IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26 .07.2010 CORAM THE HONOURABLE MR. JUSTICE C.NAGAPPAN and THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR H.C.P. No.1013 of 2010 and M.P.No.1 of 2010 1.Murugan S/o. Ayyanan 2.Sundaramurthy S/o.Vedi .. Petitioners (2nd Petitioner impleaded as per the order of this Court dated 15.06.2010 in MP.No.2/10) Vs. 1.The Chairman Review Committee under TADA Act Chief Secretary Fort St. George, Chennai – 600 009 2.The Principal Secretary to Government, Home (Police VII) Department, Secretariat, Fort St. George, Chennai – 600 009 .. Respondents Prayer : Petition under Article 226 of the Constitution of India, praying for issuance of Writ of Habeas Corpus to call for the records of the second respondent made in Letter No.39920/POL.VII/2008-3 dated 21.05.2010 and the Committee- TADA/POTA Review/Screening Committee meeting to be held on 07.06.2010 at 3.30 p.m and quash the same as illegal and direct the respondents to constitute a Review Committee of retired High Court Judge as Chairman to consider the illegal detention of the detenu Sundaramoorthy, Son of Vedi, TADA Prisoner, now confined at Central Prison, Puzhal-II, Chennai and set him at liberty. For Petitioner :: Mr. R.Sankarasubhu For Respondents :: Mr. P.Kumaresan Public Prosecutor O R D E R (Order of the Court was made by P.R.SHIVAKUMAR.,J.) This Habeas Corpus Petition had been originally filed by the first petitioner, Murugan, a practising lawyer, who claims to https://hcservices.ecourts.gov.in/hcservices/ be a human rights activist and member of Prisoners Release Movement. The Chief Secretary, Government of Tamil Nadu, as the Chairman of Review Committee under TADA Act, has been arrayed as the first respondent, whereas the Principal Secretary to the Government, Home Department, Government of Tamil Nadu, is shown as the second respondent. Though the petition was initially filed by Murugan, the first petitioner, when this court posed a question to him as to whether the detenu concerned was having no objection for moving such a petition on his behalf, the learned counsel for the petitioners, got a Vakalath from the detenu and filed it, pursuant to which the detenu Sundaramoorthy was added as second petitioner. 2. The second petitioner/detenu Sundaramoorthy, son of Vedi, is facing trial before the Designated Court No.II, TADA, Chennai in C.C.No.6/1993 for offences punishable under Section 120- B of IPC r/w Sections 4, 5 and 6 of Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as TADA Act, 1987). The trial of the case had already begun and it had reached a final stage, when the case was reserved for judgment. However, the same came to be reopened at the instance of the detenu/accused for the examination of defence witnesses. At that juncture, the present Habeas Corpus Petition came to be filed with a prayer to issue a direction in the nature of a writ of Habeas Corpus calling for the records of the second respondent relating to the proceedings of the second respondent in Letter No.39920/POL.VII/2008-3 dated 21.05.2010 and the records of the meeting of the Review Committee under the TADA Act scheduled to be held on 07.06.2010 and quash the same as illegal. It has also been prayed that the respondents be directed to constitute a Review Committee with a retired High Court Judge, as its Chairman, to consider the detention of the detenu Sundaramoorthy under TADA and to set him at liberty. The first petitioner, in his affidavit, has contended that the prolonged detention of the detenu Sundaramoorthy concerned in C.C.No.6/1993 pending on the file of Designated Court No.II, TADA, Chennai from 09.07.2007 is illegal and on that ground alone, he should be set at liberty. 3. The following are the contentions raised by the first petitioner in his affidavit. TADA Act expired on 22.05.1995 and as per the direction of the Supreme Court, a Review Committee headed by a retired judge of the High Court should have been constituted to review the cases, which were pending on the date of expiry of TADA Act. C.C.No.6/1993 on the file of the Designatred Court No.II, TADA, Chennai, in which the detenu Sundaramoorthy is the accused, is one of such cases that were pending as on the date of expiry of TADA Act and hence the detenu Sundaramoorthy gave a representation dated 18.03.2010 for transferring the case to the regular court and also obtained a direction from the High Court to consider the said representation. Though a Review Committee has been constituted to review the TADA cases and the committee considered the TADA case in which the detenu Sundaramoorthy is concerned, namely C.C.No.6/1993 on the file of Designated Court No.II, TADA, Chennai, the procedure https://hcservices.ecourts.gov.in/hcservices/ was unfair and violative of Article 21 of the Constitution of India, as the Review Committee was not headed by a retired Judge of the High Court. The deliberations of the Review Committee at its meeting held on 07.06.2010 are also unjust, illegal and violative of Article 21 of the Constitution of India. Therefore, the first petitioner, espousing the cause of the detenu Sundaramoorthy, was constrained to approach the court with the present Habeas Corpus Petition for the above said relief with a prayer for interim stay of all further proceedings of the Review Committee, pending disposal of the Habeas Corpus Petition. 