliance on Section 38 of the Interpretation Act, 1889 appearing in Maxwell in the Interpretation of Statutes 12th edition by P.St.J. Langan. Section 38 deals with effect of repeal in further acts which reads thus:

38-(1) where this Act or any Act passed after the commencement of this Act repeals and reenacts with or without modification any provisions of a former Act references in any other Act to the provisions so repealed shall unless the contrary intention appears be construed as references to the provisions so reenacted.

(2) Where this Act or any Act passed after the commencement of this Act repeals any other enactment then unless the contrary intention appears, the repeal shall not-

(a) revive anything not in force or existing at the time at which the repeal takes effect or

b) affect the previous operation of any enactment so repealed or anything duly done or suffered under any enactment so repealed or

c) affect any right privilege obligation, or liability acquired accrued or incurred under any enactment so repealed or

d) affect any penalty forfeiture or punishment incorrect in respect of any offence committed against any enactment so repealed or

e) affect any investigation legal proceeding or remedy in respect of any such right, privilege obligation liability penalty forfeiture or punishment as aforesaid: and any such investigation legal proceeding or remedy may be instituted continued or enforced and any such penalty forfeiture or punishment may be imposed as if the repealing Act had not been based.

After carefully considering the rival submissions in the light of the decisions referred to above we are of the opinion that by virtue of Section 1(4) of the Act, all the proceedings including the procedural aspect are saved. The decisions cited by the learned Senior Counsel for the Petitioner referred supra were not dealing with the saving clause like Section 1(4) except in one decision of a single judge of this Court. It will be too much to hold that the legislature while introducing Section 1(4) of the TADA Act has not intended to include the procedural aspect at all or else the very purpose of introducing Section 1(4) of the TADA Act becomes redundant Further we have to give much importance to the words "may be imposed as if this Act had not expired." The "provision found in Section 1(4) of the TADA Act is much wider than Section 6 of the General Clauses Act to include even procedural aspect.

The last submission of the learned Senior Counsel is that as directed by the Supreme Court in Kartar singh''s case neither the Review

After carefully considering the rival contentions on this point, we are of the opinion that there is no substance in the submission of the learned Senior Counsel that the Review Committee has not considered the case of the detenus.

After going through the rival contentions raised by the learned Senior Counsel for the Petitioner and the learned Public Prosecutor we see no merits in this Habeas Corpus Petition. No other contention has been raised before us. Accordingly the Habeas Corpus Petition is dismissed.