# BORJAHAN GOREY v. THE STATE OF WEST BENGAL

- **Citation:** [1973] 1 S.C.R. 751
- **Court:** Supreme Court of India
- **Decided:** 1972-08-01
- **Case number:** Writ Petition No. 192 of 1972
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/borjahan-gorey-v-the-state-of-west-bengal-5712
- **Pages:** 6

## Headnote

A
B
c
D
E
p
G
H
BORJAHAN GOREY
v.
THE STATE OF WEST BENGAL
August 1, 1972.
U. M. SHELAT, I. D. DUA AND H. R. KHANNA, JI.]
751
Maintenance of Im :nwl Security Act 26 oj !971, s. 3--Detention
tJ11der-Grounds supplied containing facts on which preventive proceedings under ss. 1.09 & 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 tides whether established.
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 detent!on. He made a
representation which wa• considered by the authorities under the Act and
rejected. A petition under article 32 of the Constitution
was then filed
and the petitioner urged : 0) 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 ·Jnjustified; (ii) that the facts mentioned in
th<>
grounds were not correct and the order of detention was ma/a fide.
Dismissing the petition,
HELD: (i) Merely because a detenu is liable to be tried in Criminal
Court for the commission of criminal P.ffences or to be proceeded against
for preventing him from committing offences dealt wlth 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 securitr 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 offonce
as also preventive security proceedings in a criminal Court against a person merely for )ceeping the peace or for good bchavlour ia a jurisdlctlon
distinct from that of detention under the Act wblch bu in view the ob ie"t
of preventing the detenu from acting in any manner prejudicial lnt•r aUa
to the security of the State or maintenanc<J 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 avail•ble evidence
does not come up to the standard of judicial prodf but is otherwise cogent
enough to give rise to suspicion in the mind of the authority concerned
that there is reasonable likelihood of reoetition of past conduct which
would be prejudicial in'rer 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 iurisdiction of suspicion founded on past incidents and depend·
ing on. subjective satisfaction. The authorities mentioned i" section 3(2)
which include the District Magistrate are hest suited to decide whether it i•
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
nets is based, and those grounds are 'furnished to the detenu to inform
752
SUPREME COURT REPORTS
[1973] l S.C.R.
-
him as to hov.' anct 'vhy the subjective satisfaction has hccn arrive<l at ;.;.Q
as to enable him to represent against them.
The fact, therefore thnt
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 tl1:
Act.
(2) Tlje District Magistrate is expected to know the situati.on prevail·
ing 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 petitione

