HETCHIN HAOKIP versus STATE OF MANIPUR AND ORS. on 20 July 2018

HETCHIN HAOKIP

v.

STATE OF MANIPUR AND ORS.

(Criminal Appeal No. 911 of 2018)

JULY 20, 2018

[DIPAK MISRA, CJI, A. M. KHANWILKAR ANDDR. D. Y. CHANDRACHUD, JJ.]

National Security Act, 1980 – s.3(4) – Power to make ordersdetaining certain persons – Detention order against detenu – DistrictMagistrate reporting the detention to the State Government on thefifth day, after the detention order – Challenge to, on the ground offailure of the detaining authority to report the detention to StateGovernment ‘forthwith’ as provided u/s. 3(4) – High Court heldthat as long as the report to the State Government is furnished withintwelve days of detention, it would not prejudice the detenu – Onappeal, held: Expression ‘forthwith’ u/s. 3(4) must be interpreted tomean reasonable time and without any undue delay – There shouldbe no laxity in reporting the detention to the Government – On facts,the District Magistrate offered no explanation for submitting thereport to the State Government five days after passing the order ofdetention – This vitiated the order of detention – Thus, the order ofthe High Court set aside.

The issue before this Court is whether the provisions ofSection 3(4) of the National Security Act, 1980, requiring thedetaining authority to report the detention to the StateGovernment ‘forthwith,’ have been violated.

Allowing the appeal, the Court

HELD: 1.1 “Forthwith,” under Section 3(4) of the NationalSecurity Act, 1980 does not mean instantaneous, but withoutundue delay and within reasonable time. Whether the authoritypassing the detention order reported the detention to the StateGovernment within reasonable time and without undue delay, isto be ascertained from the facts of the case. [Para 13] [604-A-B]

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A1.2 The High Court was not correct in holding that as longas the report to the State Government is furnished within twelvedays of detention, it would not prejudice the detenu. It is settledlaw that a statute providing for preventive detention has to beconstrued strictly. While “forthwith” may be interpreted to meanwithin reasonable time and without undue delay, it certainly shouldBnot be laid down as a principle of law that as long as the report tothe State Government is furnished within 12 days of detention, itwill not prejudice the detenu. [Para 15] [604-F]

1.3 The detaining authority must furnish the report at theearliest possible. Any delay between the date of detention and theCdate of submitting the report to the State Government, must bedue to unavoidable circumstances beyond the control of theauthority and not because of administrative laxity. [Para 16][605-A-B]

1.4 In the instant case, the District Magistrate submittedDthe report to the State Government on the fifth day (17 July 2017),after the date of the detention order (12 July 2017). The reasonfor the delay of five days is neither mentioned in the StateGovernment’s order confirming the detention order, nor in theimpugned judgment. It was for the District Magistrate toEestablish that he had valid and justifiable reasons for submittingthe report five days after passing the order of detention. As thedecision in *Joglekar holds, the issue is whether the report wassent at the earliest time possible or whether the delay in sendingthe report could have been avoided. Moreover, as the decisionin **Salim holds, there should be no laxity in reporting theFdetention to the Government. Whether there wereadministrative exigencies which justify the delay in sending thereports must be explained by the detaining authority. In theinstant case, the District Magistrate offered no explanation. Thiswould vitiate the order of detention. [Para 17] [605-B-E]

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1.5 It is evident, that there was no traverse to thesubmission that the act of reporting the detention after five dayswas in violation of Section 3(4). The District Magistrate did notfurnish any reason whatsoever for having taken five days toreport the detention to the state government. There was noHtraverse of the ground taken. No justification was sought to be A

established for the delay in reporting the detention to the stategovernment. The impugned judgment and order of the High Courtdismissing the Writ Petition is set aside. [Paras 18-19][606-A-C]

**S.K. Salim v. State of West Bengal (1975) 1 SCC653 : [1975] 3 SCR 394 – relied on.

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*Keshav Nilkanth Joglekar v. The Commissioner ofPolice, Greater Bombay [1956] SCR 653 ; Bidya DebBarma v. D.M. Tripura, Agartala [1969] 1 SCR 562

– referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 911 of 2018.

From the Judgment and Order dated 03.04.2018 of the High Courtof Manipur at Imphal in W.P. (Crl.) No. 43 of 2017.

Pukhrambam Ramesh Kumar, P. H. Sanjaoba, LeishangthemERoshmani Kh, Ms. Maibam Babina, Advs. for the appearing parties.

The Judgment of the Court was delivered by DR. D.Y. CHANDRACHUD, J. 1. Leave granted.

2. These proceedings have arisen from the judgment of a DivisionBench of the Manipur High Court, at Imphal, dated 3 April 2018 in WritPetition (Crl.) No 43 of 2017. The question before the High Court waswhether the provisions of Section 3(4) of the National Security Act,1980, requiring the detaining authority to report the detention to the StateGovernment ‘forthwith,’ have been violated. The High Court recordedthat this was the only issue which formed the subject of the challenge tothe order of preventive detention.

