The court emphasized the admissibility of police custody after the charge sheet filing and the determination of identity during trial.

P.N. Prakash, J.

1. This is an appeal under Section 34 of the Prevention of Terrorism Act, 2002 (in short 'POTA'), against the order dated 29.10.2013 in Crl.M.P.No.216 of 2013 in Spl.C.C.No.1 of 2009, passed by the Special Court for POTA Cases, Poonamallee, Chennai, whereby bail was denied to the appellant / accused herein.

2. It is the specific case of the appellant that she is one S.Ragini, wife of Duraisingavelu and not Bharathi, who has been arrayed as Accused No.32 in Spl.C.C.No.1 of 2009 (originally Spl.C.C.No.5 of 2003 and later, split up as against Bharathi, who was absconding and was re-numbered as Spl.C.C.No.1 of 2009).

3. Mr. R. Sankarasubbu, learned counsel appearing for the appellant, would contend that the husband of the appellant, Duraisingavelu, was earlier arrested by the police under POTA and he along with other accused were granted bail by this Court on various dates and therefore, continued incarceration of this appellant is violative of Article 21 of the Constitution of India. Learned counsel also submitted that the case of the appellant will not come under Section 3(1)(b) of the POTA, because membership simpliciter without anything more, cannot attract the penal provision under the Act, in the light of the fundamental rights to form an association guaranteed by the Constitution of India. He also placed on the lines, several judgments of the Hon'ble Apex Court in support of his contention.

4. Per contra, Mr. Shanmugavelayutham, learned Public Prosecutor appearing on behalf of the State, filed a detailed objection statement and additional counter setting out the facts leading to the arrest of the appellant and strongly opposed the grant of bail to the appellant, on the ground that she has been actively involved in a proscribed organisation and further, she has been absconding since 2002 and was arrested only on 25.06.2013, in connection with Dharmapuri Town police station Crime No.383 of 2013.

5. For better appreciation of the facts in this case, we are extracting the observations recorded by the learned Special Judge in paragraph 11 of the impugned order, which read thus:

"11. The cursory perusal of the case records reveals as follows:

(i) On 24.11.2002 based on a secret information received by the Naxalite Special Duty Wing, Dharmapuri, a search was conducted in the house of Guruswamy S/o.Raj residing at Anna Nagar, Uthangarai, along with Uthangarai Police. At that time, in that house, Countryg un, Airgun, Gelatine, Safety fuse and band books relating to RYL and medicines were found. At that time, Guruswamy's son Prabakaran and Martin Tamil Selvan of Madurai were in that house. When they were asked about those properties, theys aid that in the mango grove of one Murugesan S/o.Duraisamy of Salaijogipatti village near Samalpatti, RYL, RSU, TNPK, UUM outfits have proposed to associate together to fight against the Government and for that they are intended to take weapon training and to take for that purpose they have kept there the above said properties. Hence, the above persons were arrested and a case in Uthangarai P.S. Crime No.1004/2002 u/s 120(B) r/w 9(B) (1)(b) I.E. Act and Section 25(1)(a) of I.A. Act and Sections 4 and 5 of Explosive Substance Act was registered and investigated.

(ii) When police searched at the mango grove of the said Murugesan, having received the information that Martin Tamilselvan and Prabakaran have been arrested, about 25 naxalites who were there had escaped in three teams taking their belongings. Upon information received by police, that one of the above teams is going near Chinna Kanagampatti village, at 1.45 p.m. the above naxalites were rounded by the police. At that time there was exchange of fire between the naxalites and the police and in that, Siva @ Parthiban died. Police men also got wounded. One Kumar @ Palanisamy, Raja, S/o.Mariappan were arrested at that spot itself. Suresh, Durai, Ramachandran, Navin Prasad, Palani @ Manickam, Madhyian were absconded. Country gun