## Text

A
B
c
D
E
p
G
H
BORJAHAN GOREY
v.
THE STATE OF WEST BENGAL
August 1, 1972.
U. M. SHELAT, I. D. DUA AND H. R. KHANNA, JI.]
751
Maintenance of Im :nwl Security Act 26 oj !971, s. 3--Detention
tJ11der-Grounds supplied containing facts on which preventive proceedings under ss. 1.09 & 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 tides whether established.
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 detent!on. He made a
representation which wa• considered by the authorities under the Act and
rejected. A petition under article 32 of the Constitution
was then filed
and the petitioner urged : 0) 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 ·Jnjustified; (ii) that the facts mentioned in
th<>
grounds were not correct and the order of detention was ma/a fide.
Dismissing the petition,
HELD: (i) Merely because a detenu is liable to be tried in Criminal
Court for the commission of criminal P.ffences or to be proceeded against
for preventing him from committing offences dealt wlth 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 securitr 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 offonce
as also preventive security proceedings in a criminal Court against a person merely for )ceeping the peace or for good bchavlour ia a jurisdlctlon
distinct from that of detention under the Act wblch bu in view the ob ie"t
of preventing the detenu from acting in any manner prejudicial lnt•r aUa
to the security of the State or maintenanc<J 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 avail•ble evidence
does not come up to the standard of judicial prodf but is otherwise cogent
enough to give rise to suspicion in the mind of the authority concerned
that there is reasonable likelihood of reoetition of past conduct which
would be prejudicial in'rer 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 iurisdiction of suspicion founded on past incidents and depend·
ing on. subjective satisfaction. The authorities mentioned i" section 3(2)
which include the District Magistrate are hest suited to decide whether it i•
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
nets is based, and those grounds are 'furnished to the detenu to inform
752
SUPREME COURT REPORTS
[1973] l S.C.R.
-
him as to hov.' anct 'vhy the subjective satisfaction has hccn arrive<l at ;.;.Q
as to enable him to represent against them.
The fact, therefore thnt
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 tl1:
Act.
(2) Tlje District Magistrate is expected to know the situati.on prevail·
ing 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 qonsidered
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.
Jn these circumstances it was not posS'ible for this Court in habeas corpris proceedings to hold an
independent
inquiry into the question whether or cot the grounds on which the impugned order or detention was passed Vl'·ere false or non~cxistent. N·or
could the impugned order be held to be ma/a fide. There being no legal
infirmity in the order of the petitioners detention, and the 'facts affirmed
by the District Magistrate which must he accepted
on
tltc
facts
anJ
,circumstances of the case to be true, loein,g relevant to the object of the
detention, this petition must fail.
ORIGINAL JURISDICTION : Writ Petition No. 192 of 1972.
(Umfor Article 32 of the Constitution of Inr1i1 for the
enforcement of fundame'l\tnl rights.)
Hiralal Jain for the petition~r.
P. K. Chakraborty and G. S. Chatterjee for the respomknt
The Judgment of the Court was delivered by
Dua, J. This is a petition under Art. 32 of the Constitutior
challenging the order ·of the petitioner's detention
dated September 23, 1971 made by ~he District
Magislrate,
Howrah,
under s. 3, sub-ss. (1) and (2) of the Maintenance of Internal
Security Act, 26 of 1971 (hereinafter called the Act).
The·
petitioner Bo;jahan Gorey, ·Who claims to be a laboup~r \\(Orking
in 'Gogalbhai Jute Mills was arres•ted 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 qn October
29, 1971. Hi§ case ·was placed before the Advisory Board on
November 1, 1971 as required by s. 10 of the Act and the said
Board mad~ its report on December 10, 1971. 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 ior the petitioner's detention duly
commuaicated to him under s. 8 (1) of the Act are :-
"(1) On 7-7-71 after 19,30 hours you and your
associates Asto Patra, Netai Patra, Habi Khara and
A
B
c
0
E
F
G
II
B
c
D
G
II
,,l
ll()l\JAI' ,N I', STA TE (Dua, J.)
others ti;.rrorised tlte members
of the
public,
who
thsembled in the field of Shri Saraj Ghosal near Fuleswar Rly. Statil :i. to decide the actions to' be taken
against tl)e anti-social activities, like snat<:hing away
'"waoles from the passengers from
running trains,
carried on by you and your associates, ·by explodinj!
bombs at a distance of 8/10 cubits from the place of
m~ing. _ The local people bein.g panicky started rm1ning helter and skelter but you and your associates
obstruct>~d them by brandishing swords and iron rods.
2. On 6-8-7 l at <tbout l l .45 hours, you and your
associates Netai Patra, Asto Patra; Ami•w, Habi Khara
and 15/20 others being armed with ballam, sword and
bombs etc., formed an Wllawful assembly in front o\
the shop of Pranab Sarkar of K alsafa market, P. S.
Uluberia and attacked one Basudev Sarkar causinir
severe injuries on his person.
When re&isted by the
members of the public, you and your associates attacked them causing iniuries to some of them and terrorised them by hurling bombs towards them. Being panickstricken, rthe local people started to run aimlessly and
the market was closed instantaneously. You and your
.1ssociates created a reign of terror and continued your
rowdy activities till a police party reached •there."
The first point presertted by- Shri Hiralal Jain, learned counsel appearing as amicus curiae against the petitioner's deteirtion
is that the grounds, on the basis of which the impugn·~d dete:a·
tion 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 ,,roceeded
against
under
those
s·~ctions
rather than defafned under s. 3 of the Act.
Our attention was
not c.lra.t•i'i Liy the learned couMel to any
statutory provision,
nor was any precedent or principle cited by him in suport of this
