Judgment :- Jayarama Chouta, J. Smt.Lakshmi, W/o. Shanmugam, mother of detenu Velu has filed habeas corpus petition directing the respondent i.e., Deputy Superintendent of Police, Q Branch, Tirupathur, North Arcot Ambedkar District to produce the said Velu and set him at liberty and pass such further or other orders as this Court may deem fit and proper. 2. The necessary facts which could be gathered from the affidavit of the petitioner as well as the counter-affidavit of the respondent for the purpose of disposal of this petition are these: The petitioner’s son Velu was arrested on 11. 1992 and charges under Sec. 150(2)(a) of the Railways Act, Secs.3, 4 and 5 of the Explosive Substances Act, 1908, Secs.3(2), 4 and 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987, (hereinafter referred to as ‘TADA Act’) and Sec.120-B of the India Penal Code had been framed by the Designated Court, II, Madras. So far, 26 witnesses have been examined, 25 exhibits have been got marked and 109 material objects have been produced and marked and the case is posted for cross-examination of P.W.26, the Investigating Officer by the defence counsel. 3. At that stage, the present habeas corpus petition is filed by the mother of the detenu on the allegations that the said Velu was arrested on 11. 1992 and falsely implicated into offences under Sec.l56-A of Railways Act and Secs.3(3), 4 and 5 of the TADA Act even though there are no materials to implicate him and the Designated Court is proceeding with the trial. The petitioner has further sworn in the affidavit that the trial went on without any seriousness and the witnesses were produced periodically and the detenu is in continuous detention over 2 1/2 years which is half of the maximum sentence and hence, extending the remand beyond 2 1/2 years is illegal and violative of Art.21 of the Constitution of India. Further the TADA Act expired on 25. 1995 and the designated Judge who framed charge, recorded evidence, was also transferred and none could assume charge and the trial commenced has to be concluded by the same Judge even after has retirement. Since the said court was abolished and the TADA Act is dead, the normal procedure alone is applicable and the evidence placed did not disclose any offence against detention. On these grounds, the petitioner has prayed for the above relief. 4. Since the said court was abolished and the TADA Act is dead, the normal procedure alone is applicable and the evidence placed did not disclose any offence against detention. On these grounds, the petitioner has prayed for the above relief. 4. The respondent, one K.Gopalakrishnan, Deputy Superintendent of Police, Q Branch, CID, Tirupathur, North Arcot Ambedkar District, has sworn to a counter-affidavit, wherein he has denied the allegations made in the affidavit by the petitioner. He has sworn that the above habeas corpus petition is not maintainable in law or on the basis of the averments made and contentions raised in the affidavit filed in support of the petition. According to him, the detenu Velu was arrested on 11. 1992 and produced before the Designated Court and charges are framed on the basis of the availability of sufficient materials under the provisions of the Railways Act, Explosive Substances Act, TADA Act and the Indian Penal Code and trial on the side of the prosecution is almost completed and the said witness P.W.26, the Investigating Officer has to be cross-examined by the defence. The prosecution has been regularly producing the witnesses and at no point of time, there was slackness on the part of the prosecution in this regard. The counter-affidavit further reads that the delay in the examination of witnesses was occasioned only because of the dilatory tactics of the said Velu by approaching this Court vide H.C.P. Nos.614 of 1992, 518 of 1993 and 1945 of 1993 (H.C.P.No.841 of 1993 as mentioned by the learned Additional Public Prosecutor) seeking various reliefs and ultimately, all the petitions were dismissed by this Court. As regards the averment regarding expiry of TADA Act on 25. 1995, it was submitted that under the saving clause, as per Sec. 1 (4) of the TADA Act, the continuation of the trial is permissible. According to the respondent, the present petition is yet another attempt to scuttle the proceedings before the Designated Court, II, Madras. On these grounds, the respondent has prayed this Court to dismiss this habeas corpus petition. 5. We heard Mr.R. Sankarasubbu, learned counsel for the petitioner and Mr.I. Subramaniam, learned Additional Public Prosecutor on behalf of the respondent and perused the records. On these grounds, the respondent has prayed this Court to dismiss this habeas corpus petition. 5. We heard Mr.R. Sankarasubbu, learned counsel for the petitioner and Mr.I. Subramaniam, learned Additional Public Prosecutor on behalf of the respondent and perused the records. The first contention raised by the learned Advocate for the petitioner was that the trial should be completed within a period of one year and in the present case, the trial is being continued even beyond 2 1/2 years, and hence, on that ground, the detenu should be released forthwith. However, when questioned by us, Mr.Sankarasubbu, learned counsel was unable to point out any provision, either in the Criminal Procedure Code or under the Constitution of India. But, in this connection, the learned Advocate has invited our attention to a decision in Hussainara Khatoon and others v. Home Secretary, State of Bihar, Patna, A.I.R. 1979 S.C. 1360: 1979 Crl.L.J. 1036: (1979)2 A.P.L.J. (S.C.) 40: 1980 S.C.C. (Crl.) 23: (1980)1 S.CC. 