BORJAHAN GOREY versus THE STATE OF WEST BENGAL

Citation: [1973] 1 S.C.R. 751 · Decided: 01-08-1972 · Supreme Court of India · Bench: J.M. SHELAT · Disposal: Dismissed

Judgment (excerpt)

A 
B 
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D 
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G 
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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 proceed-
ings 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 estab-
lished. 
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 per-
son 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 mainte-
nance 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 subjec-
tive 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 hear-
ing the detenu-petitioner in person also expressed opinion that there was 
sufficient cause for his detention. 
Jn these circumstances it was not posS'i-
ble for this Court in habeas corpris proceedings to hold an 
independent 
inquiry into the question whether or cot the grounds on which the im-

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