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PETITIONER: BORJAHAN GOREY

       Vs.

RESPONDENT: THE STATE OF WEST BENGAL

DATE OF JUDGMENT01/08/1972

BENCH: DUA, I.D. BENCH: DUA, I.D. SHELAT, J.M. KHANNA, HANS RAJ

CITATION:  1972 AIR 2256            1973 SCR  (1) 751  1972 SCC  (2) 550  CITATOR INFO :  F          1973 SC 207  (5)  F          1973 SC 897  (4)  R          1973 SC1062  (5)  R          1974 SC2154  (34)  D          1986 SC2177  (36)

ACT: Maintenance  of  Internal  Security Act 26 of  1971,  s.  3- Detention under--Grounds supplied containing facts on  which preventive  proceedings under ss. 109 & 110 of the  Code  of Criminal Procedure could lie--Detention on such facts  under Act whether barred--Corrections of facts whether can be gone into by this Court--Plea of mala fides whether established.

HEADNOTE: The  petitioner  was detained by an order  of  the  District Magistrate,   Howrah  and  under  the  provisions   of   the Maintenance  of Internal Security Act (26 of 1971).  He  was supplied the grounds of detention.  He made a representation which  was considered by the authorities under the  Act  and rejected.   A petition under article 32 of the  Constitution was  then  filed  and the petitioner urged :  (i)  that  the ’facts mentioned in the grounds of detention came within the purview  of  sections 109 and 110 of the  Code  of  Criminal Procedure  and therefore his detention on those facts  under s.  3  of  the  Act was unjustified;  (ii)  that  the  facts mentioned  in the grounds were not correct and the order  of detention was mala fide. Dismissing the petition, HELD : (i) Merely because a detenu is liable to be tried  in Criminal Court for the commission of criminal offences or to be  proceeded  against for preventing  him  from  committing offences dealt with- in Chapter VIII of the Code of Criminal Procedure  would not by itself debar government from  taking action for his detention under the Act.  The Act was  passed in order to meet a serious situation affecting the  security of India and the maintenance of public order as contemplated by  section 3 of the Act.  Judicial trial for punishing  the accused for the commission of an offence as also  preventive security  proceedings in a criminal Court against  a  person merely  for  keeping the peace or for good  behaviour  is  a

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jurisdiction  distinct from that of detention under the  Act which  has in view the object of preventing the detenu  from acting in any manner prejudicial Inter alia to the  security of the State or maintenance, of public order.  The fields of these  two jurisdictions, are not co-extensive nor are  they alternative’  The jurisdiction under the Act may be  invoked when the available evidence does not come up to the standard of  judicial  proof but is otherwise cogent enough  to  give rise  to  suspicion in the mind of the  authority  concerned that  there is reasonable likelihood of repetition  of  past conduct  which  would  be  prejudicial  inter  alia  to  the security of the State or the maintenance of public order  or even  when  the  witnesses may be frightened  or  scared  of coming  to the Court and deposing about past acts  on  which the  opinion  of  the authority concerned  is  based.   This jurisdiction   is  sometimes  called  the  Jurisdiction   of suspicion  founded  on  past  incidents  and  depending   on subjective  satisfaction.   The  authorities  mentioned   in section 3(2) which include the District Magistrate are  best suited  to decide whether it is necessary to  proceed  under the   Act,   which  decision  rests  on   their   subjective satisfaction.   The grounds of detention relate to the  past acts  on  which  the opinion as to  the  likelihood  of  the repetition  of  such  or similar acts is  based,  and  those grounds are ’furnished to the detenu to inform 752 him  as to how and why the subjective satisfaction has  been arrived  it so as to enable him to represent  against  them. The fact, therefore that a prosecution under the Code  could have  also  been launched is not a valid ground  for  saying that it precludes the authority from acting under the Act. (2)  The  District  Magistrate  is  expected  to  know   the situation  prevailing in the district and to  take  suitable action for the maintenance of public order.  His  assessment of  facts  and  his opinion on the  propriety  of  making  a detention order must be given due consideration and  respect by  this  Court.  The petitioner’s representation  was  also duly  considered by the State Government and rejected.   The Advisory Board after hearing the detenu-petitioner in person also  expressed opinion that there was sufficient cause  for his  detention.  In these circumstances it was not  possible for  this  Court  in habeas corpus proceedings  to  hold  an independent  inquiry  into the question whether or  not  the grounds on which the impugned order or detention was  passed were false or non-existent.  Nor could the impugned order be held to be mala fide.  There being no legal infirmity in the order of the petitioners detention, and the ’facts  affirmed by  the  District Magistrate which must be accepted  on  the facts  and  circumstances  of the case  to  be  true,  being relevant to the object of the detention, this petition  must fail.

