IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 18/12/2003 Coram The Honourable Mr. Justice V.S. SIRPURKAR and The Honourable Mr. Justice M. THANIKACHALAM Criminal Appeal No.749 of 2003 and 750 to 752 and 764 to 766 of 2003 1. P. Nedumaran ... Appellant in Crl.A. No.749 of 2003 2. Pavanan Appellant in Crl.A. No.750 of 2003 Appellant in Crl.A. No.766 of 2003 3. Subha Veerapandian Appellant in Crl.A. No.751 of 2003 4. Dr. A. Thayappan Appellant in Crl.A. No.752 of 2003 5. Shahul Hameed Appellant in Crl.A. No.764 of 2003 6. K. Paranthaman Appellant in Crl.A. No.765 of 2003 -Vs- STATE rep. by Deputy Superintendent of Police Q Branch CID Chennai City Chennai 600 005 ... Respondent in all the appeals Appeals under Sec.49 of the Prevention of Terrorism Act 2003 read with Sec.439 of Crl.P.C. against the orders passed by the Special Court under the Prevention of Terrorism Act, Poonamallee in Crl.M.P. Nos.26 to 29 of 2003 !For Appellants :: Mr. N. Natarajan, Senior Counsel Mr. K. Chandru, Senior Counsel for Mr. Yashod Vardhan ^For Respondents :: Mr. I. Subramanian, Public Prosecutor/ Senior Counsel :COMMON JUDGMENT (Delivered by V.S. SIRPURKAR, J.) This judgment shall dispose of the following criminal appeals, viz. Crl.A. Nos.749 to 752 and 764 TO 765 of 2003. 2. Criminal Appeal Nos.749 to 752 and 764 of 2003 have been filed by Pala Nedumaran, Pavanan, Subha Veerapandian, Thayappan and Shahul Hameed respectively. Criminal Appeal No.765 of 2003 has been filed by K. Paranthaman. All these accused persons are facing prosecution for the offences under Sec.21(1)(a), 21(2) and 21(3) of Prevention of Terrorism Act, 2002 (in short 'POTA'), which offences are punishable under Sec.21(4) POTA and Sec.10 of the Unlawful Activities ( Prevention) Act, 1967 and Sec.124(A), 153(A)1(A) of Indian Penal Code (IPC). The gravamen of the charge is that all these accused persons are sympathisers/followers of an organisaition called Liberation Tigers of Tamil Eelam (LTTE), which organisation is a banned organisation under Unlawful Activities (Prevention) Act and is also a scheduled organisation under Sec.18 of POTA. There is no dispute regarding the fact that LTTE is thus a banned organisation and exhorting support for which is an offence under Sec.21 of POTA. 3. It seems that a charge-sheet came to be filed in this matter on 20-1-2003 from which it is seen that the accused persons or most of them have been arrested on the basis of a complaint made by the Inspector of Police, Central Crime Branch, Chennai City on 14-4-2002 wherein it was complained that on 13-4-2002 evening, there was a indoor meeting organised by a Tamil Publication called "Tamil Muzakkam', having its office at No.29 Dr. Gurusamy Road, Chetpet, Chennai. It was alleged therein that the said indoor meeting took place insite the Anand Theatre, 689 Anna Salai, Chennai between 6.00 pm and 9.25 pm on the topic 'An interview with the renowned Liberation Tigers Chief - an evaluation'. It was alleged in the complaint that the said meeting was organised to discuss about the press meet held in Sri Lanka by the LTTE leaders namely Thiru Prabhakaran and Thiru Anton Balasingham and that it was conducted under the presidentship of Pala Nedumaran (A-1) and the rest of the accused, viz. Pavanan (A-2), Subha Veerapandian (A-3) and Thayappan (A-4) and others also participated in the said indoor meeting and addressed the gathering encouraging the support for the LTTE. It was alleged that all these accused persons belonged to a registered political party called 'Tamilar Desiya Iyakkam'. It was suggested in the charge-sheet further that Shahul Hameed (A-5), appellant in Criminal Appeal No.764 of 2003, is the proprietor of a Tamil publication called 'Tamil Muzakkam' and that the other accused persons are the active volunteers and sympathisers of said Tamilar Desiya Iyakkam. 4. It is then the prosecution case in this charge-sheet that LTTE was included as an organisation covered under Unlawful Activities ( Prevention) Act, 1967 and that the Tribunal formed under that Act had confirmed the notification dated 14-5-1992 issued by the Government of India, declaring LTTE as an unlawful association under the said Act. A reference was made to the observations of the Tribunal in that order to 'Tamilar Desiya Iyakkam' being a radical chauvinist organisation indulging in terrorizing and dangerous activities with the object fo cession and disrupting the sovereignty and territorial integrity of India. It is then contended that on 14-5-1994, the said organisation LTTE was declared as an unlawful association. It was also alleged that A-1 Pala Nedumaran has authored a biographical account of LTTE leader Kittu under the title 'Kaviyanayakan Kittu' (Epic Hero Kuttu) and that 298 copies of the books