1. Challenge to a preventive detention order under Section 3(4) of the National Security Act, 1980, regarding the requirement to report detention to the State Government forthwith. (Para 2 , 3 )
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2018 Supreme(SC) 727
SUPREME COURT OF INDIA
DIPAK MISRA, CJI., A.M. KHANWILKAR, D.Y. CHANDRACHUD, JJ.
HETCHIN HAOKIP – Appellant
VERSUS
STATE OF MANIPUR AND ORS – Respondents
CRIMINAL APPEAL NO OF 2018 (Arising out of SLP (CRL.) No.3424 of 2018)
Decided On : 20-07-2018
IMPORTANT POINT
“Forthwith” does not mean instantaneous but without undue delay and within reasonable time. Unexplained delay vitiates detention.
Headnote:National Security Act, 1980 – Section 3(4) – “Forthwith” – Does not mean instantaneous – Means without undue delay and within reasonable time – Instantly, District magistrate reporting detention to State Government on fifth day – Reason of delay not mentioned either in State Government order or judgment of High Court – District Magistrate not offering any explanation – Detention vitiated. (Para 13, 16, 17)
(1956) 1 SCR 653; (1969) 1 SCR 562; (1975) 1 SCC 653 – Relied upon
Facts of the case:
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.
The appellant filed a writ petition before the High Court, challenging the order of detention.
The High Court dismissed the writ petition.
Finding of the Court:
Detention is vitiated.
Result: Appeal allowed.
Legal Category Hierarchy
Table of Contents
2. Whether reporting the detention to the State Government after five days violates the mandate to report forthwith under Section 3(4) of the National Security Act, 1980. (Para 4 , 7 )
3. The court analyzed the term forthwith, rejecting the notion that any report within twelve days is sufficient and emphasizing the need to justify delays due to unavoidable circumstances. (Para 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 )
4. Forthwith under Section 3(4) means within reasonable time and without undue delay, where any interval must be justified by unavoidable circumstances rather than administrative laxity. (Para 13 , 16 )
5. What is the legal interpretation of the term forthwith under Section 3(4) of the National Security Act, 1980?
The term does not mean instantaneous or split-second compliance, but rather reporting without undue delay and within a reasonable time. Any interval between the order and the report must be due to unavoidable circumstances beyond the authority's control and not administrative laxity. (Para 10 , 11 , 12 , 13 , 16 )
6. Does reporting a detention to the State Government within the twelve-day approval period satisfy the requirement to report forthwith?
No. While the State Government must approve the order within twelve or fifteen days, the detaining authority must report the detention at the earliest possible time. Reporting within twelve days does not automatically preclude a finding of undue delay or administrative laxity. (Para 14 , 15 , 16 )
7. Who bears the burden of justifying a delay in reporting a detention order to the State Government?
The detaining authority must establish that there were valid, justifiable reasons or administrative exigencies for the delay, ensuring the report was sent at the earliest possible time and that the delay could not have been avoided. (Para 10 , 17 , 18 )
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