81 and took us through paragraph 5 which reads as follows: “There is also one other infirmity of the legal and judicial system which is responsible for this gross denial of justice to the under-trial prisoners and that is the notorious delay in disposal of cases. It is a sad reflection on the legal and judicial system that the trial of an accused should not even commence for a long number of years. Even a delay of one year in the commencement of the trial is bad enough: how much worse could it be when the delay is as long as 3 or 5 or 7 even 10 years. Speedy trial is of the essence of criminal justice and there can be no doubt that delay in trial by itself constitutes denial of justice. It is interesting to note that in the United States, speedy trial is one of the constitutionally guaranteed rights. The Sixth Amendment to the Constitution provides that, In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial. It is interesting to note that in the United States, speedy trial is one of the constitutionally guaranteed rights. The Sixth Amendment to the Constitution provides that, In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial. So also Art.3 of the European Convention on Human Rights provides that, every one arrested or detained shall be entitled to trial within a reasonable time or to release pending trial.” We think that even under our Constitution, though speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Art.21 as interpreted by this Court in Menaka Gandhi v. Union of India, A.I.R. 1978S. C.597: (1978)1 S. C. C 248: (1978)2 S. C.R. 621: (1978)2 S.C.J. 312, we have held in that case that Art.21 confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law and it is not enough to constitute compliance with the requirement of that Article that some semblance of a procedure should be prescribed by law but that the procedure should be ‘reasonable, fair and just’. If a person is deprived of his liberty under a procedure which is not ‘reasonable, fair or just’, such deprivation would be violative of his fundamental right under Art.21 and he would be entitled to enforce such fundamental right and secure his release. Now obviously procedure prescribed by law for depriving a person of his liberty cannot be ‘reasonable, fair or just’ unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as ‘reasonable, fair or just’ and it would fall foul of Art.21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Art.21. The question which would, however, arise is as to what would be the consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of along delayed trial in violation of his fundamental right under Art.21. The question which would, however, arise is as to what would be the consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of along delayed trial in violation of his fundamental right under Art.21. Would he be entitled to be released unconditionally freed from the charge levelled against him on the ground that trying him after an unduly long period of time and convicting him after such trial would constitute violation of his fundamental right under Art.21? That is a question we shall have to consider when we hear the writ petition on merits on the adjourned date. But one thing is certain and we cannot impress it too strongly on the State Government that it is high time that the State Government realised its responsibility to the people in the matter of administration of justice and set up more courts for the trial of cases. We may point out that it would not be enough merely to establish more courts but the State Government would also have to man them by competent Judges and whatever is necessary for the purpose of recruiting competent Judges, such as improving their conditions of service, would have to be done by the State Government, if they want to improve the system of administration of justice and make it an effective instrument for reaching justice to the large masses of people for whom justice is to day a meaningless and empty word.” 6. He has also taken us through another decision in Kadra Pehadiya and others v. State of Bihar, 1981 Cr.L.J. 481 in particular, he placed reliance on the following portion of the said judgment found in the middle of paragraph 5 at page 482, where the Supreme Court has observed thus: “We had occasion in Hussainara khatoon’s case, (1980)1 S.C.C. 81 : A.I.R. 1979 S.C. 1360 to criticise this shocking state of affairs and we hoped that after the anguish expressed and the severe strictures passed by us, the justice system in the State of Bihar would improve and no one shall be allowed to be confined in jail for more than a reasonable period of time, which we think cannot and should not exceed one year for a sessions trial, but we find that the situation has remained unchanged and these four petitioners, who entered the jail as young lads of 12 or 13 have been languishing in jail, for over eight years for a crime which perhaps ultimately they may be found not to have committed." 