EASUN ALIAS ESWARAN Vs. STATE

JUDGEMENT

(1.) THIS writ petition by accused Nos. 11 and 12 in C. C. No. 9 of 1992 on the file of the Designated Court No. 3, Madras is (i) for a writ of certiorarified mandamus to quash the order dated 6. 1. 1994, (refusing to discharge them under sec. 227, Cr. P. C.) in Crl. M. P. No. 99 of 1993 in the said case against them and other accused and (ii) for quashing the charges framed against the petitioners by the said Designated Court in the said criminal case and to direct the discharge of the petitioners.

(2.) THE material allegations in the affidavit in support of the writ petition are: THE petitioners were arrested on 4. 2. 1991 from Nithiya apartments by the Adayar Law and Order police and a case in Crime No. 42 of 1991 was registered against them. First Information Report is pending in 11th Metropolitan Magistrate's Court , Madras , but charge sheet has not yet been filed. THE petitioners were produced before Court on 7. 2. 1991, but were remanded to police custody till 14. 2. 1991 and subsequently it was extended till 17. 2. 1991. Initially the petitioners were detained in Adayar police station and subsequently in Avadi police station. THE petitioners were then sent to Central Prison on 17. 2. 1991 and preventive detention order under national Security Act was passed against the petitioners and they were detained in Madras prison till 7. 7. 1991 and from 7. 7. 1991, they were detained in Central prison, Salem. THEreafter, the 1st respondent'q'Branch Police c. I. D. had taken them from the Central Prison under police custody and one narayanaswamy Inspector'q'Branch brought them to Madras and they were produced before the Designated Court at Madras on 7. 1. 1992. THEn they were told that they were accused in the'ship case'. A false charge sheet has been filed against them alleging that they are close associates of one Balan, accused in the above said case and that the petitioners had established a dairy farm in the year 1988 at Perumugai and that the 1st petitioner facilitated the acts which would come under Terrorist Act, rendering himself liable under Sec. 3 (3) of Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as'the Act'). THE petitioners were actually charged under Sec. 120 (B), I. P. C. read with Secs. 3 (3), 5 and 6 of the Act and Sec. 5 of the Explosives Substances Act, 1908. THE petitioners filed the above said Criminal M. P. No. 99 of 1993 for discharge on various grounds. But the same was dismissed by the said Designated Court on 6. 1. 1994. Aggrieved by the said order, this writ petition is filed.

(3.) THE reasoning of the Designated Court in passing the impugned order can be gathered from the following observation of the said Court in the impugned order: "no doubt accused 11 and 12 are not crew members of tongnova Ship and only accused 1 to 10 are members of the crew of Tongnova ship. THE learned Public Prosecutor contended that accused 11 and 12 facilitated the commission of Terrorist Act and that accused 11 and 12 rendered necessary facilities to accused No. 2 to go abroad for purchase of arms and ammunitions and therefore accused 11 and 12 have committed the offence under sec. 3 of TADA Act. After the arrest of the 2nd accused confessions statements was recorded on 25. 11. 1991. A perusal of the statement would go to show the accused 11 and 12 were residing together at Madras and that accused No. 11 has made necessary arrangements for getting passport at Trichy and with the help of that passport at Trichy and with the help of that passport he went to Calcutta and then to Singapore. It is also seen from the statement that arms and ammunitions were brought in Tongnova ship to Tamil Nadu for concealing in coastal area of Tamil Nadu. . . . . . THE witnesses Palani and Sivaraj have also given statements. It is seen from their statements that at Perumugai a dairy farm was run by 12th accused and that 11th accused used to visit the dairy farm. A similar statement was also given by the witness N. Kumar. THEy have also stated that after the assassination of Rajiv Gandhi the above said persons absconded. THE witnesses Natesa Mudaliar, Ravi and Selvaraj, have also given similar statements. A perusal of the statements of the witnesses would go to show that the 11th accused belonged to Ceylon and he came to Nithya Apartments 2nd Main Road, Gandhi Nagar, Adyar, Madras and was living there and they were having electronic machines and during night time a number of Ceylone people would come to see the accused and they used to have discussion and that no one would be allowed to enter into the house. A perusal of the statements of the witness Kalaivani would go to show that her husband Sugirthakumar is a member of LTTE and that accused 11 and 12 used to go to Perumugai to supervise the dairy farm and that LTTE people would come and stay in his house and the 11th accused is an important member of the LTTE and that he was having connections with the Ceylon Tamillians who were living abroad A perusal of the statements of the witness Gurusamy would go to show that accused 11 and 12 when they were caught by the police threatened that they would kill the police and they will die after consuming Cyanide poison.