IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21-07-2005 CORAM THE HONOURABLE MR JUSTICE P.K. MISRA AND THE HONOURABLE MR JUSTICE S. ASHOK KUMAR WRIT PETITION NO.25137 OF 2004 AND W.P.M.P.NO.30578 OF 2004 R.R. Gopal @ Nakkheeran Gopal ... Petitioner Vs. 1. The Secretary Home Department Government of Tamil Nadu St. Fort George Chennai – 9. 2. The Deputy Superintendent of Police Head Quarters CBCID Chennai. ... Respondents Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus as stated therein. For Petitioner : Mr. N. Natarajan, Senior Counsel for Mr. N.R. Elango For Respondents : Mr. A.L. Somayaji Additional Advocate General Mr. N.C. Manishankar, Special Public Prosecutor https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T P.K. MISRA, J A preface is required to indicate the circumstances regarding the delay in delivery of the judgment. A few days after the matter was heard and judgment was reserved during the month of December, 2004, one of us, namely, Ashok Kumar, J. was required to hold Court at Madurai Bench of Madras High Court during January and February. Even though a draft judgment was prepared by my brother Ashok Kumar, J, there was no occasion to discuss the matter at any time. By the time the learned Judge completed his stint at Madurai, I had to attend the Court at Madurai for two months, i.e., till the end of April. In the meantime, the Special Public Prosecutor had been requested to furnish details of the cases which had been indicated in the counter affidavit. Subsequently, the Special Public Prosecutor furnished such details in the shape of a booklet. Then summer vacation intervened from 1st May to June 13th of 2005. Soon after re-opening, one of us, namely, Ashok Kumar, J had to undergo treatment for 2 to 3 weeks. In view of such unforeseen developments, my brother Justice Ashok Kumar, J could not finalise the draft and ultimately I had to redraft and finalise the judgment. 2. This writ petition has been filed for quashing the G.O.Ms.No.1262 Home (Pol VII), dated 24.12.2002 notifying the entire State of Tamil Nadu as the notified area for the purpose of Section 4(a) of the Prevention of Terrorism Act, 2002 (hereinafter referred to as “POTA” in short). 3. The impugned G.O., is to the following effect:- HOME DEPARTMENT SPECIFIED THE NOTIFIED AREA UNDER PREVENTION OF TERRORISM ACT. (G.O.Ms.No.1262, Home (Pol.VII), 24th December 2002) No.II(1)/HO/76(a)/2002/ Under Explanation to section 4 of the Prevention of Terrorism Act, 2002 (Central Act 15 of 2002), the Governor of Tamil Nadu hereby specifies the whole of https://hcservices.ecourts.gov.in/hcservices/ the State of Tamil Nadu as “notified area” for the purpose of section 4 of the said Act. 4. Bereft of all necessary details, the relevant averments made in the writ petition are to the following effect :- The petitioner was arrested on 11.4.2003 at Chennai in connection with Cr.No.414/2001, on the file of the Inspector of Police, Sathyamangalam Police Station, Erode, for the alleged involvement on the offence under Section 302 r/w.109, 176, 202 and 201 r/w 302 IPC. When the petitioner was taken to CBCID Head Quarters at Chennai and a search was made, it was alleged that he was found with a bag containing unauthorised country made arm and ammunition and pamphlet. A case was registered under Section 124-A IPC and 25(1B)(a) of the Arms Act in Cr.No.1 of 2003 on the file of the Deputy Superintendent of Police, CBCID Head Quarters, Chennai. Later the case was transferred to the Deputy Superintendent of Police, CBCID, Coimbatore, for investigation. On 16.4.2003, Section 4(a) of the POTA was added and he was produced before the Special Court for POTA on 21.4.2003 and thereafter he was remanded to judicial custody. Even though in the writ petition several allegations have been made that the petitioner was falsely implicated because of the malafide attitude of the present Chief Minister and the police officials, it is not necessary to go into such allegations as at the time of hearing, the learned counsel for the petitioner has confined his challenge to the notification alone. 