Thangamani vs Inspector of Police, 'Q' Branch Police, Tricky

T. Jayarama Chouta, J.—This is the second round of habeas corpus filed by one Thangamani directing the Respondent to produce the

detenus Periyasami and Senthilkumar before the Court and to set them at liberty. Periyasami is the brother in law of the Petitioner, whereas

Senthilkumar is his friend, Earlier, H.C.P. No, 1073 of 1994 filed by the same Petitioner for the release of those two detenus mainly on the ground

that they are in custody of 100 days of their arrest, by the police is illegal as the final report was not laid within the said period by the prosecution,

was dismissed on 10.8.94.

The averments in the affidavit sworn to in support of the prayer in the habeas corpus petition are that the Petitioner is the organiser of the Thit-

takudi Taluk Dalit Panther of India, an organisation fighting for the cause of dalit upliftment and the said organisation is wedded to the ideals of Dr.

Baba Sahib Ambedkar. The Petitioner stated that the political wing secretary Periyasamy was arrested on 6.1.1994 and his friend Senthil Kumar

was also arrested on 17.12.1993 and both were detained u/s 3(3) and 6 of the Terrorists and Disruptive Activities (Prevention) Act, 1987.

(hereinafter referred to as TADA Act, for short) and charge sheet was laid beyond 180 days in C.C. No. 18 of 1994 on the file of the Designated

Court, Coimbatore and hence, the detention of the detenus is illegal and violative of Article 21 of the Constitution of India.

The affidavit further reads that there was no material against the detenue Periyasami except that one Se. Ve. Periyasami alleged to have stated

that the detenu Periyasamy requested him to provide food to one Lenin who came for some incident and he accordingly provided food and shelter

to Lenin and his comrades and the said Lenin was done to death on an encounter and yet another comrade Nagarajan, was also done to death on

an encounter. In the affidavit it is further mentioned that it is highly imaginary that the said incident should never be construed as bomb of a railway

track, and, there was no material to connect the said detenu with the offence.

The deponent has further stated that there was no material except the alleged confession statement of Senthilkumar said to have been given to

one Ramanujam, Superintendent of Police, ''Q'' Branch and the said confession is inadmissible in evidence as the same was not produced before

the Chief Judicial Magistrate, Coimbatore along with the said detenu Senthilkumar and the Chief Judicial Magistrate has not ascertained the truth

and voluntariness of the said confession.

It is the further case of the deponent that as required u/s 20A of the TADA Act, the investigating agency has to obtain written permission to deal

with the detenus u/s 3(3), 4 and 6 of the TADA Act and hence, the entire arrest, detention and further prosecution is violative of Section 20A of

the TADA Act. Further, the case under TADA Act has to be investigated by a Police Officer above the rank of D.S.P. and the investigation done

by the Respondent is nullity in law and under the circumstances, the Petitioner has sought for issue of writ of habeas corpus directing the

Respondent to produce the detenus Periyasamy and Senthilkumar before this Court and set them at liberty.

After notice by this Court, the Inspector of Police, ''Q'' Branch, Trichy, the Respondent herein, has sworn to a counter - affidavit wherein he has

stated that the above habeas corpus petition is not maintainable either on the basis of the averments made in the affidavit or for that matter, the

contention raised therein. As far as paragraph 4 of the affidavit is concerned, the counter-affidavit says that Periyasamy was arrested on 9.1.1994

and not on 6.1.1994 and Senthilkumar was arrested on 17.12.1993 for offences punishable under Sections 3(3), 4(1) and 5 of the TADA Act,

1987, Sections 3 and 5 of the Explosives Substances Act, Section 150 of Indian Railways Act, 4(1) of the Prevention of Public Properties

Damages Act read with Section 120(B) of the Indian Penal Code. The incident in which these two individuals were concerned took place on

24.10.1992 when the railway bridge near Kallagam was blasted by the explosive substances in which a number of rail sleepers, signalling systems

and certain other properties belonging to the railways were damaged considerably. One of the accused by name Lenin died as a result of bomb

blast when he went away from the scene of occurrence in a bicycle.

