JUDGMENT AJIT KUMAR SENGUPTA, J. 1. Having regard to the importance of this case, this matter has been referred to the Division Bench. 2. In this Writ application, the petitioner has challenged the F.I.R. No. 640 dated 3rd September, 1993 under S. 420/120B of the I.P.C. read with S. 4 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 on the ground that the said Act has not been properly applied and that the F.I.R. was not lodged before the designated Court in terms of the said Act. 3. Shortly stated the facts are that the petitioner Arun Kumar Burman has been living at Andaman for the last 30 years. He hails from Assam. After serving the Administration of these Islands for 22 years, he retired and at that time he was attached with the Directorate of Health Services of the Administration. He set up a medicine shop under the name and style of Kalpana Medical Store. On the basis of the certificate and registration of the Council of Alterative System of Medicine in Indo-Allopathy, he started practising medicine in the clinic. His two sons are studying in Russia. He gave an advertisement in the local daily the Daily Telegramme on 26th August 1993 under the caption Higher Studies in Russia in several subjects, e.g. Medicine, B.D.S. Engineering, Pilote, International Law, Intelligence Branch, Arts, Commerce, Accountancy, Business Management, Sports, Post Graduation and many other subjects and that 15 candidates are selected. 4. It appears that police lodged F.I.R. No. 640 dated 3rd September, 1993 under S. 420/120B of the Indian Penal Code read with S. 4 of The Terrorist and Disruptive Activities (Prevention) Act 1987, hereinafter referred to as TADA. The said F.I.R. was lodged before the Chief Judicial Magistrate and from time to time orders were passed by the learned Chief Judicial Magistrate. The accused was produced on 4th September, 1993 before the learned Chief Judicial Magistrate. Bail petition was considerer and rejected by the learned Judicial Magistrate II who was holding the charge of Chief Judicial Magistrate, on 6th September, 1993. Since then the petitioner is in the jail custody. 5. Provisions contained in TADA are very drastic. These should not be ordinarily resorted to unless the ordinary law enforcing machinery, fails. The provisions are drastic in that they provide minimum punishments and in certain case enhanced punishments also. They make confession made to police admissible. Since then the petitioner is in the jail custody. 5. Provisions contained in TADA are very drastic. These should not be ordinarily resorted to unless the ordinary law enforcing machinery, fails. The provisions are drastic in that they provide minimum punishments and in certain case enhanced punishments also. They make confession made to police admissible. There is a mandate also raising of robut-table presumption of proof. Accused can also be identified by photographs. Restitutions have been imposed on granting bail. These are some of the harsh measures provided in the TADA. Accordingly, the statute must be strictly constued and it is only in those cases where the law enforcing machinery fails and the ordinary law appears to be inadequate or unable to deal with such cases, then only the provisions of TADA should be resorted to for effectively tackling the terrorist and disruptive activities. 6. Records have been produced before us. We are not prima facie satisfied from the materials so far obtained by the police authorities that the petitioner is involved in any disruptive activity as mentioned in S. 4 of the Act. Unless there are circumstances warranting a prima facie case that the accused is involved in disruptive activity, resort cannot be taken to the provisions of TADA. 7. In this case the seizure memo was prepared on 4th September, 1993. From the seizure memo it does not appear that the F.I.R. was lodged invoking the provisions of S. 4 of TADA. Although in F.I.R. which was lodged on 3rd September, 1993, it is said that provisions of S. 420/120B IPC read with S. 4 of TADA were invoked. Mere mention of the S. 4 of TADA will not bring it within the mischief of the said Act, unless there are materials warranting such course to be adopted. That apart, under the provisions of the said Act, the F.I.R. ought to have been lodged before the designated court, which is the court of the learned Sessions Judge in this case. On the contrary the F.I.R. was lodged and from time to time proceedings were taken before the Chief Judicial Magistrate. We do not find from the record that any prayer was made by the prosecution for transfer of the said case before the designated Court, that is to say, the court of the Sessions Judge. On the contrary the F.I.R. was lodged and from time to time proceedings were taken before the Chief Judicial Magistrate. We do not find from the record that any prayer was made by the prosecution for transfer of the said case before the designated Court, that is to say, the court of the Sessions Judge. Even on 10th December, 1993, the accused was produced from the jail custody and the learned Chief Judicial Magistrate recorded. Accused is produced from jail custody. Report in final form is waited. Accused is remended to jail custody till 23rd December, 1993. It does not appear that any submission whatsoever has been made by the prosecution that this case cannot be dealt with by the learned Chief Judicial Magistrate and has to be dealt with by the designated court. 