JAYARAMA CHOUTA, J. - (1.) IN these two petitions for habeas corpus, the petitioner is one and the same person, the points involved in both the matters are similar and hence we dispose of these cases by this single order.
(2.) IN Habeas Corpus Petition No. 1328 of 1995, the prayer of the petitioner is to issue a writ of habeas corpus, directing the respondent. The INspector of Police, Q Branch, Trichy, Trichy District, to produce the detenu-Periasamy and Senthilkumar before this Court and set them at liberty and pass such further or other orders as this Court may deem fit and proper. In support of this petition, the petitioner one Thangamani, brother of detenu-Periasamy and friend of Senthilkumar has sworn to an affidavit, wherein he has stated that the two detenus have been falsely implicated with an offence under Secs.3(1), 4 and 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as "TADA ACT" for short). Periasamy was arrested on 6.1.1994 and Senthilkumar on 17.2.1993 and both were remanded to custody from time to time by Designated Court at Coimbatore, The TADA ACT expired on 23.S.1995 and thereafter the case has been transferred to newly constituted Designated Court at Trichy on 29.6.1995 and the said transfer was mala fide, illegal and without jurisdiction. He has further sworn that the respondent has to review the case as directed by the Supreme Court in Kortar Singh's (1994)2 L.W. (Crl) 422 and no review has taken place. His next grievance was that constituting a court under dead law is malice in law and the detention in the hands of Designated Court at Trichy is illegal and violation of Art.21 of the Constitution of India. On these grounds, the petitioner has prayed to issue a writ of habeas carpus directing the respondent to produce the detenu Periasamy and Senthilkumar before the court and set them at liberty. On behalf of the respondent, one K.Pattabiraman, Inspector of Police, Q Branch, C.I.D. Trichy, has filed a counter affidavit, in which he has sworn that the habeas corpus petition is not maintainable either in law or on the basis of the averments made and the contentions raised in the affidavit filed in support thereof, He has submitted that C.C. No. 18 of 1994 was pending before the Designated Judge at Coimbatore and subsequently after the constitution of the Designated Court at Trichy pursuant to the provisions of Sec.9(1) of the TADA Act, the abovesaid case was transferred to the Trichy court on 26.7.1995 and the case is pending in C.C. No.45 of 1995, before the Designated Judge, Trichy, He has denied the allegation that the transfer of the case from the Designated Judge at Coimbatore to the Designated Judge at Trichy was mala fide and it was necessitated under bona fide circumstances. He has pointed out that as on 12.2.1993, five Designated Court had been constituted and each one of them was allotted certain cases for trial. Except the Designated Court No.1, Madras, which was exclusively allotted for the trial of Rajiv Gandhi Assassination case, the rest of the four Designated Courts heard before them a number of cases for trial. On 17.2.1995, a communication was addressed by the Director General of Police, Tamil Nadu, to the Secretary to Government, Home Department, Madras-9, appraising the necessity for the constitution of the newly Designated Court at Trichy and also reallotting the cases which were pending before the five Designated Courts as on 17.2.1995 and the said Designated Court was constituted in accordance with Sec.9(1) of the Act and the cases from the Districts of Trichy, Pudukkottai, Thanjavur and Nagapattinam Quaid-E-Milleth District were allotted to the said court for disposal. He has further submitted that in respect of the case relating to Ammapet P.S.Cr. No:429 of 1994, Mannargudi P.S.Cr. No.8924 of 1994, Koottar P.S. Cr.No. 1151 of 1994, Burgur P.S.Cr. Nos. 14 of 1993; 16 of 1993; 18 of 1993; and 20 of 1993 and Eriyur P.S.Cr. No. 190 of 1993 were pending in the Designated Court No.II, Madras, the examination of witnesses had not yet commenced as on 17.2.1995 and these cases were pending with the Designated Court No. II, Madras. Inasmuch as these cases involved the examination of the witnesses residing in far of destinations like, Thanjavur, Coimbatore, Periyar etc., and considerable hardship would be caused to these witnesses to go over to Madras, they were allotted to the Designated Court at Trichy as to avoid such hardship to the witnesses. The affidavit further reads that the present case in C.C. No.45 of 1995 which was previously pending as C.C. No. 18 of 1994 before the Designated Court at Coimbatore had been transferred to Trichy from the point of view of jurisdiction. The transfer of case was not mala fide and it was well within the jurisdiction of the State Government to constitute the Designated Court at Trichy even after the lapse of the present TADA Act on 22.5.1995 and this is especially so in view of the saving clause contained in Sec. 1 (4) of the said enactment. He has also submitted that there is no violation of Art.22 of the Constitution of India and pointed out that H.C.P. Nos.1073 of 1994 and 223 of 1995 already filed on behalf of these accused have been dismissed by the High Court. On these grounds, he has asked this Court to dismiss the habeas corpus petition as devoid of merits. The prayer in H.C.P. No. 1329 of 1995 is for production of detenu Kamaraj before the court and set him at liberty and pass such further or other orders as this Court may deem fit and proper. In support of the said petition, petitioner-Thangamani, friend of detenu- Kamaraj, has sworn to an affidavit, wherein, he has stated that his friend Kamaraj was arrested on 10.8.1994 and produced before the court on 25.8.1994 and was remanded from time to time and prosecuted under Secs. 3, 4 and 5 of TADA Act, originally before the II Additional Designated Court, Madras, and the same was transferred after 23.5.1995 to Designated Court, Trichy, the newly constituted court, on 19.6.1995 and the said court has no jurisdiction to remand the accused to custody. Hence, the detention is illegal and violates Art.21 of the Constitution of India, as the remand passed by the Designated Court, Trichy, is illegal and void. On behalf of the respondent, one M.Shanmugham, Deputy Superintendent of Police, "Q" Branch, C.I.D. Trichy, has sworn to a counter-affidavit, in which he has denied the allegations made in the affidavit by the petitioner and submitted that Kamaraj was arrested on 24.8.1994 and was remanded to judicial custody by the Judicial Magistrate Court at Mannargudi, C.C. No.1 of 1995 was pending before the Designated Judge-II, Madras and subsequently after the constitution of the Designated Court at Trichy pursuant to the provisions of Sec.9(1) of the TADA Act, the abovesaid case was transferred to the Designated Court, Trichy, on 21.7.1995 and the said case is pending as C.C. Nos. 41, 42 of 1995 before that court. The other averments in the counter-affidavit are similar to that found in the counter-affidavit filed in the other habeas corpus petition. Under these circumstances, the respondent has prayed this Court to dismiss the petition as devoid of merits.