4. In the counter affidavit and the additional counter affidavit filed on behalf of the respondents, the following contentions have been raised. i) The detention of V.Sundaramoorthy, son of Vedi concerned in C.C.No.6/1993 on the file of Designated Court No.II, TADA, Chennai is based on valid order of remand and as many as seven cases are pending against him in various courts. They are: 1) Cr.No.80/1992 (TADA Case) registered on the file Dharmapuri Railway Police, now pending on the file of Designated Court No.II, TADA, Chennai as C.C.No.6/1993, 2) Cr.No.104/2002 registered on the file of Uthangarai Police Station, which is now pending on the file of Special Court for POTA cases, Poonamallee, Chennai as Special C.C.No.5/2003, 3) Cr.No.232/2007, registered on the file of Periyakulam Police Station, now pending on the file of Judicial Magistrate, Periyakulam as PRC No.14/2009, 4) Cr.No.269/2001 registered on the file of Mathikonepalayam Police Station, now pending onthe file of Judicial Magistrate-I, Dharmapuri as C.C.No.82/2007, 5) Cr.No.162/2004 registered on the file of Nagarasampatti Police Station, now pending on the file of Sessions Court, Krishnagiri as S.C.No.15/2005, 6) Cr.No.413/2004 registered on the file of Nagarasampatti Police Station, now pending on the file of Sessions Court, Krishnagiri and 7) Cr.No.117(A)/2004 registered on the file of Koraput Police Station, Orissa State. ii) It is correct to state that TADA Act, 1987, expired on 22.05.1995. But, it is not correct to state that the Review Committee was not constituted in accordance with the directions of the Supreme Court. As per the judgment of the Supreme Court made in Kartar Singh Vs. State of Punjab, a Review Committee consisting of the following persons 1) Chief Secretary – Chairperson, 2) Home Secretary, 3) Law Secretary, 4) Director General of Police, Tamil Nadu, 5) Additional Director General of Police (Law and Order) and 6) Inspector General of Police (Intelligence) – Members, was constituted to review the TADA cases, including C.C.No.6/1993 in which the detenu/second petitioner is concerned, the Review Committee reviewed the said case in the past on ten occasions, namely on 20.09.2007, 11.12.2007, 13.01.2008, 04.06.2008, 22.10.2008, 18.12.2008, 01.04.2009, 05.08.2009, 15.12.2009 and 19.03.2010. However, the second petitioner/detenue Sundaramoorthy again sent a representation dated 18.03.2010 to the Government for reviewing his case in accordance with the dictum laid down by the Supreme Court in Kartar Singh Vs. State of Punjab case and for https://hcservices.ecourts.gov.in/hcservices/ transferring the case to regular court from the Designated Court No.II, TADA, Chennai. He had also filed a writ petition in W.P.No.5690/2010 seeking the issue of a writ of mandamus directing the respondents to consider the aforesaid representation. This court, by order dated 29.04.2010, directed the Home Secretary to the Government of Tamil Nadu, to consider the request of the second petitioner and pass necessary orders in accordance with law on or before 11.06.2010. In compliance with the said order of this court made in W.P.No.5690/2010, the State Government convened the Review Committee constituted based on G.O.(MS) No.946, Home (Police-VII) Department dated 18.08.1994 issued in accordance with the judgment of the Hon'ble Supreme Court made in Kartar Singh Vs. State of Punjab case. The meeting of the Review Committee for consideration of the representation of the detenu Sundaramoorthy was scheduled to be held on 07.06.2010. Under such circumstances, the first petitioner chose to file the present Habeas Corpus Petition challenging the constitution of the Review Committee and seeking the release of the detenu Sundaramoorthy, the second petitioner. iii) Unlike Review Committee constituted under POTA Repeal 2004, the Review Committee constituted for TADA cases shall periodically review the case and pass orders till the case is disposed of by the Designated Court. In a similar case, namely Cr.No.346/93 on the file of Kullanchavadi Police Station, the accused therein by name Venkatesan filed a writ petition in W.P.No.15561/2003 seeking withdrawal of the charges under TADA Act, 1987 and the High Court dismissed the said writ petition with a direction to the trial court to proceed with the case on day to day basis and a direction to the Screening Committee/Review Committee constituted in accordance with the directions of the apex court in