8. In view of the fact that the provisions of TADA are so drastic, any procedural lapse on the part of the prosecution cannot be viewed with leniency. Since the proceedings were not lodged before the proper designated court, the question of proceeding under S. 4, of TADA cannot arise at this stage. It is not disputed that the High Court has power under Article 226, of the Constitution to entertain writ application for protecting fundamental rights by reason of erroneous application of the provisions of TADA. After all there is a threat to the fundamental rights guaranteed under Articles 21, 22 and 14 of the Constitution of India. There is noncompliance with the provisions of Ss. 3 and 4 of TADA as the F.I.R. has not been lodged with the designated Court. The prosecution therefore cannot take the advantage of TADA and detain the accused in jail custody beyond the statutory period mentioned in Code of Criminal Procedure in respect of an offence under Ss. 420/120B I.P.C. 9. The petitioner is already in the custody for 99 days. Had the usual procedure been adopted he would have automatically got the bail by this time after sixty days. In that view of the matter we direct that the proceedings which have been initiated through the F.I.R. lodged before the Chief Judicial Magistrate will be confined only to Ss. The petitioner is already in the custody for 99 days. Had the usual procedure been adopted he would have automatically got the bail by this time after sixty days. In that view of the matter we direct that the proceedings which have been initiated through the F.I.R. lodged before the Chief Judicial Magistrate will be confined only to Ss. 420/120B I.P.C. and in the event the prosecution on the basis of the materials intend to add the provisions of S. 4 of TADA, they will be at liberty to do so if the materials establish any prima facie case for invocation of S. 4 of TADA in this case. In such event the designated court will have the jurisdiction to take further action in the matter. 10. We do not intend to say that the prosecution shall not proceed with the inquiry. They should proceed with the inquiry and investigation and as and when the materials will be in their possession warranting the application or invocation of the provisions of TADA, they will be at liberty to do so in accordance with law. In the meantime the petitioner shall be released on bail with two surities of Rs. 50 thousand each upon the condition that the petitioner shall meet the Investigating officer everyday between 8.30 A.M. to 10.30 A.M. There will be further condition that the petitioner shall not go beyond Port Blair without obtaining the permission of the Investigating officer. Mr. Adhya, Learned Advocate appearing for the petitioner very fairly submitted that if it is the apprehension of the prosecution that the petitioner will be contacting Foreign Agencies for ulterior motive his telephone may be disconnected. In that view of the matter, we direct the telephone authorities to disconnect telephones bearing no. 21444 (Clinic), 21555 (Residence). The telephones shall only be re-connected when clearance will be given by the Investigating Officer's in this case. 11. In the event the sons of the petitioner come to Port Blair they shall also meet the Investigation Officer for the purpose of interrogation. 12. Let a xerox copy of the order duly countersigned by the Registrar, High Court at Calcutta, Circuit Bench at Port Blair be given to the Learned Advocate for the Parties on usual undertakings. I agree. Application allowed by directing that the proceedings will be confined only to Ss. 12. Let a xerox copy of the order duly countersigned by the Registrar, High Court at Calcutta, Circuit Bench at Port Blair be given to the Learned Advocate for the Parties on usual undertakings. I agree. Application allowed by directing that the proceedings will be confined only to Ss. 420/120B I.P.C. with liberty to .the prosecution to proceed with further inquiry and investigation and in case materials are obtained prima facie establishing case for invocation the provisions or TADA Act, the prosecution may invoke the provisions of the said Act in accordance with law. Bail granted to the petitioner. Directions given.