7. Art.21 of the Constitution of India guarantees protection of life and personal liberty and says no person shall be deprived of his life or personal liberty except according to the procedure established by law. Interpreting this article, the Supreme Court has held that speedy trial is a fundamental right implicit i the guarantee of life and personal liberty and any accused who is denied this right of speedy trial is entitled to approach the court for the purpose of enforcing such a right, and the court, in discharge of its constitutional obligation, has power to give necessary directions to the State Government and other appropriate authorities for securing this right to the accused. It is nowhere stated in the statute that the trial should be over within one year and if not, the accused should be released. It depends upon the facts and circumstances of each case. The delay in the present case has taken place due to number of petitions as mentioned above, filed by the detenu before this Court and it cannot be attracted that the delay has occurred due to the attitude of the prosecution and it cannot be attributed slackness on the part of either the prosecution or the Presiding Officer as it is clear from the counter affidavit filed by the respondent. It is true that the Supreme Court has observed and has given some guidelines and directed that trial should be concluded as early as possible without there being unnecessary delay. As mentioned above, in the present case, the delay could be attributed only to the detenu and none else. Hence, we are not prepared to accede to this contention of the learned Advocate for the petitioner that the detenu should be released forthwith as he is in custody and the trial is not concluded within a period of 2 1/2 years. 8. The next contention of Mr.Sankarasubbu, learned Advocate for the petitioner was that the Designated Court could hot proceed with the trial in view of the fact TADA Act is not in forced from 25. 1995 and hence, the case in respect of the offences other than TADA offence should continue only before the regular court. On this submission, the learned Additional Public Prosecutor invited our attention to Sec. 1(4) of the Act. Sec. 1 (4) of the TADA Act reads as follows: (a) the previous operation of, or anything duly done or suffered under, this Act or any rule made thereunder or any order made under any such rule, or .(b) any right, privilege, obligation or liability acquired, accrued or incurred under this Act or any rule made thereunder or any order made under any such rule, or .(c) any penalty, forfeiture or punishment incurred in respect of any offence under this Act or any contravention of any rule made under this Act or of any order made under any such rule, or .(d) any investigation, legal proceeding or remedy in respect of any Such right, privilege, obligation, liability, penalty forfeiture or punishment as aforesaid. and any such investigation, legal proceeding or remedy may be instituted, continued or endorsed and any such penalty, forfeiture or punishment may be imposed as if this Act had not expired." "1(4) It shall remain in force for a period of (eight years) from the 24th of May, 1987, but its expiry under the operation of this sub-section shall not affect. 9. Placing reliance on this section, learned Additional Public Prosecutor stressed his argument on the words found in the section "as if this Act had not expired". He has also pointed out mat by virtue of Sec. 1(4) of the TADA Act, all the proceedings pending are saved. 9. Placing reliance on this section, learned Additional Public Prosecutor stressed his argument on the words found in the section "as if this Act had not expired". He has also pointed out mat by virtue of Sec. 1(4) of the TADA Act, all the proceedings pending are saved. He pointed out that the section clearly says that investigation, legal proceedings or remedy be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if this Act had not expired. He has invited our attention to a decision of the Supreme Court in Abdul Aziz v. State of West Bengal and another, W.P.No.(Crl.)No.413 of 1995,decided on 27. 1995, in which, the Supreme Court has held that in view of the specific saving clause provided in the TADA Act itself, in Sec. 1 (4) of the Act, the decision in Gobichand’s case, wherein it was held that in the absence of the saving clause in the Act, the trial which may commence for the offences under the said Act would not be held valid thereafter, will not be applicable in cases under TADA Act. It has also pointed out that even though Sec. 1(4) of the Act was not specifically taken into consideration, the TADA Act was generally held intra vires in Kartar Singh’s case, (1994)3 S.C.C. 569 . The Supreme Court has further observed in the said decision that the Parliament has prescribed the procedure for deciding the cases under TADA Act. Hence, no discretionary option is left to the State Government to choose the procedure for trial and the Parliament itself by enacting Sec. 1(4) of the TADA Act has made a clear distinction between the two classes of offenders: (1) Those offenders who have committed offences when the Act was in force, and (2) Persons who are not offenders under the Act at all as their activities take place after the expiry of the Act. Mr. I. Subramaniam, learned Additional Public Prosecutor also placed reliance on a decision of a Division Bench of this Court, to which one of us (T. Jayarama Chouta, J.) is a party in Mrs. S. Voila Selvin v. State of Tamil Nadu and another, H.C.P.No.749 of 1995 decided on 20.9.1995. Mr. I. Subramaniam, learned Additional Public Prosecutor also placed reliance on a decision of a Division Bench of this Court, to which one of us (T. Jayarama Chouta, J.) is a party in Mrs. S. Voila Selvin v. State of Tamil Nadu and another, H.C.P.No.749 of 1995 decided on 20.9.1995. In the said decision, following the decision of the Supreme Court supra, the Court has held that even after the expiry of the TADA Act, the trial for offences under the said Act should continue before the Designated Court. Hence, we see no force in the said contention of Mr.Sankarasubbu, learned Advocate for the petitioner that by virtue of repeal of the Act, the proceeding in respect of TADA offences should not be continued before the said court. 