whether the provisions of Section 3(4) of the National Security Act, 1980, requiring the detaining authority to report the detention to the State Government ‘forthwith,’ have been violated.= the act of reporting the detention after five days was in violation of Section 3(4). The District Magistrate did not furnish any reason whatsoever for having taken five days to report the detention to the state government. No justification was sought to be established for the delay in reporting the detention to the state government. In the circumstances, we allow the appeal and set aside the impugned judgment and order of the High Court dismissing the Writ Petition. In consequence, the order of detention shall stand set aside. The appeal is accordingly allowed.

1

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO OF 2018

(Arising out of SLP (CRL.) No.3424 of 2018)

HETCHIN HAOKIP ..Appellant

VERSUS

STATE OF MANIPUR AND ORS ..Respondents

J U D G M E N T

Dr D Y CHANDRACHUD, J

1. Leave granted.

2. These proceedings have arisen from the judgment of a Division Bench of

the Manipur High Court, at Imphal, dated 3 April 2018 in Writ Petition (Crl.)No

43 of 2017. The question before the High Court was whether the provisions of

Section 3(4) of the National Security Act, 1980, requiring the detaining authority

to report the detention to the State Government ‘forthwith,’ have been violated.

The High Court recorded that this was the only issue which formed the subject

of the challenge to the order of preventive detention.

REPORTABLE

2

3. The brief facts of the case are as follows. The appellant’s husband,

Jangkhohao Khongsai, with two others, was arrested by the police on 30 May

2017, and charged with offences under Section 400 of the I.P.C. and Section

25(1-C) of the Arms Act, 1959, allegedly for being a member of the cadre of the

KLA organization, and for possession of fire arms. On 12 July 2017, the District

Magistrate, Bishnupur, Manipur, passed an order of detention against him,

apprehending that the detenu was likely to be released on bail. On 17 July 2017,

the District Magistrate served the detenu with the grounds for his detention. On

20 July 2017, the Government of Manipur approved the order of detention.

4. The appellant filed a writ petition before the Manipur High Court,

challenging the order of detention. The appellant’s contention was that the

District Magistrate failed to report the detention to the State Government

“forthwith,” as provided under Section 3(4) of the Act. The District Magistrate –

it was urged – reported the detention after a lapse of five days, which violated

Section 3(4).

5. Section 3(4) of the Act provides that when a detention order is made by

a District Magistrate or a Commissioner of Police under Section 3(3) of the Act,

the Magistrate/Commissioner shall ‘forthwith’ report the fact of the detention

order to the State Government, along with the grounds on which the order was

made, and any other relevant facts. It also states that no detention order shall

remain in force for more than twelve days after making the order, unless it has

3

been approved by the State Government. The proviso to Section 3(4) states

that, if the grounds for detention under Section 8 are communicated to the

detenu after five days, but not later than ten days from the date of detention, the

words ‘twelve days’ will be substituted by ‘fifteen days’ in that sub-section.

Section 3, in so far as is material, is extracted below:

“3. Power to make orders detaining certain persons

(1) The Central Government or the State Government may,-

(a) if satisfied with respect to any person that with a view to preventing him

from acting in any manner prejudicial to the defense of India, the relations of

India with foreign powers, or the security of India, or

(b) if satisfied with respect to any foreigner that with a view to regulating his

continued presence in India or with a view to making arrangements for his

expulsion from India,

it is necessary so to do, make an order directing that such person be detained.

(2) ..

(3)…

(4) When any order is made under this section by an officer mentioned in subsection

(3), he shall forthwith report the fact to the State Government to which

he is subordinate together with the grounds on which the order has been made

and such other particulars as, in his opinion, have a bearing on the matter, and

no such order shall remain in force for more than twelve days after the making

thereof unless, in the meantime, it has been approved by the State

Government:

Provided that where under section 8 the grounds of detention are

communicated by the officer making the order after five days but not later than

ten days from the date of detention, this sub-section shall apply subject to the

modification that, for the words “twelve days”, the words “fifteen days” shall be

substituted.”

6. Section 8 requires the authority making the detention order to

communicate, to the detenu, the grounds for his detention. This communication

has to be made “as soon as may be,” but not later than five days from the date

of detention, in ordinary circumstances, and not later than ten days from the

date of detention, in exceptional circumstances (with reasons to be recorded in

writing for the delay). The section also requires the detaining authority to give

4

the detenu the earliest opportunity to make a representation against the

detention order, to the appropriate government. Section 8 is extracted below:

“8. Grounds of order of detention to be disclosed to persons

affected by the order

(1) When a person is detained in pursuance of a detention order, the

authority making the order shall, as soon as may be, but ordinarily not

later than five days and in exceptional circumstances and for reasons

to be recorded in writing, not later than ten days from the date of

detention, communicate to him the grounds on which the order has

been made and shall afford him the earliest opportunity of making a

representation against the order to the appropriate Government.

