Embargo for grant of bail to the detenu within one year of detention not absolute.

V.S. SIRPURKAR, J.

This common order shall dispose of Criminal Appeal Nos.1606, 1607, 1639, 1640, 1779 and 1780 of 2002. All these appeals are against the orders passed by the Special Court under the Prevention of Terrorism Act, Poonamallee, Chennai. Vide all these orders, the bail applications filed by the appellants under Sec.49(7) of the Prevention of Terrorism Act, 2002 (in short ‘POTA’) read with Sec.439 of the Code of Criminal Procedure, 1973 (in short ‘the Code’) were rejected. All the appellants were arrested for having committed offences under Sec.21 of POTA. To be precise, accused Paza Nedumaran is said to have committed offences under Sec.21(1)(a), (2) and (3), punishable under Sec.21(4) of POTA as also under Sec.10 of the Unlawful Activities (Prevention) Act, 1967. So also, the other accused persons, viz. Suba Veerapandian, Pavanan and Dr. Thayappan are said to have committed under Sec.21(2) and (3), punishable under Sec.21(4) of POTA as also under Sec.10 of the Unlawful Activities (Prevention) Act, 1967. Accused Paranthaman is said to have committed the offence under Sec.21(1)(a) and 21(3), punishable under Sec.21(4) of POTA read with Sec.13(1) of the Unlawful Activities (Prevention) Act, 1967. The following table will show the Crime Numbers, concerned Police Station, Bail Petition Numbers as also the Criminal Appeal Numbers emanating from the orders passed on the bail applications:

All these appeals came to be filed in the second week of November, 2002 and some in December, 2002. It is an admitted position that charge sheets were not filed against any of these accused persons when they had filed the bail applications or even when their bail applications were rejected by the Special Court as also when the present appeals were filed and admitted.

2. When these appeals were taken up for final hearing, learned Additional Solicitor General, Shri Altaf Ahamed, pointed out that the charge sheets were filed against all the accused persons in their respective cases excepting the accused Paranthaman. A statement was also made that the charge sheet against Paranthaman would also be filed shortly in the concerned court. In view of that, learned senior counsel appearing on behalf of the accused, viz. M/s. N. Natarajan and K. Chandru did not address us on the merits but confined themselves to a common point of law regarding the tenability of the bail applications made within one year of the arrest for the offences punishable under POTA as the Special Court has rejected all the bail applications on the common ground that bail cannot be granted to an accused within one year of his detention for the offences punishable under POTA. Learned counsel expressed that there is no authoritative pronouncements on this question and since the question had fallen for consideration directly in these appeals, it was necessary that the question is decided. Learned counsel also expressed an apprehension that if the second bail application is made again on the basis of the material found from the charge sheet, since the Special Court had rejected the earlier bail applications on the ground of limitations, it would be expedient to have a finding on the issue of limitation. Seeing all the orders under consideration, it is obvious that apart from the merits, all the bail applications have been rejected on the ground of interpretation of Sec.49(6) and (7) of POTA and a view has been taken that a bail application is not possible to be made or considered if it is made within one year of the detention.

3. It is the contention of the learned counsel for the appellants that the learned Special Judge has taken a completely erroneous view and has erred in rejecting the bail applications on the ground of limitation. They point out that it is not the import of subsections (6) and (7) of Sec.49 of POTA to prevent any bail application from being made or considered and/or the order being passed upon the bail application granting the bail. They also conte