Kartar Singh Vs. State of Punjab, to make quarterly review of the case of the petitioner therein notwithstanding the fact that the case before the Designated Court would be progressing. Constitution of the Review Committee, as per the judgment of the Supreme Court made in Kartar Singh Vs. State of Punjab was not challenged earlier and the representation of the second petitioner (detenu) dated 18.03.2010 is also to the effect that his case must be considered by the Review Committee constituted as per the directions of the Supreme Court in Kartar Singh Vs. State of Punjab. The detenu/second petitioner is not justified in seeking a direction for reconstitution of the committee which was constituted in accordance with the directions of the Supreme Court in Kartar Singh Vs. State of Punjab and the present Habeas Corpus Petition is liable to be dismissed in limini, as the same is not even maintainable. 5. We heard the submissions made by Mr.R.Sankarasubbu, learned counsel for the petitioners and by Mr.P.Kumaresan, learned Public Prosecutor, on behalf of the State and this court paid its anxious consideration to the same. 6. The Habeas Corpus Petition was originally filed by the first petitioner alone purporting to espouse the cause of the second petitioner on the pretext that the first petitioner was a https://hcservices.ecourts.gov.in/hcservices/ human rights activist and a member of Prisoners Release Movement. The court was cautious to ensure that the petition was not moved without the knowledge or against the wishes of the second petitioner, whose release is sought for ultimately in the Habeas Corpus Petition. In view of the said approach, Mr.R.Sankarasubbu, learned counsel for the petitioners, got Vakalath authorising him to appear on behalf of the second petitioner also and thus the detenu, whose release is sought for in the Habeas Corpus Petition, has been impleaded as the second petitioner. Though the ultimate relief sought for in the petition is the release of the second petitioner from custody, the same is sought for only consequent to the other relief, namely re-constitution of the Review Committee under the TADA Act, 1987. 7. The continued detention of the second petitioner pending disposal of the TADA case against him, namely C.C.No.6/1993 on the file of the Designated Court No.II, TADA, Chennai is challenged, as illegal and violative of Article 21 of the Constitution of India on the ground that the said case against the second petitioner was not considered by a Review Committee properly constituted in accordance with the direction issued by the Supreme Court in a public interest litigation, namely Shaheem Welfare Association versus Union of India and Others reported in 1996 Supreme Court Cases (Cri) 366. According to the submissions made on behalf of the petitioners, on the expiry of the TADA Act, 1987, when the plight of the undertrial prisoners facing charges under TADA Act was brought to the notice of the apex court in the public interest litigation in the above mentioned case, the Hon'ble Supreme Court directed constitution of a Review Committee headed by a retired judge of the High Court and despite such a direction, the case of the second petitioner was not referred to such a Review Committee headed by a retired judge of the High Court, as its Chairperson and thus the continued detention of the second petitioner is illegal, unlawful and in violation of the fundamental rights guaranteed under Article 21 of the Constitution of India. In short, the point raised by the petitioners is that the continued detention of the second petitioner has become unsustainable because of the failure to reconstitute the Review Committee as per the dictum laid down in Shaheem Welfare Association's case and hence the second petitioner is entitled to his freedom by way of a direction to the respondents. 8. On the other hand, it is the contention of the learned Public Prosecutor that the Review Committee for reviewing the TADA cases was constituted in accordance with the dictum laid down by a Constitutional bench of the Hon'ble Supreme Court in Kartar Singh Vs. State of Punjab reported in 1994 Supreme Court Cases (Cri) 899; that the said Committee considered the case of the second petitioner ten times on earlier occasion; that after the last representation made by the second petitioner dated 18.03.2010 was received by the Government, the same was referred to the said Review Committee and that when the Review Committee was scheduled to meet on 07.06.2010, the first petitioner approached this court with this Habeas Corpus Petition with ulterior motive. It is the https://hcservices.ecourts.gov.in/hcservices/ further contention of the learned Public Prosecutor that the case against the second petitioner, namely C.C.No.6/1993 on the file of the Designated Court No.II, TADA, Chennai, had reached the final stage and was right for pronouncing judgment, from which stage, successive steps are being taken to prevent a judgment being pronounced in the said case and that the real intention with which the representation was given and the Habeas Corpus Petition was filed, is to protract the case and to try to get the second petitioner released on bail showing the delay. It is the further contention of the learned Public Prosecutor that the unrelenting efforts made by the second petitioner to come out of the custody before a judgment would be pronounced in the TADA case, in which he figures as the accused, will show malafide and lack of bonafide. 