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5. Mr. N. Ganpapathy, the learned counsel appearing for the petitioner, took me through the various provisions of the Terrorist and Disruptive Activities (Prevention) Act, 1987 and contends that on admitted facts, no offence is made out against the petitioner herein either under Section 3(3) or under Section 3(4) of the TADA Act. According to the learned counsel, the only question which has to be considered in this case is whether the petitioner can be said to have committed any offence either under Section 3(3) or under Section 3(4) of the TADA Act. He further contends that on admitted facts, there are reasonable grounds for believing that the petitioner is not guilty of any alleged offence under Section 3(3) of the TADA Act. The learned counsel points out that the terrorist act which is supposed to have been committed in Crime No. 1205 of 1990 was on 19-6-1990, that the unsigned note which has been recovered from the said Vasanthan is admittedly by the end of Sept. 1991, and that it cannot be released to an offence committed on 19-6-1990. According to the learned counsel to hold the the petitioner herein has committed an offence under Section 3(3) of the TADA Act, it should be shown that the petitioner has abetted a terrorist act, and that to say that the petitioner has committed and offence under Section 3(4) of the TADA Act, some physical overt act is necessary with his act of "harbouring" a terrorist. He contends that first of all, there should be materials to show that the petitioner herein is a terrorist and then only after considering all these things on this aspect of the Court can give its findings. Learned counsel appearing for the petitioner further contends that the materials on record do not show a prima facie case against the petitioner herein and as such the finding given by the Designated Judge are perverse and based on 'no evidence'. The learned counsel relies upon the Judgment of the Supreme Court in Usmanbhai v. State of Gujarat, to show that at what point of time, stringent provisions of the TADA Act can be enforced. He further relies upon another judgment of the Supreme Court which is reported in Babu Singh v. State of Uttar Pradesh apart from another judgment in Kashmmira Singh v. The State of Punjab AIR SC 2147 : (1977 Cri LJ 1746) regarding the grant of bail. The learned counsel points out that, even according to the confessional statement of the said Vasanthan, the unsigned and undated letter has not reached the said Gundu Santhan alias Santhan at all. Relying upon Section 129 of the Evidence Act, the learned counsel appearing for the petitioner contends that, even assuming that the petitioner has written the unsigned letter, it should be treated as a privileged document written by an advocate as an advice to a client, and that on that basis the petitioner cannot be roped in under the provisions of the TADA Act. The sum and substance of the arguments of Mr. Ganapathy, the learned counsel appearing for the petitioner, is that the petitioner has not committed any offence under any of the provisions of the TADA Act, that the entire prosecution story has been built against the petitioner herein only on the basis of an unsigned and undated letter of the petitioner, confessional statement of the said Vasanthan and on a xerox copy of the letter dated 26-6-1990 received by the Superintendent of Police, Q Branch, C.I.D. Madras, which is alleged to be in the petitioner's handwriting, and that the Designated Court has erred in relying upon the aforesaid materials and has given a perverse finding stating that the petitioner has committed offence of abetting under Section 3(3) read with 2(a)(1)(ii) of the TADA Act. The learned counsel further contends that there are no materials at all to come to such a conclusion. The learned counsel further contends that the releasing of the petitioner on bail is even though the subjective of the satisfaction of the Designated Court on the admitted facts on materials, it must be reasonable. He further states that there is nothing wrong on the part of the petitioner, who appears for L.T.T.E. members, to advise has clients in such a manner and that the petitioner cannot be roped in this case as an accused for the offence of abetment. The learned counsel categorically points out the fact that the unsigned letter has not at all reached the said Gundu Santhan alias Santhan, even according to the confessional statement of the said Vasanthan.

6. Per contra, Mr. I Subramaniam, the learned Special Public Prosecutor for cases under TADA Act, argues that on a reading of the said unsigned and undated letter along with the confessionbal statement of the said Vasanthan, it is clear that the petitioner herein has committed an offence under Section 3(3) of the TADA Act. The learned Special Public Prosecutor fairly states that, if the said unsigned letter is taken as a professional communication, the position will be different. The learned Special Public Prosecutor argues that this court has no jurisdiction to grant bail when the Designated Court has rejected the application for bail. He relies upon the decision of the Supreme Court in Usmanbai's case and points out that the Supreme Court in that case has held that the High Court cannot grant bail under Section 439, Cr.P.C. and that the provisions with regard to bail are ousted by provisions of the TADA Act. The learned Special Public Prosecutor fairly brought to the notice of this Court, the decision in Ayubkhan Kalandarkhan Pathan v. State of Gujarat (1990) 1 Crimes 183 with regard to the grant of bail under the TADA Act. Referring to Sections 2(a)(1), 3(3) and 3(4) of the TADA Act, the learned Special Public Prosecutor strenuously contends that the petitioner has committed an offence of abetting and the Designated Court has rightly came to the conclusion that the petitioner should not be enlarged on bail. He further contends that this court sitting under Art. 227 of the Constitution of India should not entertain such a petition, when a bail application has been rejected by the Designated Court and the only remedy available to the petitioner is to approach the Supreme Court invoking Art. 136 of the Constitution of India, if so advised.

8. Now, coming to the facts of the case as available on records, they are simple. The petitioner herein is a practising advocate of the Madras Bar. It is an admitted fact that he appears for members belonging to L.T.T.E. in various Courts including the Designated Court. An unsigned and undated note is recovered from one Vasanthan and the said Vasanthan has given his confessional statement. The said recovery was made on 1-11-1991. A xerox copy of the letter dated 26-6-1990 alleged to have been written by the petitioner herein has been received by the Superintendent of Police, Q branch C.I.D., Madras. The said letter is alleged to have been written to one Kittu, a L.T.T.E. leader by the petitioner. The said letter was received on 10-11-1991. Based on the confessional statement of the said Vasanthan that the unsigned and undated letter has been given to him by the petitioner to be handed over to the said Gundu Santhan alias Santhan, a charge under Section 3 of the TADA Act has been framed against the petitioner.

9. On admitted facts, whether an offence has been made out prima facie against the petitioner herein and whether the conclusion arrived at by the Designated Court is right, is the next questions to be decided. Considering the fact that the matter is pending before the Designated Court and having given consideration of the evidence available on the materials on record, what all this Court can decide is whether prima facie an offence is made out under the TADA Act against the petitioner for refusing to release the petitioner on bail. The power to grant bail is found in sub-section (8) of Section 20 of the TADA Act as extracted in the earlier portion of this order. To grant bail to an accused, the Designated Court has to be satisfied that there are reasonable grounds for believing that the said person is not guilty of such offence and he is not likely to commit any offence while on bail. These limitations are in addition to the limitations contained in the Code of Criminal Procedure or any other law for the time being in force for granting of bail. On the facts of this case, it has to be seen whether the Designated Court has given a correct finding to refuse bail to the petitioner herein. In my view, the conclusion arrived at by the Designated Court is not based on any evidence and is totally perverse. The said Gundu Santhan alias Santhan has been proclaimed as an offender only on 7-10-1991 and the incident, that is, the murder of Padmanabha had occurred in the month of June 1990. The said Vasanthan who was arrested on 1-10-1991 and has given a confessional statement from whom an unsigned and undated letter has been recovered. The said unsigned letter has been produced before me and I have perused it minutely. The said unsigned letter alleged to have been sent by the petitioner reads as follows :