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Tamil Nadu order on POTA quashed

K.T. Sangameswaran

Order declaring State a notified area issued in a mechanical manner, says Court

CHENNAI: The Madras High Court on Thursday quashed a December 2002 Tamil Nadu Government order declaring the entire State a notified area for the purpose of Section 4(a) of the Prevention of Terrorism Act.

Allowing a petition by R.R. Gopal alias Nakkheeran Gopal, who was charged in April 2003 under the POTA provision which was added subsequently to the Indian Penal Code and Arms Act provisions, a Division Bench comprising Justice P.K. Misra and Justice S. Ashok Kumar said the notification declaring the entire State as a notified area had been issued in a mechanical manner without considering the relevant facts and figures, and the circumstances, and apparently on the basis of irrelevant considerations.

The notification was required to be issued keeping in view the proneness of the area to terrorism so that possession of weapons contemplated in the Arms Rules could be dealt with. Weapons such as bombs, dynamite, hazardous explosive substances or other lethal weapons capable of mass destruction or biological or chemical substances of warfare were covered under Section 4(b) of POTA for which no notification was required. While considering the question of notifying the entire State, this aspect had been completely lost sight of.

The Bench said following the quashing of the notification, the petitioner could not be prosecuted for the alleged offence under section 4(a) of POTA. However, the quashing would obviously not stand in the way of prosecuting him under any other relevant law.

Mr. Gopal had challenged the notification stating it had been issued without application of mind and without following the law declared by the Supreme Court.

Old cases considered

Justice Misra and Justice Ashok Kumar said a bare perusal of many of the cases among the 54 incidents involving terrorist organisations such as LTTE, TNLA, TNRT and Al-Umma given in the State Government's counter-affidavit, relate to a period of more than 10 to 12 years prior to the issue of the notification.

"Many cases of murder of individuals by weapons, such as aruval, etc., have been considered for the purpose of issuing [the] notification".

Many of the cases relating to illegal possession of explosive substances had been also considered for issuing the notification without application of mind to the fact that possession of such weapons was an offence punishable under section 4(b). The fact that a similar notification was issued under section 5 of TADA notifying the entire "State" more than a decade back could not be an excuse far less a relevant consideration for issuing such notification under section 4(a) of POTA in respect of the entire State without keeping in view the distinction between the two provisions and without assessing the ground realities and the change in circumstance.

The Bench said that in the late eighties and early nineties the Tamil Eelam Movement originating in Sri Lanka was at its peak, but obviously the scenario had changed in December 2002. The other incidents in the wake of the Ayodhya issue in the mid-nineties were on the decline. At any rate, section 4(b) of POTA was very much in the field. Such relevant aspects had not been considered.

The fact, as conceded by the Special Public Prosecutor in the course of hearing, that under section 4(a) of POTA, the one and only case of unauthorised possession of arms was against the petitioner was rather indicative of the fact that the notification had been issued in a mechanical manner without any application of mind, the Bench said.

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