were seized when they were about to be sent overseas and for that purpose a crime was registered against A-1 Pala Nedumaran. It is suggested that the pro-LTTE activities of A-1 Pala Nedumaran are to be found in the judgments of the Tribunal dated 13-11-1996 and 13-11-1998 also. Then there is a reference made again to the LTTE being declared as an unlawful association. It is then pointed out that there was a reference in the Tribunal's order dated 13-11-1998 that A-2 Suba. Veerapandiayn had delivered a speech while inagurating the branch of 'Tamilar Desiya Iyakkam' at Tambaram, Chennai and had asserted that his party would support the cause of LTTE and that in a further meeting held on 28-9-1996, he condemned the killing of Tamils in Sri Lanka and once again asserted that Tamil Eelam would prosper soon and appealed to the people to support LTTE and that in a public meeting held on 22-7-1999, he accused the Designated Judge for threatening those who speak in support of Tamil Eelam would be awarded with a capital punishment and further he had said that even if hanging rope is shown, the support to Tamil Eelam would continue. 5. The charge-sheet further mentions that the declaration of LTTE as an unlawful association was extended from time to time by the Government of India on the ground that LTTE was an unlawful association as it was having sympathisers and supporters in the State of Tamil Nadu like the accused persons herein. Again a reference is made to the judgments of the Tribunal during the years 1992, 1994, 1998 and 20 00 whereby LTTE was declared as an unlawful association for two years and it was ultimately asserted that the above materials established the inclination and guilty intention of A-1 Pala Nedumaran, A-2 Suba. Veerapandiyan as well as the members and sympathisers like A-3 Pavanan @ Pudukottai R. Pavanan, A-4 Thayappan and A-5 Shahul Hameed of ' Tamilar Desiya Iyakkam'. Then a reference is made that the LTTE has been declared as a terrorist organisation under entry 21 of the schedule appended to POTA. 6. It is then that a reference is made to a meeting held on 13-4-2002, to which we have already made a reference. The charge-sheet further goes on to state that A-1 Pala Nedumaran delivered an objectionable speech and the excerpts of the speech is given in Tamil, the English translation of which is as under: ""We have been continuously raising our voice in Tamil Nadu against the Sinhala racist attack on our brothers and sisters and supporting the Liberation Tigers. We need not fear for anyone. Without understanding what is happening in the country, if anyone thinks that by giving small, small pinpricks the movement can be suppressed, respected gentlemen, you do not know what is the movement. I warn you today, if the right to speech and expression can be stopped, it can only lead to a disastrous path. It is all right if you do not help the Srilankan Tamils, please do not give them trouble. Prabhakaran is only 47 years old but as a seasoned statesman he is telling that the friendship with India should be again renewed. Today those who are describing Prabhakaran as a terrorist are the ones who will push us back and first garland him when he becomes the leader of Tamil Eelam and visits Tamil soil. If an independent Tamil Eelam is formed, it will only be a friendly country to India. Whether the American forces come or their forefathers forces come, the liberation Tigers can tackle them. We should rally behind and stand beside Prabhakaran. This is our duty. Today Prabhakaran appears as a great leader who comes once in thousand years. The struggle to liberate Eelam soil under his leadership is not a mere struggle, don't forget it will be struggle for bringing dawn in the lives of Tamils living all over the world. It is our life time duty to support the struggle despite facing all kinds of oppression and thus I conclude my speech. " It is suggested from this that the speech attracts the offences under Sec.21(1)(a) and Sec.21(3) POTA, punishable under Sec.21(4). It is then pointed out that prior to the said indoor meeting, in the first week of April 2002, accused 1 to 4 have gone to the office of Shahul Hameed (A-5) and had discussed with him about the making arrangements for conducting a indoor meeting and accordingly A-1 Pala Nedumaran gave Rs.2,000/- as advance amount towards the expenses for arranging the said meeting and further accused 1 to 4 had explained to A-5 Shahul Hameed about the style and pattern of the pamphlets and wallposters to be printed. It is therefore contended that A-1 Pala Nedumaran had assisted in arranging the said indoor meeting which knew was to support the terrorist organisation LTTE and hence had committed the offence under Sec.21(2) POTA, punishable under Sec.21(4) of the said Act. 7. It is then further suggested in the charge-sheet that A-1 Pala Neduamaran had participated in a public meeting held on 24-8-2001 at Ottanchatiram in Dindigul District, on 26-11-2001 at Pudukottai, on 1 0-2-2002 at Tiruchy, on 31-3-2002 at MTT Hindu College Higher Secondary School Campus at Tirunelveli, on 1-5-2002 at New Washermenpet in Chennai, on 19-5-2002 at Thanjavur Town, on 13-6-2002 in a marriage function at Swamimalai in Thanjavur District and on 15-6-2002 at Tambaram and in all these meetings A-1 Pala Nedumaran addressed encouraging support for LTTE and that this established the guilty intention of A-1 Pala Nedumaran. 