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition No. 192 of 1972.  (Under  Article  32 of the Constitution of India  for  tile enforcement of fundamental rights.) Hiralal fain for the petitioner. P.   K. Chakraborty and G. S. Chatterjee for the respondent. The Judgment of the Court was delivered by Dua, J This is a petition under Art. 32 of the  Constitution challenging  the order of the petitioner’s  detention  dated September 23, 1971 made by the District Magistrate,  Howrah, under  S.  3,  sub-ss. (1) and (2)  of  the  Maintenance  of

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Internal  Security Act, 26 of 1971 (hereinafter  called  the Act).   The  petitioner Borjahan Gorey, who claims to  be  a laborer  working  in Gogalbhai Jute Mills  was  arrested  on October 5, 1971 pursuant to the impugned order of detention. The grounds of detention were served on him on the same day. He made a representation to the State Government on  October 25. 1971 which was duly considered by the said Government on October  29, 1971.  His case was placed before the  Advisory Board  on November 1, 1971 as required by S. 10 of  the  Act and  the said Board made_ its report on December 10, 197  1. As  in the opinion of the Board there was  sufficient  cause for   the  petitioner’s  detention  the   State   Government confirmed  the  impugned  order on  December  23,  1971  and communicated this fact to the petitioner on the same day. The grounds for the petitioner’s detention duly communicated to him under S. 8(1) of the Act are :-               "(1) On 7-7-71 after 19.30 hours you and  your               associates  As  to Patra,  Netai  Patra,  Habi               Khara and               753               others  terrorised the members of the  public,               who  assembled  in  the field  of  Shri  Saraj               Ghosal  near Fuleswar Rly.  Station to  decide               the  actions  to be taken  against  the  anti-               social   activities,   like   snatching   away               valuables  from  the passengers  from  running               trains, carried on by you and your associates,               by  exploding  bombs  at a  distance  of  8/10               cubits  from the place of meeting.  The  local               people  being panicky started  running  helter               and  skelter  but  you  and  your   associates               obstructed  them  by brandishing.  swords  and               iron rods.               2.    On 6-8-71 at about 11.45 hours, you  and               your  associates  Netai  Patra,  Asto   Patra,               Amjed, Habi Khara and 15/20 others being armed               with  ballam, sword and bombs etc., formed  an               unlawful  assembly  in front of the  shop  _of               Pranab   Sarkar  of  Kalsafa  market,  P.   S.               Uluberia  and  ’attacked  one  Basudev  Sarkar               causing  severe injuries on his person.   When               resisted by the members of the public, you and               your associates attacked them causing injuries               to some of them and terrorised them by hurling               bombs towards them.  Being panickstricken, the               local people started to run aimlessly and  the               market  was closed instantaneously.   You  and               your associates created a reign of terror  and               continued your rowdy activities till a  police               party reached there." The  first  point presented by Shri  Hiralal  Jain,  learned counsel appearing as amicus curiae against the  petitioner’s detention  is  that the grounds, on the basis of  which  the impugned detention order has been made, disclose facts which would squarely fall within the purview of ss. 109 and 110 of the   Code  of  Criminal  Procedure  and,   therefore,   the petitioner should have been appropriately proceeded  against under those sections rather than detained under s. 3 of  the Act.  Our attention was not drawn by the learned counsel  to any statutory provision, nor was any precedent or  principle cited by him in suport of this contention. Now  merely  because  a detenu is liable to be  tried  in  a criminal  court for the commission of a criminal offence  or to  be proceeded against for preventing him from  committing offences dealt with in Chapter VIII of the Code of  Criminal