(3.) WE heard the learned advocate Mr. R. Sankarasubbu for the petitioner and Mr. I. Subramaniam, learned Additional Public Prosecutor on behalf of the respondent and perused the records. The main contention raised by the learned advocate for the petitioner was that the cases could not have been transferred to the newly constituted Designated Court which has been constituted after the lapse of TADA Act i.e. 23.5.1995 and since the trial could not proceed before the said Designated Court, the detenus are entitled to be set at liberty forthwith. According to the learned counsel once the Act ceases to be in force, neither the State Government nor the Central Government has got power to constitute the Designated Court, to substantiate his contention, he has placed reliance on the following decisions: (i) Lachmandas Kedarnath Ahuja v. State of Bombay, 1952 M.W.N. (Crl.) 200. (ii) Hyderabad State v. Chandar, A.I.R. 1950 Hyd. 711. (iii) A.R. Antulay v. R.S. Nayak, A.I.R. 1988 S.C. 531: J.T. (1988)2 S.C. 325: (1988)2 S.C.C. 602: 1988 S.C.C. (Crl.) 372. (iv) Sham Sundar v. Rami Das, A.I.R. 1951 Punj. 52. (v) Krishnan v. State of Madras, (1951)2 M.L.J. 105: A.I.R. 1951 S.C. 301: 1951 S.C.J. 453:1951 S.C.R. 621:52 Crl.L.J. 1103. (vi) State of Uttar Pradesh v. Seth Jagamander Das. A.I.R. 1954 S.C. 683: 55 Crl.L.J. 1736. Now let us consider the above decisions and find out in what way they are helpful to the petitioner. The first decision is reported in Lachmandas Kedarnath Ahuja v. State of Bombay, 1952 M.W.N. (Crl.) 200 and the learned Advocate placed reliance on the following passage: "The continuation of a trial commenced before the commencement of the Constitution, under the discriminatory procedure after the Constitution came into force operates to the prejudice of the accused and as such offends against their newly acquired fundamental right of equal protection guaranteed by Art. 14. The Constitution has no retrospective operation to invalidate that part of the proceedings that has already been gone through but the Constitution does not permit the special procedure to stand in the way of the exercise or enjoyment of post constitutional rights and must therefore strike down the discriminatory procedure if it is sought to be adopted after the Constitution came into operation." In the said decision, the Supreme Court was dealing with the continuation of a trial commenced before the commencement of the Constitution, wherein the court has held that the Constitution has no retrospective operation and it does not permit the special procedure to stand in the way of the exercise or enjoyment of post constitutional rights and hence it has struck down the discriminatory procedure. Present cases are not such type of cases and the said decision has no application to decide the present cases. The second decision, on which the learned Advocate has placed reliance is reported in Hyderabad State v. Chandar, A.I.R. 1950 Hyd. 711 and invited our attention to the following passage: "By Sec.2 of India and Hyderabad Exchanges of Enclaves Order, 1950, the Hyderabad enclaves in Bombay were included and under Sec.2(e) of the Order read with Art.2(a) of the Agreement between the Governor-General of India and the Nizam of Hyderabad dated 23.1.1950. The transfer of the enclaves became effective on 25.1.1950, i.e., before the Constitution of India came into force. Arts.225 and 330 of the Constitution of India refer to transfers after the Constitution came into force and are, therefore, inapplicable to such a case. In the absence of clear intention to the contrary the transfer of the territory did not effect the vested jurisdiction of the Magistrate in the territory transferred in a case pending before him, at the time of the transfer, and he continues to exercise the same even after the transfer of the territory. No such contrary intention appears either from Sec.7 or its proviso (read with Sec.6, General Clauses Act) or any other provision of the order." We are unable to understand how this decision is helpful to the petitioner in these petitions. It is well known that the provisions of Sec.6 of the General Clauses Act are not applicable to temporary enactments. TADA Act is a temporary Act and hence Sec.6 of the General Clauses Act is not applicable to the said Act. In view of Sec. 1(4) of the said Act, this decision is not applicable to the cases in hand. ;