5. The main ground for challenge to the notification is to the effect that such a notification has been issued by the State Government without application of mind and without following the law declared by the Supreme Court in Kartar Singh’s case (1994 SCC (Cri) 899) and Sanjay Dutt’s case (1994 SCC (Cri) 433). It has been contended that the power of the State Government to notify any area as a notified area for the purpose of Section 4(a) of POTA must be based on the subjective satisfaction regarding the proneness of such area to terrorist and disruptive activities and without being satisfied about the factual basis, the entire State has been declared as the notified area without recording any satisfaction regarding the requirements. It has been stated that the State Government’s power to notify an area must have relation to curbing terrorist and disruptive activities in the notified area as that is the intention of the Legislature and the declaration of the entire State as notified area without being satisfied about the proneness of the entire State to terrorist activities, amounts to non-application of mind. https://hcservices.ecourts.gov.in/hcservices/ 6. A counter affidavit sworn to by the Secretary of the Home Department has been filed on behalf of the State Government. In the counter affidavit, objection to the maintainability of the writ petition has been raised on several counts. It is not necessary to notice in detail such objection, as such objection is considered at a later point in the present judgment. The grounds relating to validity of the notification as raised by the petitioners have been refuted and it has been asserted that the notification has been issued on consideration of the relevant circumstances. In the counter affidavit it has been indicated that there are several terrorism organisations like LTTE, TNLA, TNRT and Al-Umma, which are active in various parts of Tamil Nadu and a list of 54 cases involving such organisations has been furnished in the counter affidavit and it has been stated that such list is illustrative and not exhaustive and the activities of these organisations spread all over the Tamil Nadu. It has been further indicated that after careful examination of the materials available, the State Government has arrived at a conclusion that it was necessary to notify the whole of Tamil Nadu as the “notified area”. In the counter it was also indicated that the following terrorist organisations, which have been declared as terrorist organisations, are active in Tamil Nadu :- i) Liberation Tigers of Tamil Eelam (LTTE) (Sl.No.21 to the Schedule) ii) Communist Party of India (Marxist-Leninist) People's War (Sl.No.24) iii) Maoist Communist Centre (MCC) (Sl.No.25) iv) Tamil Nadu Liberation Army (TNLA) (Sl.No.30) v) Tamil National Retrieval Troops (TNRT) (Sl.No.31) It has been further indicated that the following organisations, namely, Tamil Nadu Liberation Army, Tamil National Retrieval Troops, Tamilar Viduthalai Iyakkam, Al- Umma and All India Jihad Committee have been banned by the State Government under the Criminal Law Amendment Act, 1908. It has been further indicated that only with a view to curb the terrorist activities in the State of Tamil Nadu, the notification was issued by keeping in view the principles declared in Kartar Singh’s case. It is further indicated that intelligence reports were available to show that there are influx and availability within the State of “certain arms and https://hcservices.ecourts.gov.in/hcservices/ ammunitions, which facilitate commission of terrorist activities. Hence, with a view to curb such activities and to maintain peace in the State, the whole of Tamil Nadu has been described as notified area for the purpose of Explanation to Section 4 of the said Act. 7. A preliminary contention has been raised by the respondents that the question raised in the present Writ Petition has been the subject matter of earlier proceedings and therefore, the matter should not be considered afresh. It has been stated that the brother of the petitioner had filed a Habeas Corpus Petition No.1269 of 2003. In the said Habeas Corpus Petition, the petitioner filed two Habeas Corpus Miscellaneous Petitions viz., 130 and 131 of 2003 to implead the Home Secretary and to raise additional ground questioning the action of the State Government declaring the whole Tamil Nadu as notified area. A Counter Affidavit was filed by the State Government explaining the position. 8. The High Court disposed of the Habeas Corpus Petition by directing release of the petitioner on the ground that there was violation of Article 22(1) of the Constitution of India. Against the order of the High Court, the State Government had preferred Special Leave Petitions viz., No. 5668 and 5669 of 2003. The said matters are still pending before the Supreme Court. In the aforesaid background, it is contended that when similar matters are pending before the Supreme Court, the petitioner cannot be permitted to agitate the very same subject in the High Court. 