9. The Terrorist and Disruptive Activities (Prevention) Act, 1987, was enacted and as per Section 1(3) of the said Act, the same shall be deemed to have come into force on 24th day of May, 1987. Initially, it was mean for to be in force for two years. Subsequently, by way of amendments, Section 1(4) of TADA Act, 1987 was amended and as per the amended Section 1(4) as it stood amended by the last of such amending Acts viz. Act No.43 of 1993, it was to be in force for two years from 24.05.1987. At the end of the above said period of eight years, the Act was not extended further. Therefore, the Act lapsed on 23.05.1995 and not on 22.05.1995, as stated in the affidavit of the first petitioner. When a penal act is repealed or allowed to lapse, in order to ensure that the violations of such penal provision during its currency in force, do not go unpunished, unless the legislature decides otherwise, and for preserving any right, privilege, obligation or liability accrued or incurred under the Act, it is usual to provide either in the repealing Act or in the original Act itself a saving clause for the continuation of the proceedings initiated under such Act. Similar provision had been incorporated in the TADA Act, 1987 also in the form of Section 1(4) and it reads as follows:- (4) It shall remain in force for a period of eight years from the 24th day of May, 1987, but its expiry under the operation of this sub-section shall not affect (a) the previous operation of, or anything duly done or suffered under this Act or any rule made thereunder or any order made under any such rule, or (b) any right, privilege, obligation or liability acquired, accrued or incurred under this Act or any rule made thereunder or any order made under any such rule, or (c) any penalty, forfeiture or punishment incurred in respect of any offence under this Act or any contravention of any rule made under this Act or of any order made under any such rule, or (d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or https://hcservices.ecourts.gov.in/hcservices/ punishment as aforesaid, and any investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if this Act had not expired." A reading of Section 1(4) of TADA Act 28 of 1987 makes it clear that the criminal proceedings, cases registered, investigations started and the cases taken on file for TADA offences are saved despite the fact that the Act was allowed to lapse with 23.05.1995. 10. The learned Public Prosecutor invited the attention of the court to the factual background in which this Habeas Corpus Petition happened to be filed and the same is not disputed, but admitted on the side of the petitioners. The above mentioned factual background is as follows:- i) In the present case, the case against the second petitioner and others for offences including TADA offences, was registered long back in 1992 and the final report submitted originally numbered as C.C.No.3/1993. Since the second petitioner as absconding accused, the court had to split up the case against the second petitioner and it was separately numbered as C.C.No.6/1993. All these things happened while the TADA Act was very much in force. The second petitioner, who was absconding and evading the process of law, came to be arrested in another case, pursuant to which he was produced in the above said TADA case, namely C.C.No.6/1993 on the file of Designated Court No.II, TADA, Chennai on P.T. warrant and remanded in that case also. It happened in the year 2007. After his remand in the above TADA case, there was no significant delay in the trial of the case at the instance of the prosecution. ii) On the other hand, the second petitioner caused filing of Habeas Corpus Petitions for his release and in one such HCP, namely H.C.P.No.1480/2009 while dismissing the same, this court directed the trial court to complete examination of the prosecution witnesses on or before a date fixed in the said order. The same was complied with by the Designated Court No.II, TADA, Chennai and after examination of the accused (second petitioner herein) under Section 313 Cr.P.C, arguments were heard, since the second petitioner stated that he had no evidence to be adduced on his side and the case stood posted to 29.03.2010 for pronouncing judgment. Under the said circumstances, the second petitioner seems to have