IMPORTANT POINT
“Forthwith” does not mean instantaneous but without undue delay and within reasonable time. Unexplained delay vitiates detention.

JUDGMENT

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.

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 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 sub-section (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