9. We are afraid the contention of the State Government cannot be upheld. Nothing has been indicated in the order passed by the High Court in Habeas Corpus Petition No.1269 of 2003 either upholding or nullifying the notification. It is no doubt true that the State Government has challenged the order of release before the Supreme Court. However, the matter has not been decided by the High Court in HCP No.1269 of 2003 in one way or the other. The mere fact that Special Leave Petitions filed by the State Government against the order passed in Habeas Corpus Petition is pending before the Supreme Court cannot be construed as a ground to negative the contention now raised. 10. The respondents have also indicated that apart from the Miscellaneous Petitions filed by the brother, the petitioner had filed a separate Writ Petition viz., W.P.No.33291 of 2004 seeking for a declaration that the Government Order NO.1262 Home (Pol.VII) dated 24.12.2002 was ultra vires and unconstitutional. However, such Writ Petition was dismissed as https://hcservices.ecourts.gov.in/hcservices/ withdrawn at the stage of admission. It is contended by the respondents that in the absence of any leave to the petitioner to file any other Writ Petition on the same relief, the filing of the present Writ Petition is a case of abuse of process of this Court and is not maintainable. 11. The order passed in Writ Petition No.33291 is to the following effect: “ Mr.Shanmughasundaram, learned senior counsel appearing for the writ petitioner, represents that this writ petition has been moved only to avoid technical objections. According to the learned counsel, the very contention has already been raised in HCP No.1269 of 2003 as an additional ground. Therefore, the learned senior counsel has advised to withdraw the second writ petition. The counsel on record has made an endorsement. 2. Recording the same, the above writ petition is dismissed as not pressed, while making it clear that the point already raised could always be urged by the petitioner in HCP 1269 of 2003. Consequently, W.P.M.P. No.40285 of 2003 is also dismissed." 12. It is obvious that the Writ Petition was dismissed as withdrawn on the footing that in the HCP No.1269 of 2003, the very same question had been raised as additional ground. The withdrawal of the Writ Petition No.33291 of 2003 under those circumstances cannot be considered as a bar for filing of a subsequent Writ Petition, particularly, when the question was raised in the HCP No.1269 of 2003, the pendency of which was indicated as the reason for withdrawal of the writ petition. 13. The next objection of the State Government relating to maintainability of the present Writ Petition is based on circumstances which transpired in the Supreme Court. The petitioner had filed Writ Petition (CRL) NO.56 of 2003 challenging the validity of the provisions containing Prevention of Terrorism Act 2002 (Central Act 15 of 2002). In the said Writ Petition, the petitioner had filed Crl. M.P.No.1435 of 2004 on 3.2.2004 challenging the very same notification 1262 dated 24.12.2004. The Writ Petition filed by the petitioner was taken up along with a batch of other Writ Petitions filed before the Supreme Court challenging the validity of the Act and the Supreme Court upheld the validity of the Act by Judgment dated 16.12.2003 as per the decision reported in 2004 (9) SCC 580. It is therefore, contended that the petitioner cannot be permitted https://hcservices.ecourts.gov.in/hcservices/ to challenge the notification at this stage. The answer to the above technical objection raised by the State Government is contained in the Order passed by the Supreme Court in W.P.(CRL) No.56 of 2003. In the said order, the Supreme Court while observing the issue relating to the validity of the Act had already been decided in the Judgment reported in 2004 (9) SCC 580 went on to observe as follows: "On 24.12.2002, G.O.Ms.No.1262 Home (Pol.VII) was issued by the State of Tamil Nadu whereby the State Government specified the whole of the State of Tamil Nadu as notified area for the purpose of Section 4 of the said Act. Although this notification is dated 24.12.2002, challenge to the constitutional validity of this notification independently of the validity of the Act itself, was not raised in the petition. It is only after the delivery of the Judgment dated 16th December, 2003 an application seeking amendment in the writ petition has been filed on 3.2.2004 wherein the constitutional validity of the notification dated 24.12.2002 is sought to be put in issue. The constitutional validity of a notification issued under the Act is independent of the issue as to the constitutional validity of the Act itself. So far as the principal reliefs prayed for in the writ petition (reproduced hereinabove) are concerned, they do not survive for adjudication on merits in view of the decision of this Court dated 16th December, 2003 in Writ Petition (Civil) No. 389/2002 (People's Union for Civil Liberties & Anr. vs. Union of India) reported as 2004 (9) SCC 580. The petition, therefore, does not survive for adjudication. However, now by way of amendment in the main petition, the petitioner seeks to put in issue the constitutional validity of a State notification issued under the Central legislation. That remedy is available to the petitioner by filing an independent petition under Article 226 of the Constitution before the High Court. The prayer for amendment is refused, but reserving liberty to the petitioner to raise the same issue by filing a petition before the High court if so advised. https://hcservices.ecourts.gov.in/hcservices/ In so far as the present writ petition is concerned, the same be treated as disposed of in view of the issue arising for decision being covered by the judgment of this Court dated 16th December, 2003 referred to hereinabove. Though the petition stands disposed of, the interim order dated 16.6.2003 passed by this Court shall continue to remain in operation for a period of six weeks from today." 14. From the aforesaid order, it is also clear that even though, a specific question now raised was sought to be raised by the petitioner by way of an amendment, the Supreme Court specifically observed that the remedy is available to the petitioner by filing an independent Writ Petition under Article 226 of the Constitution of India before the High Court and the Supreme Court granted liberty to the petitioner to raise the issue by filing Writ Petition in the High Court. In view of the above, the contention raised by the respondents that the present Writ Petition challenging the validity of the notification is not maintainable in the eye of law cannot be accepted. 15. Before proceeding to consider the submissions made by the counsel for the petitioner and the counsel for the respondents regarding the validity of the notification, it is necessary to notice in brief the scheme of POTA and the relevant provisions, and the link between such provisions and the similar provisions contained in TADA, which was admittedly similar to POTA in several respects. 16. Under Section 1, the Act extends to whole of India. Under Section 1(6), the Act is deemed to have come into force on the 24th day of October, 2001 and shall remain in force for a period of three years from the date of its commencement. Chapter II of the Act deals with the punishment for, and measures for dealing with, terrorist activities. Sections 3,4 and 5 provide for punishment in respect of different offences. Section 3(1) describes what is a terrorist act in these terms Sections :- “3. Punishment for terrorist acts.- (1) Whoever,- (a) with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people does not any act or thing by using bombs, dynamite or other https://hcservices.ecourts.gov.in/hcservices/ explosive substances or inflammable substances or firearms 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 or by any other means whatsoever, in such a manner as to cause, or 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 or services essential to the life of the community or causes damage or destruction of any property or equipment used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies, 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; (b) is or continues to be a member of an association declared unlawful under the Unlawful Activities (Prevention) Act, 1967 (37 of 1967), or voluntarily does an act aiding or promoting in any manner the objects of such association and in either case is in possession of any unlicensed firearms, ammunition, explosive or other instrument or substance capable of causing mass destruction and commits any act resulting in loss of human life or grievous injury to any person or cause significant damage to any property, commits a terrorist act. Explanation.- For the purposes of this sub- section, “a terrorist act” shall include the act of raising funds intended for the purpose of terrorism.” 3(2) provide for punishment in respect of a person who commits a terrorist act. Similarly Section 3(3) provides for punishment in respect of a person who 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. Section 3(4) provides for punishment to a person who voluntarily harbours or conceals, or attempts to harbour or conceal, any person knowing that such person is a terrorist. Section 3(5) provides for punishment to any person who is a member of a terrorist gang or a terrorist organisation, which is involved in terrorist acts. Section 3(6) provides for punishment to any person whoever knowingly holds any property derived or obtained from commission of any terrorist act or has been acquired through the terrorist funds. Section 3(7) https://hcservices.ecourts.gov.in/hcservices/ provides punishment for a person who threatens any person who is a witness or any other person in whom such witness may be interested, with violence, or wrongfully restrains or confines the witness or does any other unlawful act with the said intent. Since the validity of notification issued under Section 4 has been challenged, it is appropriate to extract such provision in extenso :- “4. Possession of certain unauthorised arms, etc.