8. It is then suggested that the searches and investigations were conducted on 8-8-2002 at the office of 'Tamilar Desiya Iyakkam' as also at the residence of A-1 Pala Neduraman in Chennai city and during the course of search many pro-LTTE literature, photographs of A-1 Pala Neduraman taken while in the company of LTTE leaders Prabhakaran and Mathaiya were seized and also the books written by him encouraging the activities of LTTE. 9. Similarly in the same charge-sheet, the excerpts of the speech delivered by A-2 Suba. Veerapandiyan is given. The English translation thereof is as under: "You are threatening that POTA will pounce on us, if we talk about Tigers (LTTE). Can you threaten the persons associated with Tigers. It is certain that Tamil Eelam will blossom, whatever the obstacles in its' way. The whole world welcomes the press report of Prabhakaram. It is a life-time disgrace to us that a resolution has been passed in the State Legislature condemning the press report of Prabhakaram. Tigers have nothing to lose. They have nothing to lose except the cyanide capsules. With this, I take leave." 10. Paragraph 14 of the charge-sheet is nothing but the allegations against A-5 Shahul Hameed in more particularly and the four other accused persons for arranging the meeting. Paragraph 15 speaks about the activities of A-2 Suba.Veerapandian that he was a supporter and believed in the philosophy of LTTE or eulogised the deeds of LTTE leader Prabhakaran. It is, therefore, suggested that he had also committed the offence under Sec.2(F)(1) read with Section 13(1) (b) of Unlawful Activities (Prevention) Act, 1967. Paragraph 16 gives the extracted portion of the objectionable speech given by A-3 Pavanan in the meeting held on 13-4-2002, the English translation of which reads as follows: "Madam Jayalalithaa, you keep on speaking like this. You are going to see on the Television the blossoming of Tamil Eelam. You keep on talking like this. Television will see the second Tamil Nadu. When the press-meet of Prabhakaran was telecasted, people in Pudukottai had seen it. Crackers were burst at ten places. I too enjoyed the press-meet. Prabhakaran spoke wholly in Tamil. Journalist from Hindu newspaper alone asked about Rajiv Gandhi assassination." 11. Similarly, paragraph 18 speaks about A-3 Pavanan and the meeting which he had attended. In paragraph 19, it is stated that A-3 Pavanan is facing three prosecutions vide Crime Nos.161/96, 27/2002 and 327/2002, all in Pudukottai and Virudhunagar Districts under the provisions of Unlawful Activities (Prevention) Act, Arms Act and Criminal Law (Amendment) Act. 12. The excerpts of the objectionable speech given by A-4 Thayappan is given in paragraph 20 of the charge-sheet. In paragraph 21, there is nothing but the repetition of the earlier charges. Same is the case with paragraphs 23 and 24 which suggests that A-5 Shahul Hameed was facing the prosecution for the offences under Sections 124 (A) and 153(B) IPC and Sec.10 of the Unlawful Activities (Prevention) Act, 1967. 13. Then the charge-sheet has given the draft charges also, being charge Nos.1, 2 and 3. They are as under: "Charge No.1: Whereas A1- Pazha.Nedumaran, A2- Suba.Veerapandiyan, A3- Pavanan alias Pudukottai R.Pavanan, A4 - Thayappan and A5 - Shahul Hameed associated themselves with guilty intention as narrated above and have knowingly arranged or assisted in arranging the indoor meeting held on 13.4.2002 between 6 pm and 9.25 pm at Anand theatre situated at No.689, Anna Salai, Thousand Lights, Chennai 600 006, for the purpose of supporting the terrorist organisation namely, the Liberation Tigers of Tamil Eelam. Thereby A1 - Pazha Nedumaran, A2- Suba. Veerapandiyan, A3 - Pavanan alias Pudukottai R.Pavanan, A4- Thayappan and A5- Shahul Hammed, appear to have committed offence under section 21(2) of the Prevention of Terrorism Act, 2002 thereby rendering themselves liable to be punished under section 21(4) of the Prevention of Terrorism Act, 2002. Charge No.2: Whereas during the course of the same transaction A1 - Pazha Nedumaran, A2- Suba. Veerapandiyan, A3- Pavanan alias Pudukottai