contention.
Now merely because a delenu is liable to be trieu in
a
criminal court for the commission .of a criminal offeno~ or to
be proceeded against for
preventing him
from
committing
offences dealt with in Chapter VIII of the Code of Criminal
Procedt.rc. wc.,1ld not by itself debar the .government from taki'.ig
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
PUfP<>'e of bringin~ the Act on the statute book also
clearly
'hows that in view of the prevailing situation in the country
SUPREME COURT REPORTS
[1973] 1 S.C.R.
and the developments across the border in July, 1971 the need
was felt for urJ!;ent and effective preventive action in the interest
of national security and 1the Act was · restrospectively
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 tire more se1ious
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
PP~ventive
security proceedings in a criminal court against a person merely
for keeping the peace or for good behaviour under Chapter VU!
of the Code of Criminal Procedure, we may appropriately point
out, is a jurisdiction distinct 'from 1that of detention under the
Act, which has in view, the object of preventing the
detcnu
from actinl!: in any manner prejudicial inter alia to the security
of the State or maintenance of public order. The fields of \hese
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 1to the standard of judicial proof
bqt is otherwise cogent enough to give rise to suspicion in the
mind of the authority concerned that there is a reasonable likelihood of repetition of past conduct which would be prejudici11l
Inter alia to the securi'ty of the State or the maill'lenance 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 .iurisdict!on is sometimes called the jurisdiction of suspicion founded
on past incidents and depending on subj~tive satisfaction. The
jurisdiction for trial or for preve111tive proceedings under Chapter
VIll. Code of Criminal Procedure cannot be successfully invoked in such a situation. In other words a case under the Code
of Criminal Procedure whether punltive or preventive depends on
the proof of objective facts which have already taken
place
whereas a case under the Act providing for preventive detention depends on the subjective satisfaction
of
the authorities
concerned of the likelihood of the person to be detained to act
in future in a manne~ similar 1to the one seen from his pas·t acts.
The authorities mentioned in s. 3 (2) which include the District
Magistrate are, in our view, best suited. to deci~e, wlP;,thcr it i~
necessary to proceed under the Act which dec1s1on
rests on
their subjective satisfaction.
The grounds of deterrtion
relate
11
c
D
E
G
JI
I-
B
c
D
E
p
G
If
BORJAHAN 1'. STATE (Dua. J.)
755
to the past acts on which the opinion as to the likelihood of tht
repetition of such or similar acts is based and those
grounds
are furnished to the detenu to inform him as to how and why
the subjective satisfaction has been arrived at so as 'lo enable
him to represent a,1zainst them.
The fact, therefore, that a pro·
secution under the Code could also have been launched is
not
a valid l!,f()Und for saying that it precludes the authority from
acting under the Act.
This contention is thus devoid of meri't.
We have discussed this aspect somewha1 elaborately so as
to
eliminate any misunderstandin11: of the true import of our deci
sion and to exclude the possibility of any impression that the
Act vests in the authority arbitrary power to select one or the
other course dealin.e: 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 11;rounds.
According to him on
the dat.
· en which the incident mentioned in ground no. 1 is
alleged
to have occo.1rred he was present on duty in the mill and, therefore, he could not
have participated
in
that
occu1'4lnce.
That ,;round must, iherefore, be considered to be false, con-·
tended Shri Jain. In so far as the second l!.fOUnd is concerlled.
according to the petitioner, at the time of the aileged 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 Insuranc,} for
Go11:albhai Jute Mills where he had gone with the object of
taking mediCl!I leave for a couple of days because he was sick
and was running temperature.
In other words the petitioner
l)leads alibi with respect to both the grounds.
On the basis of
the8e contentions, according to Shri Jain, th'3 impugned order
should be held to be based on allegations which are not true
The impuRUed order of detention is accordingly contended to be
insupportable being based on non-existing facts.
We arP- unable to a11:ree with this submission.
Tl1e District
Mal(istrate who made the impugned order has, in the counteraffidavit, sworn "that the
detenu-petitioner
is
one of the
notorious rowdies and anti-social elements of P .S.
Pudubalia,
District H0wrah".
He has further added that after receiiVing
reliable information relatin1t to the alleged anti-social and preiudicial activities of the detenu-petitioner relating to •the maintenance of public order he passed the oi:d·~r of detention under
the Act. In para 7 of the counter-affidavit he affirmed both the
"rounds in express language. We do nO't find any cogent ground
for not accepting the facts affirmed in the counter-affidavit. The
District Maltistrate is expected to know the sHuation prevailinJ!
in the district and to take suitable action for the maintenance of
public order.
His assessment of fac1s and his opinion on the
756
SUPREME COURT REPORTS
(1973] 1 S.C.R.
propriety of making a detention order must be given due consideration and respect by this Com't.
The petitioner's representation was alsp duly considered by the State Government and
rejected.
The Adviliory Board, afte:r hearing the detenu-petitioner in person also expressed the opinion that there was suffident 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
malt.; fide as sugges1ed by Shri Jain. There being no legal infirmity in the order of the petitioner's
detention and,
the facts
affirmed by. the Distriot Magistrate, which r.!ust be accepted on
the facts and circumstances of this case tcr be true, being relevant
to the object of detention. ithis petition must fail and is
dismissed.
8
c
G.C.
Petition dismissed
D
I