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Procedure,  would  not by itself debar the  government  from taking  action for his detention under the Act.  The  scheme of the Act as disclosed by its clear language does not  lend any support to the contention urged by Shri Jain.   Besides, the  object and purpose of bringing the Act on  the  statute book  also  clearly  shows that in view  of  the  prevailing situation in the country 754 and  the  developments across the border in July,  1971  the need was felt for urgent and effective preventive action  in the   interest  of  national  security  and  the   Act   was retrospectively  enacted  to  replace  the  Maintenance   of Internal Security Ordinance, 1971.  The preventive detention provided by the Act is apparently designed to deal  urgently and  effectively  with the more  serious  situation,,  inter alia, affecting the security of India and the maintenance of public  order  as  contemplated by S. 3  of  the  Act.   The liability  of the detenu also to be tried for commission  of an offence or to be proceeded against under Chapter VIII  of the  Code of Criminal Procedure which deals with  prevention of less serious disturbances and requires execution of bonds on the basis of the acts disclosed in the grounds do not  in any  way as a matter of law affect or impinge upon the  full operation  of  the Act.  The reason  is  obvious.   Judicial trial  for  punishing the accused for the commission  of  an offence  as  also  preventive  security  proceedings  in   a criminal court against a person Merely for keeping the peace or  for  good behavior under Chapter VIII ,of  the  Code  of Criminal  Procedure,  we may appropriately point out,  is  a jurisdiction distinct from that of detention under the  Act, which has in view, the object of preventing the detenu  from acting in any manner prejudicial inter alia to the  security of the State or maintenance of public order.  The fields  of these  two jurisdictions are not co-extensive nor  are  they alternative.  The jurisdiction under the Act may be invoked, when the available evidence does not come up to the standard of  judicial  proof but is otherwise cogent enough  to  give rise  to  suspicion in the mind of the  authority  concerned that  there is a reasonable likelihood of repletion of  past conduct  which  would  be  prejudicial  inter  alia  to  the security of the State or the maintenance of public order  or even  when  the  witnesses may be frightened  or  scared  of coming to a court and deposing about past acts on which  the opinion   of  the  authority  concerned  is   based.    This jurissdiction  is  sometimes  called  the  jurisdiction   of suspicion  founded  on  past  incidents  and  depending   on subjective satisfaction.  The jurisdiction for trial or  for preventive proceedings under Chapter VIII.  Code of Criminal Procedure   cannot  be  successfully  invoked  in   such   a situation.  In other words a case under the Code of Criminal Procedure  whether  punitive or preventive  depends  on  the proof  of  objective facts which have already  taken  PI-ace whereas a case under the Act providing for preventive deten- tion   depends  on  the  subjective  satisfaction   of   the authorities concerned of the likelihood of the person to  be detained  to  act in future in a manner similar to  the  one seen  from his past acts.  The authorities mentioned  in  S. 3(2) which include the District Magistrate are, in our view, best  suited, to decide whether it is necessary  to  proceed under  the  Act  which decision rests  on  their  subjective satisfaction.   The grounds of detention  relate 755 to  the past acts on which the opinion as to the  likelihood of the repetition of such or similar acts is based and those grounds are furnished to the detenu to inform him as to  how

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and  why the subjective satisfaction has been arrived at  so as  to  enable  him to represent against  them.   The  fact, therefore, that a prosecution under the Code could also have been  launched  is  not a valid ground for  saying  that  it precludes  the  authority from acting under the  Act.   This contention is thus devoid of merit.  We have discussed  this aspect   somewhat  elaborately  go  as  to   eliminate   any misunderstanding  of the True import of our decision and  to exclude the possibility of any impression that the Act vests in the authority arbitrary power to select one or the  other course   dealing,,  with  the  same  or  exactly   similarly situation. The  learned  counsel then referred us to  the  petitioner’s denial in his representation of the truth of the allegations contained in the two grounds.  According to him on the  date on  which the incident mentioned in ground no. 1 is  alleged to  have  occurred he was present on duty in the  mill  and, therefore,   he   could  not  have  participated   in   that occurrence.   That ground must, therefore, be considered  to be  false, con-. tended Shri Jain.  In so far as the  second ground  is  concerned, according to the petitioner,  at  the time of the alleged incident, i.e., at 11.45 a.m. on  August 6, 1971, he was at the dispensary of the doctor appointed by the  Employees’  State Insurance for  Gogalbbai  Jute  Mills where  he had eone with the object of taking medical  ’leave for  a  couple of days because he was sick and  was  running temperature.   In other words the petitioner  ,pleads  alibi with  respect  to both the grounds.  On the basis  of  these contentions,  according  to Shri Jain,  the  impugned  order should  be  held to be based on allegations  which  are  not true.   The  impugned  order  of  detention  is  accordingly contended  to be insupportable being based  on  non-existing facts. We  are unable to agree with this submission.  The  District Magistrate who made the impugned order has, in the  counter- affidavit,  sworn "that the detenu-petitioner is one of  the notorious   rowdies   and  anti-social  elements   of   P.S. Pudubalia, District Howrah.  He has further added that after receiving reliable information relating to the alleged anti- social and prejudicial activities of the,  detenu-petitioner relating  to the maintenance of public order he  passed  the order of detention under the Act.  In para 7 of the counter- affidavit he affirmed both the grounds in express  language. We do not find any cogent ground for not accepting the facts affirmed in the counter-affidavit.  The District  Magistrate is expected to know the situation prevailing in the district and  to take suitable action for the maintenance  of  public order.  His assessment of facts and his opinion on the 756 propriety  of  making a detention order must  be  given  due consideration  and respect by this Court.  The  petitioner’s representation  was  also  duly  considered  by  the   State Government and rejected.  The Advisory Board, after  hearing the  detenu-petitioner in person also expressed the  opinion that there was sufficient cause for his detention.  In these circumstances,  it is not possible for us in  habeas  corpus proceedings to hold an independent enquiry into the question whether  or not the grounds on which the impugned  order  of detention is passed are false or non-existent.  Nor can  the impugned order be held to be mala fide as suggested by  Shri Jain.   There being no legal infirmity in the order  of  the petitioner’s  detention  and,  the facts  affirmed  by_  the District Magistrate, which must be accepted on the facts and circumstances of this case to be true, being relevant to the object  of  detention, this petition must fail and  is  dis-

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missed. Petition dismissed G.C. 757