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3. The brief facts of the case are as follows. The appellant’shusband, Jangkhohao Khongsai, with two others, was arrested by thepolice on 30 May 2017, and charged with offences under Section 400 ofthe I.P.C. and Section 25(1-C) of the Arms Act, 1959, allegedly for H

Abeing a member of the cadre of the KLA organization, and forpossession 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 17July 2017, the District Magistrate served the detenu with the groundsfor his detention. On 20 July 2017, the Government of Manipur approvedBthe order of detention.

4. The appellant filed a writ petition before the Manipur HighCourt, challenging the order of detention. The appellant’s contention wasthat the District Magistrate failed to report the detention to the StateGovernment “forthwith,” as provided under Section 3(4) of the Act. TheCDistrict Magistrate – it was urged - reported the detention after a lapseof five days, which violated Section 3(4).

5. Section 3(4) of the Act provides that when a detention order ismade by a District Magistrate or a Commissioner of Police underSection 3(3) of the Act, the Magistrate/Commissioner shall ‘forthwith’Dreport the fact of the detention order to the State Government, alongwith the grounds on which the order was made, and any other relevantfacts. It also states that no detention order shall remain in force for morethan twelve days after making the order, unless it has been approved bythe State Government. The proviso to Section 3(4) states that, if theEgrounds for detention under Section 8 are communicated to the detenuafter five days, but not later than ten days from the date of detention, thewords ‘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 F(1) The Central Government or the State Government may,-(a) if satisfied with respect to any person that with a view topreventing him from acting in any manner prejudicial to thedefense of India, the relations of India with foreign powers, or thesecurity of India, or

(b) if satisfied with respect to any foreigner that with a view toGregulating his continued presence in India or with a view tomaking arrangements for his expulsion from India,it is necessary so to do, make an order directing that such personbe detained.

(2) ..H

HETCHIN HAOKIP v. STATE OF MANIPUR AND ORS.[DR. D.Y. CHANDRACHUD, J.]

(3)...

(4) When any order is made under this section by anofficer mentioned in sub-section (3), he shall forthwith report thefact to the State Government to which he is subordinate togetherwith the grounds on which the order has been made and suchother particulars as, in his opinion, have a bearing on the matter,and no such order shall remain in force for more than twelve daysafter the making thereof unless, in the meantime, it has beenapproved by the State Government:

Provided that where under section 8 the grounds of detentionare communicated by the officer making the order after five daysbut 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 tocommunicate, to the detenu, the grounds for his detention. Thiscommunication has to be made “as soon as maybe,” but not later thanfive days from the date of detention, in ordinary circumstances, and notlater than ten days from the date of detention, in exceptionalcircumstances (with reasons to be recorded in writing for the delay).The section also requires the detaining authority to give the detenu theearliest 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 per-sons 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, butordinarily not later than five days and in exceptional circumstancesand for reasons to be recorded in writing, not later than ten daysfrom the date of detention, communicate to him the grounds onwhich the order has been made and shall afford him the earliestopportunity of making a representation against the order to theappropriate Government.

(2) Nothing in sub-section (1) shall require the authority to disclosefacts which it considers to be against the public interest to disclose.”

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A7. The question before the High Court was whether the act of theMagistrate, 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 delayof five days by the Magistrate, in reporting the detention to the StateBGovernment, vitiates the detention.

8. The High Court dismissed the writ petition, holding that thescope of Section 3(4) has to be understood according to the scheme ofthe 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 detentionChas to be submitted along with the grounds for the detention. ComparingSections 3(4) and 8, the High Court reasoned that the purpose of sendingthe report (with grounds) to the State Government under Section 3(4), isto enable the State Government to decide whether or not to approve theorder of detention. If the State government does not approve the orderDof detention within twelve (or fifteen) days, it will lapse anyway. On theother hand, the purpose of Section 8 is more sacrosanct, as it is to makethe detenu aware of the reasons for his detention and make arepresentation to the authorities for release. The requirement underSection 8 was held to stand on a higher pedestal than the one underSection 3(4). If Section 3(4) was interpreted in isolation, it would meanEthat, while the authority can furnish the grounds of detention to the detenuwithin five days (or in exceptional circumstances, ten days), it must furnishthe report with grounds to the State Government immediately, orinstantaneously. According to the High Court, such an anomaly was notcontemplated under the law.F

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 thecontext of statutes providing for preventive detention. In KeshavGNilkanth Joglekar v The Commissioner of Police, GreaterBombay[1], a Constitution Bench of this court interpreted Section 3(3) ofPreventive Detention Act, 1950 [now repealed], which was similar toSection 3(4) of the Act. The court compared the text of Section 3(3)

11956 SCR 653H

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 Section7 the time permitted is “what is reasonably convenient,” whereas underSection 3(3), only that period of time is allowed, where the authoritycould not, without its own fault, send the report. The court laid down thefollowing test for determining whether the action of the authority wascompliant with the “forthwith” requirement:

“Under section 3(3) it is whether the report has been sent at theearliest point of time possible, and when there is an interval oftime 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, Agartala[2], aConstitution Bench of this court held that:

“When a statute requires something to be done ‘forthwith,’ or‘immediately’ or even ‘instantly,’ it should probably be understoodas allowing a reasonable time for doing it.”