The Respondent has denied the allegations containing in paragraph 3 of the affidavit and has stated that there are no materials connecting the

above two persons with the offences for which they are sought to be prosecuted. It is further submitted that before the Designated Judge at

Coimbatore., the petition for discharge of these two accused were filed and after elaborate arguments, the Court found that prima facie case has

been made out against these two accused and on 13.1.1995 charges have been framed. The deponent has also mentioned in the counter-affidavit

that earlier H.C.P. No. 1073 of 1994 which was filed on behalf of these two accused was dismissed by this Court in which specific plea of filing

the charge sheet beyond 180 days was raised.

The Respondent has further deposed that the confession of the accused recorded u/s 15 of the TADA Act is admissible against the maker

thereof. Besides, u/s 30 of the evidence Act, such a confession can be taken into consideration against co-accused as well. He has also brought to

the notice of this Court that before filing the charge sheet in the case, sanction was obtained from the Inspector General of Police, Crimes who is

the authority competent to accord such sanction u/s 20(A) of the Act and the investigation in this case has been done in accordance with law and

the contentions to the contrary is not sustainable. In view of the above circumstances, the Respondent prayed this Court to dismiss the petition as

devoid of merits.

Mr. Sankarasubbu, learned advocate appearing on behalf of the Petitioner submitted the following contentions and asked this Court to release

the detenus:

(i) The acts committed by the detenus are not the acts as found in Sections 4, 5 and 6 of the TADA Act, and since the acts were not terrorists act,

the detenus are entitled to be released. At the most, the said Act may be an Act concerning the law and order problem which will not be terrorists

Act so as to detain them under the provisions of the TADA Act.

(ii) There are no materials to frame charge under the provisions of the TADA Act especially against the detenu Periyasamy and hence, he is entitled

to be released.

(iii) since the prosecution has not complied with the provisions of Section 20A of the TADA Act, the entire procedure followed by the Designated

Court is vitiated and hence, the detenus are entitled to be released forthwith.

On these points, we have heard the learned additional Public Prosecutor Mr. I. Subramaniam, on behalf of the Respondent. After referring to

the averments made in the counter-affidavit and meeting all the points raised by the learned Counsel for the Petitioner, he submitted that since the

crimes are registered prior to the introduction of amendments, the law that would be applicable will be the law as it stood before the amendment

and not the amended law.

We have carefully considered the rival contentions of the learned Counsel on both sides and perused the papers produced before us. Taking

up the first contention of Sri Sankara Subbu, learned Counsel for the Petitioner, it should be borne in mind that it is a case where the accused

(detenus along with others) had used the explosive substances, bombs and other inflammable substances to blast the railway bridge near Kalla-

gam in which number of rail sleepers, signalling system and certain other properties belonging to the railways were damaged considerably. Some of

the persons lost their lives. One of the accused by name Lenin died as a result of bomb blast. In mis. connection, it will be appropriate to extract

Sections 3 and 6 of the above Act, Section 3 of the TADA Act reads as follows:

Punishment for terrorists acts: (1) Whoever, with intent 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, does any

Act or thing by using bombs, dynamite or other explosive substances or inflammable substances or fire-arms or other lethal weapons or poisonous

or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature, in such a manner as to

cause, or as is likely to cause, death of, or injuries to, any persons of 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.

(2) Whoever commits a terrorist act, shall;

(i) if such Act has resulted in the death of any person, be punishable with death or imprisonment for life and shall also be liable to fine;

(ii) in any other case be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for

the life and shall also be liable to fine.

(3) Whoever conspires or attempts to commit, or advocates, abets, advises or incites or knowingly facilitates the commission of, a terrorist Act or

any Act preparatory to a terrorist act, shall 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.