caused filing of W.P.No.5690 of 2010 seeking his release based on the contention that the mechanical extension of custody between hearing dates by the trial court was illegal and also the present HCP based on the contention that his continued custody is illegal, because the Review Committee constituted by the government, is not headed by a retired judge of High Court as its Chairman, as per the dictum laid down by the Hon'ble Supreme Court in Shaheem Welfare Association's case. The petitioners also got an interim order of stay of proceedings of the Review Committee scheduled to meet on 07.06.2010. The second petitioner also took parallel steps to stall the criminal case and prevent the Designated Court No.II, TADA, Chennai from pronouncing judgment by https://hcservices.ecourts.gov.in/hcservices/ filing petitions to transfer the case to regular court and seeking the leave of the court to adduce defence evidence. The Designated Court No.II, TADA, Chennai, allowed the petition seeking the leave of the court to adduce defence evidence and admittedly defence witnesses were also examined and the case is now ripe for judgment, if further arguments are advanced. Under such circumstances alone, the present Habeas Corpus Petition came to be filed. 11. In the above said factual background, the contentions raised by both sides in this case have to be considered. 12. The main contention of the learned counsel for the petitioners is that the constitution of the Review Committee is not in accordance with the direction issued by the Hon'ble Supreme Court and the Review Committee needs reconstitution. According to the submissions of the learned counsel for the petitioners, the Review Committee to review TADA cases, should be headed by a retired High Court Judge as its chairperson, whereas in the Committee appointed by the Government, the Chief Secretary functions as its Chairperson. It is the further contention of the learned counsel for the petitioners that since the Committee has not been properly constituted, the second petitioner is entitled to his liberty. In support of his contention, the learned counsel for the petitioners, relied on the following judgments:- i)The Government of Tamil Nadu and Others versus Union of India and another reported in 2004 (1) T.N.L.R. 429 (Mad); ii)R.R.Gopal @ Nakkheeran Gopal vs. The Secretary, Home Department, Government of Tamil Nadu, St. Fort George, Chennai-9, 2. The Deputy Superintendent of Police, Head Quarters, CBCID, Chennai reported in 2005-2-L.W.(Crl.) 629; iii)E.Shahul Hameed Versus State of Tamil Nadu rep. By its Chief Secretary reported in (2007) 1 MLJ (Crl) 425; iv)Usmanbhai Dawoodbhai Memon and others, etc., v. State of Gujarat reported in AIR 1988 SUPREME COURT 922; v)Vijaykumar Baldev Mishra @ Sharma v. State of Maharashtra reported in AIR 2008 SUPREME COURT 961 and vi)Shaheem Welfare Association Versus Union of India and Others reported in 1996 Supreme Court Cases (Cri) 366. 13. The judgment of a Division Bench of this court in Government of Tamil Nadu and Others versus Union of India and another reported in 2004 (1) T.N.L.R. 429 (Mad) relied on by the learned counsel for the petitioners, no way supports the contention of the learned counsel for the petitioners. The original POTA 2002, contained only three sub-clauses in Section 60. By way of amendment in 2003, sub-clauses 4 to 6 were also added. As per the amended Section 60, the Central Government and each State Government had to constitute one or more Review Committees headed by a sitting or retired High Court judge as its Chairperson for the purposes of the said Act. As per the original Section 60, powers were given to the Review Committee to review the matters mentioned in Sections 19, 40 and 46. The said purposes are not relevant to the case on hand. Only by the said amendment, power was given to https://hcservices.ecourts.gov.in/hcservices/ the Review Committee to consider an individual case on an application being filed by an aggrieved party as to whether there is a prima-facie case for proceeding against the accused under POTA. Sub-clause (1) of Section 60, sub-clause (6) gives primacy to the directions issued by the Committee constituted by the Central Government. One such direction issued by the Review Committee constituted by the Central Government to place the records of a particular case for the consideration, was challenged in the above said case contending that the direction of the Committee encroached upon the judicial powers of the State. The court upheld the power of the Committee constituted by the Central Government under POTA to issue such directions. However, an observation was also made to the effect that when such directions would be issued in a case in which charges were framed in the court, then on a representation by the Public Prosecutor to withdraw prosecution, the court should decide under Section 321 of the Criminal Procedure