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PETITIONER: ABDUL AZIZ

       Vs.

RESPONDENT: STATE OF WEST BENGAL & ANR.

DATE OF JUDGMENT21/07/1995

BENCH: RAY, G.N. (J) BENCH: RAY, G.N. (J) MAJMUDAR S.B. (J)

CITATION:  1995 SCC  (6)  47        1995 SCALE  (5)169

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      In  this   application  under   Article   32   of   the Constitution the  constitutional validity  of the provisions of the  Terrorists and  Disruptive  Activities  (Prevention) Act, 1987  (hereinafter to  be referred to as the TADA Act), particularly the  provisions of Section 1 (4) of the Act are sought to  be challenged  mainly on  the ground that the Act having expired the provisions for continuing the trial under the said  Act is illegal and it has been contended that this provision violates Articles 14 and 21 of the Constitution.      Mr. Ramaswamy,  learned  Senior  Counsel  appearing  in support of  the  application,  has  submitted  that  in  the Constitution Bench  decision rendered  in  Kartar  Singh  V. State of  Punjab (1994  (3)  SCC  569),  the  constitutional validity of  Section 1  (4) has  not been  specifically gone into but consideration of such question has become important because the  trial has  been allowed  to continue even after the lapse  of the  said Act.  In support of his contention a reference has  been made  to the  decision of  this Court in Gopi Chand  V. Delhi Administration (1959 Supp. (2) SCR 87). We may  only indicate  that in  Gopi Chand’s case this Court specifically noted  that in the absence of the saving clause in the  Act the  trial which  may commence  for the offences under the  said Act, would not be held valid thereafter. But in  the  instant  case,  Specific  saving  clause  has  been provided in the Act itself (TADA Act), As such, the decision in Gopi  Chand’s case  does not  apply in  the facts of this case.      We may only indicate here that in the majority decision in Kartar  Singh’s case,  it has  been indicated that if the procedural law  is oppressive  and violates the principle of just and fair trial offending Article 21 of the Constitution and  is   discriminatory  violating   Article  14   of   the Constitution, then  Section 15  of the  TADA Act  is  to  be struck down.  As a  distinction has  been made  in TADA Act, grouping the  terrorists and  disruptionists as  a  separate

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class of  offenders from ordinary criminals under the normal laws and  the classification  of the offences under the TADA Act as  aggravated form  of crimes  distinguishable from the ordinary crimes,  it has  to be  tested and determined as to whether this  distinction and  classification are reasonable and valid  within the  term of  Article  14.  Hence,  it  is assential to  examine the  classification of ‘offenders’ and ‘offences’ so  as to  decide whether Section 15 is violative of  Article  14.  Viewed  from  this  aspect,  the  majority decision has  upheld the  vires of  the said Section. We may also indicate  here that  although Section  1  (4)  was  not specially  taken   into  consideration,  the  TADA  Act  was generally held intra vires in Kartar Singh’s case.      Mr. Ramaswamy  has also  relied on  another decision of this Court in State of West Bengal Vs. Anwar Ali Sarkar (AIR 1952 SC 284) for contending that accused in cases under TADA Act may  be subjected  to a different procedure for trial of their cases  at the  discretion of  the State Government and such  discretionary   power  is   unconstitutional.  We  may indicate here  that in  the instant  case the parliament has prescribed the  procedure for  deciding the cases under TADA Act. Hence,  no discretionary  option is  left to  the State Government to  choose the  procedure for  trial. Hence,  the decision in  the State  of West Bengal Vs. Anwar Ali Sarkar, in our  view, is  not applicable.  Mr.  Ramaswamy  has  also submitted that  in view  of Section  1 (4)  of the Act those offenders who have committed offences prior to the expiry of the Act  will be  treated differently  as compared  to those offenders who  may commit  such acts after the expiry of the Act and  therefore Section  1 (4)  can be  said to have made hostile discrimination  qua such  prior offenders. Even this submission cannot  be supported  in the light of Anwar Ali’s case (supra). In that case, as noted earlier, it was left to the discretion of the executive to pick and choose offenders for the  purpose of  applicability of  warrant procedure  or summons  procedure  for  trial  of  all  similarly  situated accused. In  the present  case,  the  Parliament  itself  by enacting Section  1 (4) has made a clear distinction between the two  classes of offenders - (1) those offenders who have committed offences when the Act was in force and (2) persons who are  not  offenders  under  the  Act  at  all  as  their activities take place after the expiry of the Act. These two classes of  persons cannot  be treated at par. Consequently, no fault  can be found with Section 1 (4) of the Act on that score.      Mr. Ramaswamy  has further  submitted that  the learned Designated Court before whom the trial of the petitioner has commenced, has written an article in a magazine published by the Government  of West  Bengal and it has been submitted by him that  from the  said article it may be inferred that the learned Judge  is entertaining  a biased  mind  against  the petitioner and other persons being tried under the TADA Act. We have  looked into the said article. It does not appear to us that any biased view about the accused in a TADA Act case is discernible  from such article. Such article, it appears, has been  written in  an  objective  way  analysing  various provisions of  the TADA  Act and the purpose of the Act. Mr. Ramaswamy has also submitted that the petitioner had made an allegation before the learned Designated Court by indicating that since  the Police  had provided cars for the use of the Judge and  the family members, he should not hear the matter but such  application has  been rejected  by the  Judge.  It appears to  us that  if for ensuring security of the learned Judge and  the members  of his  family  when  the  Judge  is hearing some  sensitive cases under TADA Act, the police has

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provided for  transport to the Judge and his family members, such supply  of car  per se cannot be held to be illegal and we are not inclined to proceed on the footing that the Judge will be  biased against  the petitioner and will be inclined to oblige the police.      In the  circumstances, we do not find any merit in this petition and the same is dismissed.