Judgment

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-s. (1) and (2) of the Maintenance of Internal Security Act 26 of 1971 (hereinafter called the Act). The petitioner Borjahan Gorey, who claims to be a labourer 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 Act and the said Board made 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.

2. The grounds for the petitioner s detention duly communicated to him under S.3 (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 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 about 11.45 hour, you and your associates Netai Patra, Asto Patra, Amjed, Rabi 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 Basudey 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 panick-stricken, 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".

3. The first point pressed 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, disclosed facts which would squarely fall within the purview of Sections 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 support of this contention.

4. 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 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 and the developments across the border in July, 1971 the need was fell for urgent and effective preventive action in the interest of national security and the Act was retrospective enacted to replace the Maintenance of Internal Security Ordinance, 1971. The preventive d