(2) Nothing in sub-section (1) shall require the authority to disclose

facts which it considers to be against the public interest to disclose.”

7. The question before the High Court was whether the act of the Magistrate,

in reporting the order of detention to the State Government, after five days, was

contrary to the requirement of reporting it “forthwith” under Section 3(4). The

appellant submitted before the High Court that “forthwith” means immediately.

It was further submitted that the delay of five days by the Magistrate, in reporting

the detention to the State Government, vitiates the detention.

8. The High Court dismissed the writ petition, holding that the scope of

Section 3(4) has to be understood according to the scheme of the Act, and not

in isolation. The High Court juxtaposed Section 3(4) with Section 8. It noted that

under Section 3(4), the report of the detention has to be submitted along with

the grounds for the detention. Comparing Sections 3(4) and 8, the High Court

reasoned that the purpose of sending the report (with grounds) to the State

Government under Section 3(4), is to enable the State Government to decide

whether or not to approve the order of detention. If the State government does

5

not approve the order of detention within twelve (or fifteen) days, it will lapse

anyway. On the other hand, the purpose of Section 8 is more sacrosanct, as it

is to make the detenu aware of the reasons for his detention and make a

representation to the authorities for release. The requirement under Section 8

was held to stand on a higher pedestal than the one under Section 3(4). If

Section 3(4) was interpreted in isolation, it would mean that, while the authority

can furnish the grounds of detention to the detenu within five days (or in

exceptional circumstances, ten days), it must furnish the report with grounds to

the State Government immediately, or instantaneously. According to the High

Court, such an anomaly was not contemplated under the law.

9. Before determining the correctness of the impugned judgment, it is

important to understand the meaning and scope of the term “forthwith” used in

Section 3(4) of the Act.

10. This Court has examined the meaning of “forthwith,” in the context of

statutes providing for preventive detention. In Keshav Nilkanth Joglekar v The

Commissioner of Police, Greater Bombay1

, a Constitution Bench of this court

interpreted Section 3(3) of Preventive Detention Act, 1950 [now repealed],

which was similar to Section 3(4) of the Act. The court compared the text of

Section 3(3) with Section 7 (equivalent to Section 8 of the Act). It observed that

“forthwith” is different from “as soon as may be” in that, under Section 7 the time

1 1956 (1) 1 SCR 653

6

permitted is “what is reasonably convenient,” whereas under Section 3(3), only

that period of time is allowed, where the authority could not, without its own fault,

send the report. The court laid down the following test for determining whether

the action of the authority was compliant with the “forthwith” requirement:

“Under section 3(3) it is whether the report has been sent at

the earliest point of time possible, and when there is an interval

of time between the date of the order and the date of the report,

what has to be considered is whether the delay in sending the

report could have been avoided.” (emphasis supplied)

11. In Bidya Deb Barma v D.M. Tripura, Agartala2

, a Constitution Bench of

this court held that:

“When a statute requires something to be done ‘forthwith,’ or

‘immediately’ or even ‘instantly,’ it should probably be

understood as allowing a reasonable time for doing it.”

12. In S.K. Salim v State of West Bengal3

, a two judge Bench of this court

observed that laws of preventive detention must be construed with the greatest

strictness. However, the rule of strict interpretation does not mean that the act

has to be done instantaneously, or simultaneously with the other act, without

any interval of time. Here, the court was dealing with Section 3(3) of the

Maintenance of Internal Security Act, 1971 (which is equivalent to Section 3(4)

of the Act). The Court held that:

“…the mandate that the report should be made forthwith does

not require for its compliance a follow-up action at the splitsecond

when the order of detention is made. There ought to be

2 1969 (1) SCR 562

3

(1975) 1 SCC 653

7

no laxity and laxity cannot be condoned in face of the command

that the report shall be made forthwith. The legislative

mandate, however, cannot be measured mathematically in

terms of seconds, minutes and hours in order to find whether

the report was made forthwith. Administrative exigencies may

on occasions render a post-haste compliance impossible and

therefore a reasonable allowance has to be made for

unavoidable delays.”

