ABDUL AZIZversusSTATE OF WEST BENGAL AND ANR.

                                 ABDULAZIZ                                              A
                                      v
                       STATE OF WEST BENGAL AND ANR.

                                      JULY 21, 1995

                        [G.N. RAY AND S.B. MAJMUDAR, JJ.]                               B

              TelTodst and Dis1Uptive Activities (Prevention) Act, 1987:

               Section 1(4)-Held valid-Classification of accuse~Those commit-
        ting offences p1ior to and after expiry of Act-Held not Unconstitutional-Pro-   C
        cedure presC1ibed under TADA held not disC1iminat01y-Continuance of trial
        after expiry of Act-Held not unconstitutional in view of the saving clause.

              TADA-Bia5"-Designated Judge-Writing Arlicle in State Magazine-
        Providing transp01t by Police to Judge and family for ensuring safety during
        hearing of case-Held bias is not discemible per se.                          D

               In this writ petition is the Constitutional validity of the provisions
        of the Terrorists and Disruptive Activities (Prevention) Act, 1987 par-
        ticularly the provisions of section 1(4) are challenged on the ground that
        (i) the Act having expired the provisions for continuing the trial are          E
        illegal and violative of Articles 14 and 21; (ii) subjecting TADA accused
        to a different procedure of trial at the discretion of authorities is
        unconstitutional; (iii) the classification of offenders i.e. between those
        who committed offences prior to and after expiry of the Act is dis-
        criminatory; (iv) from article written by the Designate Judge in the State      F
        Magazine it was evident that he entertains a biased mind against TADA
        accused; and (v) the Designate Judge was obliged to police because the
        latter had provided cars for use of Judge and his family.
.   r


              Dismissing the petition, this Court
                                                                                        G
              Held : 1. 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 a specific saving clause has been
        provided in the Act itself. [301-D]                                             H
                                            299
    300                    SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.

A         *Gopi Chand v. Delhi Administration, [1959] Supp. 2 SCR 87, distin-
    guished.

           2. In the instant case the Parliament has prescribed the procedure for
    deciding the case under TADA Act. Hence, no discretionary option is left to
    the State Government to choose the procedure for trial. The Parliament
B   itself by enacting Section 1 (4) has been 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
C   found with Section 1(4) of the Act on that score. [302-B, E-F]

          Kmtar Singh v. State of Punjab, [1994] 3 SCC 569, referred to.

         State of West Bengal v.Anwar Ali Sarkar, AIR (1952) SC 284, distin-
    guished.
D
         3. It does not appear that any biased view about the accused in a
    TADA Act case is discernible from the article which has been written in
    an objective way. [302-H]

          4. If for ensuring security of the Judge and the members of his family
E   when the Judge is hearing some sensitive cases under TADA Act, the police
    has. provided for transport to the Judge and his family members, such
    supply of car per se cannot be held to be illegal and one would not be
    inclined to proceed on the footing that the Judge will beJJia~ against the
    petitioner and will be included to obliged the police. [303-B]

F         CRIMINAL ORIGINAL JURISDICTION : Writ Petition (CRL)
    No. 413 of 1995.

          (Under Article 32 of the Constitution of India.)

          G. Ramaswamy, N.R. Choudhury and Somnath Mukherjee, for the
G Petitioners.
          K.T.S. Tulsi, Satis Vig and Rajeev Sharma for the Respondents.

          The following Order of the Court was delivered :

H         In this application under Article 32 of the Constitution the constitu-
                        ABDULAZIZ v. STATE OFW.B.                            301

     tional validity of the provisions of the Terrorists and Disruptive Activities A
     (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 th~ 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.
                                                                                   B
           Mr. Ramaswamy, learned Senior Counsel appearing in support of the
     application, has submitted that in the Constitution Bench decision
     rendered in Kmtar Singh v. State of Punjab, [1994) 3 SCC 569, the constitu-
     tional validity of Section 1(4) has not been specifically gone into but
     consideration of such question has become important because the trial has C
     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 com- D
     mence 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 case
     does not apply in the fact of this case.
                                                                                   E
           We may only indicate here that in the majority decision in Kanar
     Singh' case, it has been indicated that if the procedural law is oppressive
     and violates the principles 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
                                                                                    F
     a separate 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 essential to G
     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 Kanar H
    302                    SUPREME COURT REPORTS [1995) SUPP. 2 S.C.R.
                                                                                       <
A   Singh's case.

           Mr. Ramaswamy has also relied on another decision of this Court in
    State of West Bengal v. 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
B   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 v. Anwar Ali Sarkar, in our view, is not
c   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 differenuy 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 or Anwar
D   Ali' 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 ap-
    plicability of warrant procedure or summons procedure for trial of all
    similarly situated accvsed. In the present case, the Parliament itself by
    enacting Section 1(4) has made a clear distinction between the two classes
E   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
F   activities take place after the expiry of the Act. These two classes of person
    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
G an article in a magazine published by the Government of West Bengal and
    ithas 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
H accused in a TADA Act case is discernible from such article. Such article,
                   ABDULAZIZ v.STATEOFW.B.                             303

it appears, has been written in an objective way analysing various provisions A
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 B
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 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.                         C
      In the circumstances, we do not find any merit in this petition and
the same is dismissed.

T.N.A.                                                 Petition dismissed.