R. Pavanan and A4- Thayappan addressed in the said indoor meeting held on 13.4.2 002 between 6 pm and 9.25 pm at Anand theatre situated at No.689, Anna Salai, Thousand Lights, Chennai 600 006, encouraging support for LTTE which is a terrorist organisation. Thereby, A1 - Pazha Nedumaran, A2- Suba. Veerapandiyan, A3- Pavanan alias Pudukottai R. Pavanan, A4 - Thayappan appear to have committed offence under section 21(3) of the Prevention of Terrorism Act, 2002 , thereby rendering themselves liable to be punished under section 21(4) of the Prevention of Terrorism Act, 2002. Charge No.3: Whereas during the course of the same transaction, A1- Pazha Nedumaran addressed in the said indoor meeting held on 13.4.2002 between 6 pm and 9.25 pm at Anand theatre situated at No.689, Anna Salai, Thousand Lights, Chennai 600 006, inviting the support for LTTE, which is a terrorist organisation. Thereby, A1- Pazha. Nedumaran, appears to have committed an offence under section 21(1)(a) of the Prevention of Terrorism Act, 2002, thereby rendering himself liable to be punished under section 21(4) of the Prevention of Terrorism Act, 2002. " 14. It is pointed out that A-1 Pala Nedumaran was arrested on 1-8-2002 and the other accused persons, viz. accused 2, 3 and 4 shortly thereafter on 16-8-2002, 6-9-2002 and 3-10-2002 respectively while A-5 Shahul Hameed was absconding accused. It is now reported that A-5 Shahul Hameed was arrested on 11-3-2003 as he had surrendered himself before the Magistrate. 15. It is on this basis that the charge-sheet is filed. We are now told that the charges have also been framed before the trial court and the trial is on and about four witnesses have been examined, whose cross-examination has been deferred. 16. Incidentally, this is not the first bail application that the accused persons have made. It will be seen from the dates, which we have given above, that barring A-5 Shahul Hameed, who surrendered somewhere in the month of March, 2003, all the other accused persons have been inside the jail for the last one year and seven months. In their first bail application, which was made before the trial court, the Special Judge took the view, interpreting the provisions of Sec.4 9(6) and (7) of POTA, that there was no right even to move the court for the bail till the accused persons complete one year of detention. In the appeals which were filed, the Division Bench of this Court, to which one of us (Sirpurkar, J.) was a party, took the view that it was not as if the application itself could not be made at all within one year of detention but the application, if made, would be decided on the basis of the specific language of Sec.49(7) of POTA where it would be essential for the accused persons to convince the court that they are not prima facie guilty of the offences involved in the matter. The Division Bench held, relying on the proviso to the section, that the section did not in any manner prevent a bail application being entertained. It was further pointed out by the Division Bench that where the accused remains in detention for the offence for more than one year then the rigourous conditions under Sec.49(7) of POTA would not apply while considering the plea of the bail but it would be the ordinary provisions of bail under Sec.49(6) of POTA read with the relevant provisions of the Code of Criminal Procedure, more particularly Sections 437 and 439. Taking this view, the Division Bench remitted back the matter to the trial court where the matter was again argued on merits and the trial court again took the view that the accused persons could not show to the court that they were prima facie not guilty of the offences alleged against them. Obviously, the learned Judge relied on the express language of Sec.49(7) of POTA. It is this order passed by the trial court, which is in challenge in these appeals. 17. Learned senior counsel, M/s. N. Natarajan and K. Chandru appearing on behalf of the appellants have taken us through the provisions of the Act as also through the charge-sheet. They contended that in the first place, if the whole charge is taken into consideration, the result would be that it is only the meeting dated 13-4-2002 held in Anand Theatre complex, which would be the subject matter of the prosecution. Learned counsel then pointed out that the real import of Sec.21(1)(2) and (3) was that the said speeches should be made with a specific intention to support the terrorist organisation so as to bring about the acts of terrorism or, as the case may be, so as to invite the people to join and support the activities of the terrorist organisation. Learned counsel pointed out that even if all the speeches and more particularly those which have been delivered on 13-4-2002 are taken to be proved, there was nothing in those speeches which spelt out such an intention on the part of the speakers. Learned counsel further urged that the speeches only expressed the unity with the Tamil-speaking brethren in Sri Lanka and there was nothing to suggest that the speakers propagated cession from Union of India so as to bring about threat to the sovereignty of India. Their main plank of the argument was that none of the speeches made in the meeting dated 13-4 -2002 could spell out any of the offences under Sec.21 of POTA. In fact, this was the line of argument even before the trial court. 