13. From the above cases, the position that emerges is that “forthwith,” under

Section 3(4), does not mean instantaneous, but without undue delay and within

reasonable time. Whether the authority passing the detention order reported the

detention to the State Government within reasonable time and without undue

delay, is to be ascertained from the facts of the case. In Joglekar, there was a

delay of eight days by the Police Commissioner, in sending the report to the

State Government. However, the court found that the reasons for the delay were

reasonable, since the Commissioner and his team were occupied in maintaining

law and order during a particularly tense time in Mumbai.

14. The High Court held in its impugned judgment that:

“While the delay in furnishing grounds of detention under

Section 8 of the Act may prejudice the right of the detenu as

guaranteed under Article 22(5) of the Constitution, furnishing

of the grounds of detention under Section 3(4) may not

prejudice the detenu so long as the report along with the

grounds of detention are furnished within a reasonable time,

but certainly within 12 days of the detention…If the report along

with the grounds of detention is submitted beyond 12 days, it

would certainly vitiate the detention order as without the report

and the grounds of detention, the State Government could not

have applied their minds whether to approve or not to approve

the detention order under Section 3(4) of the Act.”

8

15. The High Court is not correct in holding that as long as the report to the

State Government is furnished within twelve days of detention, it will not

prejudice the detenu. It is settled law that a statute providing for preventive

detention has to be construed strictly. While “forthwith” may be interpreted to

mean within reasonable time and without undue delay, it certainly should not be

laid down as a principle of law that as long as the report to the State Government

is furnished within 12 days of detention, it will not prejudice the detenu. Under

Section 3(4), the State Government is required to give its approval to an order

of detention within twelve, or as the case may be, fifteen days.

16. The expression “forthwith” under Section 3(4), must be interpreted to

mean within reasonable time and without any undue delay. This would not mean

that the detaining authority has a period of twelve days to submit the report (with

grounds) to the State Government from the date of detention. The detaining

authority must furnish the report at the earliest possible. Any delay between the

date of detention and the date of submitting the report to the State Government,

must be due to unavoidable circumstances beyond the control of the authority

and not because of administrative laxity.

17. In the present case, the District Magistrate submitted the report to the

State Government on the fifth day (17 July 2017), after the date of the detention

order (12 July 2017). The reason for the delay of five days is neither mentioned

in the State Government’s order confirming the detention order, nor in the

9

impugned judgment. It was for the District Magistrate to establish that he had

valid and justifiable reasons for submitting the report five days after passing the

order of detention. As the decision in Joglekar holds, the issue is whether the

report was sent at the earliest time possible or whether the delay in sending the

report could have been avoided. Moreover, as the decision in Salim holds,

there should be no laxity in reporting the detention to the government. Whether

there were administrative exigencies which justify the delay in sending the

reports must be explained by the detaining authority. In the present case, as

we shall explain, this was a matter specifically placed in issue before the High

Court. The District Magistrate offered no explanation. This would vitiate the

order of detention.

18. In paragraph 7.1 of the Writ Petition before the High Court, the following

ground was specifically raised:

“7.1 That, it is humbly submitted that on the perusal of the

approval order (Annexure A/3) it transpires that the

Respondent No.2 failed to report the fact of detention of the

detenu to the Respondent No.1 forthwith, rather, he reported

after a lapse of 5 (five) days i.e. in violation of section 3(4) of

the Act. Thus, the impugned detention order (Annexure-N/1) is

bad in law and liable to be vitiated for non-compliance of

Section 3(4) of the Act.”

The affidavit in opposition filed by the District Magistrate contains the following

response to paragraph 7.1 of the petition:

“9. That, with reference to para No.7.1 of the Writ Petition, I

beg to state that as the 16-07-2017 is Sunday, the grounds of

10

detention was served to the detenu on 17-07-2017. There is no

violation of the National Security Act, 1980.”

It is evident, that there was no traverse to the submission that the act of reporting

the detention after five days was in violation of Section 3(4). The District

Magistrate did not furnish any reason whatsoever for having taken five days to

report the detention to the state government. Paragraph 9 of the counter

contains a reference to the service of the grounds of detention to the detenu.

There was no traverse of the ground taken in paragraph 7.1. No justification

was sought to be established for the delay in reporting the detention to the state

government.

19 In the circumstances, we allow the appeal and set aside the impugned

judgment and order of the High Court dismissing the Writ Petition. In

consequence, the order of detention shall stand set aside. The appeal is

accordingly allowed.

…………………………………….CJI

[DIPAK MISRA]

…………………………………….J

[A M KHANWILKAR]

…………………………………….J

[Dr D Y CHANDRACHUD]

New Delhi;

July 20, 2018