Need To Report Detention

Source: The Hitavada      Date: 30 Jul 2018 15:18:57










The District Magistrate submitted the report to State Government five days after detention without mentioning the reason. Thus the HC holds that there should be no laxity in reporting the detention to the Government. Whether there were administrative exigencies, which justify delay in sending the reports which must be explained by the detaining authority.

IN THE judgement of the case – Hetchin Haokip v. State of Manipur and Others, delivered on July 20, 2018, a 3-judge bench of the Supreme Court consisting of the CJI Dipak Misra, Justice A. M. Khanwilkar and Justice Dr. D.Y. Chandrachud, at the Supreme Court, have held that “the expression “forthwith” under Section 3(4) of the National Security Act, 1980, 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”.

The proceedings in this case arose from the judgement of a Manipur High Court division bench at Imphal, of April 3, 2018 in WP (Cr.) No. 43 of 2017. The question before the HC 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.

The appellant’s husband, Jangkhohao Khongsai, with two others, was arrested by police on May 30, 2017, and charged with offences under Section 400 of the IPC and Section 25(1-C) of the Arms Act,1959, allegedly for being a member of the cadre of the KLA organisation, and for possession of fire arms.On July 12, 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 July 17, 2017, the District Magistrate served the detenu with the grounds for his detention. On July 20, 2017, the Government of Manipur approved the order of detention.The appellant filed a writ petition before the Manipur HC challenging the order of detention.The HC 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 HC 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 the Section 3(4) and 8, the HC reasoned that the purpose of sending the reports (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 not approve the Order of detention within twelve (or fifteen) days, it will lapse anyway.The purpose of Section 8 is more sacrosanct.The Supreme Court examined the meaning of ‘forthwith’ in the context of statute providing for preventive detention. According its earlier decisions, the court had observed that the word ‘forthwith’ is different from ‘as soon as may be’ in that. It means “at the earliest point of time possible” excepting unavoidable delay, in sending the report, meaning thereby without undue delay and within reasonable time.

In the present case, the District Magistrate submitted the report to the State Government on the fifth day – July 12, 2017, after the date of the order of detention –July 12, 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 impugned judgement. 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 held in the decision – Keshav Nilkanth Joglekar v. The Commissioner of Police, Greater Bombay-1956(1) SCR 653, 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 held in the decision of the case – S. K. Salim v. State of West Bengal –(1975) 1 SCC 653, there should be no laxity in reporting the detention to the Government. Whether there were administrative exigencies, which justify delay in sending the reports must be explained by the detaining authority. In the present case, this was a matter specifically placed in issue before the Manipur High Court. The District Magistrate offered no explanation. This vitiates the order of detention.

In paragraph 7.1 of the writ petition in the High Court, this 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”.

In the affidavit in opposition filed by the District Magistrate, it was stated in reply to paragraph 7(1) of the petition that “ 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 detention were 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 taking 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.

In the circumstances, the Supreme Court has allowed the appeal and set aside the impugned judgement and order of the Manipur High Court dismissing the writ petition. In consequence, the order of detention stands set aside.