- Where any person is in unauthorised possession of any- (a) arms or ammunition specified in columns (2) and (3) of Category I or Category III (a) of Schedule I to the Arms Rules, 1962, in a notified area, (b) bombs, dynamite or hazardous explosive substances or other lethal weapons capable of mass destruction or biological or chemical substances of warfare in any area, whether notified or not, he shall be guilty of terrorist act notwithstanding anything contained in any other law for the time being in force, and be punishable with imprisonment for a term which may extend to imprisonment for life or with fine which may extend to rupees ten lakh or with both. Explanation.- In this section, “notified area” means such area as the State Government may, by notification in the Official Gazette, specify.” It is thus apparent that section 4 consists of two parts. Section 4(a) relate to possession of arms or ammunition specified in columns (2) and (3) of Category I or Category III (a) of Schedule 1 to the Arms Rules, 1962, in a notified area. Section 4(b) relates to unauthorised possession of any bombs, dynamite or hazardous explosive substances or other lethal weapons capable of mass destruction or biological or chemical substances of warfare in any area, whether notified or not. Section 5 provides for enhanced penalties to any person who with intent to aid any terrorist contravenes any provision of, or any rule made under the Explosive Act, 1884, the Explosive Substances Act, 1908 the Inflammable Substances Act, 1952, or the Arms Act,1959. A perusal of these provisions make it clear that except Section 4(a), all other penal provisions are applicable as such https://hcservices.ecourts.gov.in/hcservices/ to the entire India. It is only in respect of offences punishable under Section 4(a), the unauthorised possession of arms or ammunition specified in columns (2) and (3) of Category I or Category III(a) of Schedule 1 to the Arms Rules, 1962, become punishable, if such unauthorised possession is in a notified area. As per the explanation, “notified area” means such area as the State Government may, by notification in the Official Gazette, specify. 17. At this stage it is appropriate to notice similar provision contained in the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as TADA Act). Section 5 of the TADA Act is extracted hereunder :- “5. Possession of certain unauthorised arms, etc. in specified areas.- Where any person is in possession of any arms and ammunition specified in columns 2 and 3 of Category I or Category III(a) of Schedule I to the Arms Rules, 1962, no bombs, dynamite or other explosive substances unauthorisedly in a notified area, he shall, notwithstanding anything contained in any other law for the time being in force, 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 2(1)(f) of TADA Act provides :- “notified area” means such area as the State Government may, by notification in the Official Gazette, specify; The provisions contained in Section 4(a) and 4(b) are similar to the provisions contained in Section 5 of the TADA Act, 1987, save and except an important departure. So far as TADA Act was concerned, unauthorised possession of arms or ammunition or particular category of weapons was an offence under TADA Act only in the notified area, whereas, under the present Act, possession of inherently more dangerous weapons like bombs, dynamite or hazardous explosive substances or other lethal weapons capable of mass destruction or biological or chemical substances of warfare, are punishable as such, whether the place where the person is in possession is a notified area or not. In other words, in respect of the more dangerous weapons, the Act itself has made it punishable. Only if a notification is issued, possession of arms or ammunition specified in Columns (2) and (3) of Category I or Category III (a) of Schedule I to the Arms Rules, 1962, would become punishable under Prevention of Terrorism Act, 2002. https://hcservices.ecourts.gov.in/hcservices/ 18. The arms and ammunition as included in Section 4 (a) are relatable to the relevant provisions in Schedule I under Rule 3 of Arms Rules, 1962. The relevant portion are extracted hereunder :- SCHEDULE I Category Arms Ammunition 1(a)