(4) Whoever harbours or conceals, or attempts to harbour or conceal, any terrorist shall 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.

Section 6 of the Act is extracted below:

Enhanced penalties.-

(1) If any person with intent to aid any terrorist or disruptionist, contravenes any provision 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, notwithstanding anything contained in any of the aforesaid Act or the Rules made thereunder, 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 to have contravened that provision, and the provisions of Sub-section (1)

shall, in relation to such person, have effect subject to the modification that the reference to ''imprisonment for life"" shall be construed as a reference

to ''imprisonment for ten years.

From the above sections, it is made clear that the Act committed by the detenues clearly fall within the purview of those sections and the acts

are terrorists acts. Further, the police after thorough investigation have filed a charge sheet for offences punishable under the provisions of the

TADA Act as well as Explosive Substances Act, Indian Railways Act, Prevention of Public Properties Act and also under the provisions of the

Indian Penal Code. Learned Designated Judge, after going through the entire records produced by the prosecution has framed charges under

Sections 3, 4, 5 and 6 of the TADA Act in addition to the offences under the different Acts, On 30.1.1995. While framing the charge, the accused

had been given an opportunity to argue for discharge and an elaborate argument was addressed before the Designated Court and the learned

Judge, after considering the arguments on both sides was of the opinion that a prima facie case to frame charges under the above Sections has

been made out and hence, the charges have been framed. It is too much to say at this stage that the acts committed by the detenus are not the Act

which will be within the purview of Sections 3, 4, 5 and 6 of the TADA Act.

In this connection, learned Counsel for the Petitioner has placed reliance on a decision of the Supreme Court in Hitendra Vishnu Thakur v.

State of Maharashtra (1994 LW (Cri) 629). He invited our attention to paragraphs 11 and 12 of the said decision at page 640 which read as

follows:

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 Dawoodbhai Memon and Others Vs. State of Gujarat, 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 Act

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 community 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 event of a ''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 of the country in its democratic

polity. The Constitution Bench in Kartar Singh Vs. State of Punjab, repelled the submission of Mr. Jethmalani 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 Act and is

committed with the intention as envisaged by that section by means of the weapons etc. as are enumerated therein with the motive as postulated

thereby, an accused cannot be tried or convicted for an offence 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 as can be felt in other States or areas or has

the potential of that result being felt there 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 arid 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 a 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 kills 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 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 intended 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 arid panic amongst the people and 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 and Criminal Law 3(1) of TADA. It is of course, neither desirable nor possible to

catalogue 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.

(12). of late, we have come across some cases where the Designated Courts have charge-sheeted and/or convicted a person under TADA even

though there is not even an iota of evidence from which it could be inferred, even prima facie, let alone conclusively, that the crime was committed

with the intention as contemplated by the provisions of TADA, merely on the statement of the investigating agency too the effect mat the

consequence of the criminal Act resulted in causing panic or terror in the society or in a section thereof. Such orders result in the misuse of TADA.

Parliament, through Section 20A of TADA has clearly manifested its intention to treat the offences under TADA seriously inasmuch as u/s 20A(1),

notwithstanding anything contained in the Code of Criminal Procedure, no information about the commission of an offence under TADA shall even

be recorded without the prior approval of the District Superintendent of police and u/s 20A(2). No court shall take cognizance of any offence

under TADA without the previous sanction of the authorities prescribed therein. Section 20A was thus introduced in the Act with a view to prevent

the abuse of the provisions of TADA.

After going through the said decision, we are of the opinion that the facts of the present case cannot be classified as a mere law and order

problem or disturbance of the public order or even disturbance of the even tempo of the life of the community in any specified locality which can be

tackled as an ordinary penal activity under the ordinary penal law by the normal law enforcement agencies. Acts construed by the detenus prime

facie show that they are terrorists Act which will attract the provisions of the TADA Act and hence, there is no substance in his contention of Mr.

Sankara Subbu and accordingly, we reject the said contention.

