Notifying entire area of Tamil Nadu as prone to terrorism shows non-application of mind.

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 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