10. The third submission of the learned Advocate is that the case should not be continued before the Designated Court as the Presiding Officer who framed the charge and recorded some evidence has been transferred to other Court and other Judge cannot continue the said proceeding. In this connection, Mr.Sankarasubbu, learned counsel took us to Sec. 9(7) of the Act which reads as follows: “9(7) for the removal of doubts, it is hereby provided that the attainment by a person appointed as a Judge or an Additional Judge of a Designated Court of the age of superannuation under the rules applicable to him in the service to which he belongs, shall not affect his continuance as such Judge or Additional Judge.” In support of the said submission, he has referred to the decision of the Supreme Court in Kartar Singh v. State of Punjab, (1994)2 L.W. (Crl) 422 and drawn our attention to paragraphs 94 and 98 of the said decision, which runs as follows: “The validity of this section, which deals with the constitution of one or more Designated Courts for such area or areas, or for such case of class or group of cases specified in the notification issued by the Central Government or a State Government, is assailed firstly on the ground that it is violative of Entry 65, List II of the Seventh Schedule and Arts.233, 234 and 235 of the Constitution, and secondly that Sub-sec.(7) of Sec.9 is opposed to the principle of fair trial enshrined in Art.21 of the Constitution. xxx xxx xxx xxx xxx xxx 98. xxx xxx xxx xxx xxx xxx 98. Sub-sec.(7) of Sec.9 which speaks of the continuance of the service of the Judge is challenged on the ground that the continuance of a Judge of a Designated Court even after attainment of the age of superannuation is a regressive provision because a Judge who is permitted to hold the office, hitherto held, after superannuation will not be having his judicial independence; but on the other hand, he holding the office on the pleasure of the executive, will be subversive since there is nothing to prevent the executive from terminating his appointment as and when it likes. This legal sanction of continuance in the service, according to the learned counsel, will not serve the purpose of just and fair trial and it would be violating the principle enshrined in Art.21. For sustaining the above submission, reliance was placed on In Re: Special Courts Bill, (1979)2 S.C.R. 476 . “In that case, reference was made by the President under Art. 143(1) of the Constitution for consideration of the question whether the Special Courts Bill, 1978 or any of its provisions if enacted would be constitutionally invalid. For sustaining the above submission, reliance was placed on In Re: Special Courts Bill, (1979)2 S.C.R. 476 . “In that case, reference was made by the President under Art. 143(1) of the Constitution for consideration of the question whether the Special Courts Bill, 1978 or any of its provisions if enacted would be constitutionally invalid. Clause (7) of the Bill provided that a Special Court shall be presided over by a sitting Judge of a High Court in India or a person who has held the office as a Judge in a High Court in India and nominated by the Central Government in consultation with the Chief Justice of India (As we are concerned only with the question of the continuance of a Judge holding the office even on attaining the age of superannuation, we are not concerned about the other provisions or clauses of the Special Courts Bill.) Chandrachud, C.J. Speaking for the majority answered this question holding thus: “We are, therefore, of the opinion that clause 7 of the Bill violates Art.21 of the Constitution to the extent that a person who has held office as a Judge of the High Court can be appointed to preside over a Special Court, merely in consultation with the Chief Justice of India.” On carefully going through the decision, we are of the view that the observation of this Court with reference to clause (7) of the Special Courts bill cannot be strictly applied to the situation of the continuance of a Judge of a designated Court under Sec.9(7) for the reason that the person who was to be nominated by the Central Government in consultation with the Chief Justice of India Under clause (7) of the Special Courts Bill was a person who had held the office as a Judge of the High Court, that is to say the appointment was after the retirement. But in the present Act, the Judge is permitted to continue the same judicial service as a judge or Additional Judge, as the case may be, on the attainment of superannuation. In other words, the Judge on the attainment of the age of superannuation does not retire. Therefore, we see no force in the above argument challenging the constitutional validity of Sec.9(7) by availing the observation in In re. Special Court Bill, (1997)2 S.C.R. 476. In other words, the Judge on the attainment of the age of superannuation does not retire. Therefore, we see no force in the above argument challenging the constitutional validity of Sec.9(7) by availing the observation in In re. Special Court Bill, (1997)2 S.C.R. 476. However, we would like to suggest that the Central Government and the State Government at the time of appointing a Judge or an Additional Judge of to the Designated Court with the concurrence of the Chief Justice of the High Court concerned should keep in mind that the Judge designate has sufficient tenure of service even at the initial stage of appointment, so that no one may entertain any grievance for continuance of service of a Judge of the Designated Court after attainment of superannuation. Hence, Sec.9(7) does not offend any Constitutional provision." 