As far as the second contention of Mr. Sankarasubbu is concerned, that there are no material as to frame charge under the provisions of

TADA Act as against Periyasamy, it should be borne in mind the provisions of Section 15 of the said Act. Section 15 of TADA Act reads as

follows:

Certain confessions made to Police Officers to be taken into consideration:

(1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 (1 of 1872) but subject to the provisions of this Section, a

confession made by a person before a police officer not lower in rank than a superintendent of police and recorded by such police officer in writing

or any mechanical device like cassettes, tapes or sound tracks from out of which sounds of images can be reproduced, shall be admissible in the

trial of such person or co-accused, abettor or conspirator for an offence under this Act or Rules made there under:

Provided that co-accused, abetter or conspirator is charged and tried in the same case together with the accused.

(2) explain, to the person making it that he is not bound to make a confession and that if he does so, it may be used as evidence against him and

such police officer shall not record any such confession unless upon questioning the person making it, he has reason to believe that it is being made

voluntarily.

Even according to the Petitioner, there is a confession statement of Senthilkumar about the participation of Periyasamy and hence in view of the

provisions of Section 15 of the Act, the said confession statement can be used against Periyasamy. Hence, there is no substance in the submission

made by the learned Counsel that there are no materials connecting Periyasamy in the said offence and they have to be set at liberty.

Turning to the third contention of the learned Counsel for the Petitioner that the prosecution has not complied with the requirements of Section

20A of the Act and on that ground, the detenus are entitled for liberty. It will be appropriate to extract Section 20A of the TADA which reads as

follows:

(1) Not-withstanding anything contained in the Code, no information about the commission of an offence under this Act shall be recorded by the

police without the prior approval of the District Superintendent of Police.

(2) No court shall take cognizance of any offence under this Act without the previous sanction of the Inspector General of Police, or as the case

may be, the Commissioner of Police.

Admittedly the crime was registered in the year 1992 and prior to the introduction of amendment and hence, the law which would be

applicable will be the law as it stood before the amendment and not the amendment law, Further, in paragraph 8 of the counter affidavit it is stated

that before filing the charge sheet in the case, sanction was obtained from the Inspector General of Police, Crimes, who is the competent authority

to accord such sanction u/s 20A of the Act and the investigation has been done in accordance with law and contention to the contrary is not

sustainable. We find that there is no substance in the argument of the learned Counsel for the Petitioner in this contention also.

Lastly, Sri Sankarasubbu, learned Counsel for the Petitioner submitted that Supreme Court in Kartar Singh v. State of Punjab (1994 2 L.W.

(Cri.) 422, the Review Committee of the State Government has not reviewed the case and hence, on this ground, the detenus are entitled for their

personal liberty. Learned Counsel has placed reliance on paragraph 179 of the said decision, at page 476, which is extracted below:

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 constituting of the Home Secretary, Law Secretary and other concerned Secretaries of various

Departments to review all the TADA Cases instituted by the Central Government as well as to have a quarterly administrative review, reviewing

the State''s 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 Committee at the State level constituted by the respective States

constituting 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.

Learned Additional Public Prosecutor submitted that it is a guideline given by the Supreme Court and in fact the Government has in number of

occasions reviewed the cases. He has also pointed out that the present case is not one which requires screening in view of the gravity and

seriousness of the offence. According to him, the acts on the face of it will amount to a terrorists Act and non-consideration by the Review

Committee is nor fatal so as to set the detenus free. He has also invited to the said decisions at paragraph 177 at page 475 and pointed out that it

is a guideline given by the Supreme Court to the Central Government to take note of these guidelines and incorporate them by appropriate

amendments in the Act and the Rules. Hence, he requested this Court to reject the contention raised by the learned Counsel for the Petitioner,

which we accede to.

No other contentions have been raised before us. Hence, for the reasons stated above, we see no merit in the above contentions and

accordingly the habeas corpus petition is dismissed.