18. Learned senior counsel, more particularly Shri K. Chandru, also argued the matter threadbare on the basis of the charge-sheet to suggest that barring the books, which probably propagated Tamil unity, no objectionable material has been seized in the nature of explosives, arms, etc. from any of the accused persons. From this, learned counsel urge that at least on the basis of the charge as framed against the accused persons, two inferences emerge. First being that the accused persons were being booked for their speeches made in the meeting dated 13-4-2002 only and the second being, that even if the facts and material are taken into consideration in respect of the some other meetings in respect of which there was no charge, there was nothing to suggest even in those speeches that those lectures were given with an intention to commit an offence under Sec.21 of POTA and with an objective to create terror or to support the acts of terrorism. Shri Chandru urged that in this case, during the pendency of the bail applications, one year period had already elapsed wherein, the accused 1 to 4 were in detention in respect of the offences under POTA. He, therefore, urged that the Court should dispose of in the light of the provisions of bail under the Code of Criminal Procedure read with Sec.4 9(6) and not under Sec.49(7) of POTA. 19. As against this, Shri I. Subramanian, learned Public Prosecutor argued that any over appeal in a meeting expressing support to a terrorist organisation would attract the provisions of Sec.21 of POTA. According to the learned Public Prosecutor voicing a support of sympathy for any terrorist organisation that too publicly would naturally be covered under the wide spectrum of the language of Sec.2 1 POTA. Learned Public Prosecutor further argued that atleast from the language of the section, there was no necessity of the mens rea or guilty intention necessary for commission of these offences. Learned Public Prosecutor very painstakingly translated all the speeches, as one of us (Sirpurkar, J.) is not conversant with Tamil language. Learned Public Prosecutor then brought to the notice the voluminous material available against the accused persons individually as well as jointly. He points out that the speeches clearly expressed the support to the LTTE which is a banned organisation under the schedule appended to POTA. He further pointed out that though the charge is not specifically in respect of other meetings, the facts relating to those meetings were sought to be proved and were made a part of the charge-sheet with the idea to display as to how the mind of the speakers worked. Learned Public Prosecutor argued that the speeches delivered in the meeting dated 13-4-2002 were nothing but an end-result of the guilty intention on the part of the accused persons and would have to be read not independently but in the light of the fact that such inflammatory speeches were being made or were actually made even prior to the meeting dated 13-4-2002. It is suggested that the accused more particularly A-1 Pala Nedumaran and A-2 Suba Veerapandian have addressed a number of such meetings. 20. While the arguments were on in these appeals, the celebrated judgment of the Supreme Court in PEOPLE'S UNION FOR CIVIL LIBERTIES AND ANOTHER v. UNION OF INDIA was pronounced on 16-12-2003 and the excerpts copy has been made available to us by the learned Public Prosecutor as also by the learned defence counsel. Learned Public Prosecutor, therefore, fairly agrees that it will not now be necessary for us to apply Sec.49(7) of POTA and the rigour therein for examining the question as to whether bail should be granted or not and the bail will have to be granted on the basis of the general considerations for grant of bail which are even displayed in the judgment of the Apex Court. Learned Public Prosecutor says that even if those general considerations are to be relied on yet, it is not possible to grant bail more particularly to the accused 1 to 4, who have completed their one year of detention for the offences under POTA. He points out that there are number of cases pending against A-1 Pala Nedumaran as also few cases are pending against the