12. In S.K. Salim v State of West Bengal[3], a two judge Benchof this court observed that laws of preventive detention must beconstrued with the greatest strictness. However, the rule of strictinterpretation 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 InternalSecurity Act, 1971 (which is equivalent to Section 3(4) of the Act). TheCourt held that:

“…the mandate that the report should be made forthwith doesnot require for its compliance a follow-up action at the split-secondwhen the order of detention is made. There ought to be no laxityand laxity cannot be condoned in face of the command that thereport shall be made forthwith. The legislative mandate, however,cannot be measured mathematically in terms of seconds, minutesand hours in order to find whether the report was made forthwith.Administrative exigencies may on occasions render a post-hastecompliance impossible and therefore a reasonable allowance hasto be made for unavoidable delays.”

21969 (1) SCR 562

3(1975) 1 SCC 653

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A13. From the above cases, the position that emerges isthat “forthwith,” under Section 3(4), does not mean instantaneous, butwithout undue delay and within reasonable time. Whether the authoritypassing the detention order reported the detention to the State Governmentwithin reasonable time and without undue delay, is to be ascertainedfrom the facts of the case. In Joglekar, there was a delay of eight daysBby the Police Commissioner, in sending the report to the StateGovernment. However, the court found that the reasons for the delaywere reasonable, since the Commissioner and his team were occupiedin maintaining law and order during a particularly tense time in Mumbai.

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

“While the delay in furnishing grounds of detention under Section8 of the Act may prejudice the right of the detenu as guaranteedunder Article 22(5) of the Constitution, furnishing of the groundsof detention under Section 3(4) may not prejudice the detenu solong as the report along with the grounds of detention areDfurnished within a reasonable time, but certainly within 12 days ofthe detention…If the report along with the grounds of detention issubmitted beyond 12 days, it would certainly vitiate the detentionorder as without the report and the grounds of detention, the StateGovernment could not have applied their minds whether toEapprove or not to approve the detention order under Section 3(4)of the Act.”

15. The High Court is not correct in holding that as long as thereport to the State Government is furnished within twelve days ofdetention, it will not prejudice the detenu. It is settled law that a statuteFproviding for preventive detention has to be construed strictly. While“forthwith” may be interpreted to mean within reasonable time and withoutundue delay, it certainly should not be laid down as a principle of law thatas long as the report to the State Government is furnished within 12 daysof detention, it will not prejudice the detenu. Under Section 3(4), theState Government is required to give its approval to an order of detentionGwithin twelve, or as the case may be, fifteen days.

16. The expression “forthwith” under Section 3(4), must beinterpreted to mean within reasonable time and without any undue delay.This would not mean that the detaining authority has a period of twelvedays to submit the report (with grounds) to the State Government fromH

the date of detention. The detaining authority must furnish the report atthe earliest possible. Any delay between the date of detention and thedate of submitting the report to the State Government, must be due tounavoidable circumstances beyond the control of the authority and notbecause of administrative laxity.

17. In the present case, the District Magistrate submitted thereport to the State Government on the fifth day (17 July 2017), after thedate of the detention order (12 July 2017). The reason for the delay offive days is neither mentioned in the State Government’s orderconfirming the detention order, nor in the impugned judgment. It was forthe District Magistrate to establish that he had valid and justifiablereasons for submitting the report five days after passing the order ofdetention. As the decision in Joglekar holds, the issue is whether thereport was sent at the earliest time possible or whether the delay insending the report could have been avoided. Moreover, as the decisionin Salim holds, there should be no laxity in reporting the detention to thegovernment. Whether there were administrative exigencies whichjustify the delay in sending the reports must be explained by thedetaining authority. In the present case, as we shall explain, this was amatter specifically placed in issue before the High Court. The DistrictMagistrate offered no explanation. This would vitiate the order ofdetention.

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 theapproval order (Annexure A/3) it transpires that the RespondentNo.2 failed to report the fact of detention of the detenu to theRespondent 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, theimpugned detention order (Annexure-N/1) is bad in law and liableto be vitiated for non-compliance of Section 3(4) of the Act.”

The affidavit in opposition filed by the District Magistrate containsthe following response to paragraph 7.1 of the petition:

“9. That, with reference to para No.7.1 of the Writ Petition, I begto state that as the 16-07-2017 is Sunday, the grounds of detentionwas served to the detenu on 17-07-2017. There is no violation ofthe National Security Act, 1980.”

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AIt is evident, that there was no traverse to the submission that theact of reporting the detention after five days was in violation of Section3(4). The District Magistrate did not furnish any reason whatsoever forhaving taken five days to report the detention to the state government.Paragraph 9 of the counter contains a reference to the service of thegrounds of detention to the detenu. There was no traverse of the groundBtaken in paragraph 7.1. No justification was sought to be established forthe delay in reporting the detention to the state government.

19. In the circumstances, we allow the appeal and set aside theimpugned judgment and order of the High Court dismissing the WritPetition. In consequence, the order of detention shall stand set aside.CThe appeal is accordingly allowed.

Nidhi Jain

Appeal allowed.

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