11. Keeping in view these paragraphs, learned Advocate submitted that when Sec.9(7) of the Act has given further time beyond the period of superannuation to try the cases under the Act by the Designated Judge, it was not proper for this Court or to the Government to entrust the continuation of those cases to another Judge. 12. Mr. I. Subramaniam, learned Additional Public Prosecutor, repelling the said contention, has provided us a Government Order viz., G.O.Ms. No. 890, dated 16. 1995 which contains notification-II in which, the Government of Tamil Nadu with the concurrence of the Chief Justice, High Court of Madras exercising the powers conferred under Sub-sec.(4) of Sec.9 of the TADA Act and amended notification No. II (2) HO/5124(d-3)/92, published at page 3 of Part II Sec. 2 of the Tamil Nadu Government Gazette Extraordinary dated the 21st October, as subsequently amending the Said notification by subsisting the following table to the earlier table. TABLE Judges .(1) Designated Court .(2) Thiru R. Gurusamy, V Additional Judge, City Civil Court and Sessions Court, Madras. Designated Court II, Madras. 13. On the basis of the said notification, learned Additional Public Prosecutor submitted that there is no change in the court and the trial is proceeding in the same court i.e. Designated Court No. II and only the Presiding Officer is changed and there is no bar under the Act for such a procedure. Designated Court II, Madras. 13. On the basis of the said notification, learned Additional Public Prosecutor submitted that there is no change in the court and the trial is proceeding in the same court i.e. Designated Court No. II and only the Presiding Officer is changed and there is no bar under the Act for such a procedure. He also pointed out that Sec.9 of the Act speaks of court and not the Judge and hence, he submitted that there is no substance in the argument of the learned counsel for the petitioner. In this connection, he has invited our attention to paragraph 96 of Kartar Singh’s case, (1994)2 L.W. (Crl.) 422 at 458 which reads as follows: "As we have now found this impugned Act is enacted under Entry 1 of List 1, the Constitution of the Designated Courts by the Central Government cannot be said in violation of Entry 65 of List II which empower the State Legislature to constitute the courts. Under Sec.9 of the Act, both the Central Government and the State Governments are authorised to constitute Designated Courts by notification under Sub-sec.(2) of Sec.9. It is made clear that the courts constituted by the Central Government either before or after the issue of the notification constituting the Designated Courts by the State Government shall have jurisdiction to try any offences committed in that area or areas and the Designated Courts constituted by the State Government shall not have any jurisdiction to try any offence committed in that area or areas. In addition, Sub-sec. (3) of the impugned section states that where any question arises as to the jurisdiction of any Designated Court, the decision taken by the Central Government in that regard will be final." 14. After carefully considering the rival contentions, we are in full agreement with the submission made by the learned Additional Public Prosecutor and held that there is no merit on the point raised by the learned Advocate for the petitioner. If we accede to this submission of the learned Advocate for the petitioner, it will lead to anomalous situation. After carefully considering the rival contentions, we are in full agreement with the submission made by the learned Additional Public Prosecutor and held that there is no merit on the point raised by the learned Advocate for the petitioner. If we accede to this submission of the learned Advocate for the petitioner, it will lead to anomalous situation. In the case of death, retirement either voluntary or compulsory, of the Presiding Officer, or in other contingency of the said Presiding Officer who is unable to continue or hold the post, in that case, if we have to accept the contention of Mr.Sankarasubbu, learned counsel for the petitioner, the case will have to be closed. That is not the intention of the Parliament in introducing the temporary enactment. These are the only contentions raised before us. No other point has been raised before us." 15. After carefully considering the rival contentions and perusing the decisions referred supra and after giving our anxious consideration and for the reasons already stated above, we are not prepared to agree with anyone of the contentions of the learned Advocate for the petitioner. 16. Before concluding it will be proper for us to refer to the number of habeas corpus petitions filed by the present detenu. In the counter-affidavit filed by the respondent, there is reference to three habeas corpus petitions, in addition, learned Additional Public Prosecutor has furnished one more habeas corpus petition and Mr.Sankarasubbu, in all fairness submitted mat the detenu has filed totally 5 to 6 habeas corpus petitions. This gives a clear picture to us how the petitions have been filed one after another and by this process, the trial of the case is being dragged on. We hope atleast now, the detenu will give a quietus and see the end of the criminal trial without indulging in filing such petitions and will allow the Designated Judge to conclude the trial of the case. 17. For the reasons stated above, we see no merit in this habeas corpus petition and accordingly, it is dismissed.