Holding

"Forthwith" under Section 3(4) of the National Security Act means without undue delay and at the earliest possible time; failure to justify a delay vitiates the detention order.

Summary

The appellant was detained under the National Security Act, 1980 on 12 July 2017, and the District Magistrate reported the detention to the State Government only on 17 July 2017, a five‑day delay. The petitioner challenged the detention on the ground that the report was not made "forthwith" as required by Section 3(4) of the Act. The Manipur High Court held that a report furnished within twelve days would not prejudice the detenu and dismissed the writ. The Supreme Court clarified that "forthwith" does not mean instantaneous but requires reporting without undue delay and at the earliest possible time, and any delay must be justified by unavoidable circumstances. Since the District Magistrate offered no explanation for the five‑day delay, the reporting requirement was deemed violated, vitiating the detention order. Consequently, the appeal was allowed and the order of detention was set aside.

Issues considered

Whether a delay of five days in reporting a detention order to the State Government violates the requirement of "forthwith" under Section 3(4) of the National Security Act, 1980.

Legislation cited

Arms Act, 1959s. 25(1-C)
Indian Penal Code, 1860s. 400
National Security Act, 1980s. 3(4), s. 8

Subjects

National Security Actpreventive detentionforthwithreporting requirementstrict constructionadministrative delay

Judgment

[2018] 6 S.C.R. 597 597

HETCHIN HAOKIP A
v.
STATE OF MANIPUR AND ORS.
(Criminal Appeal No. 911 of 2018)
JULY 20, 2018 B
[DIPAK MISRA, CJI, A. M. KHANWILKAR AND
DR. D. Y. CHANDRACHUD, JJ.]
National Security Act, 1980 – s.3(4) – Power to make orders
detaining certain persons – Detention order against detenu – District
C
Magistrate reporting the detention to the State Government on the
fifth day, after the detention order – Challenge to, on the ground of
failure of the detaining authority to report the detention to State
Government ‘forthwith’ as provided u/s. 3(4) – High Court held
that as long as the report to the State Government is furnished within
twelve days of detention, it would not prejudice the detenu – On D
appeal, held: Expression ‘forthwith’ u/s. 3(4) must be interpreted to
mean reasonable time and without any undue delay – There should
be no laxity in reporting the detention to the Government – On facts,
the District Magistrate offered no explanation for submitting the
report to the State Government five days after passing the order of
E
detention – This vitiated the order of detention – Thus, the order of
the High Court set aside.
The issue before this Court is whether the provisions of
Section 3(4) of the National Security Act, 1980, requiring the
detaining authority to report the detention to the State
F
Government ‘forthwith,’ have been violated.
Allowing the appeal, the Court
HELD: 1.1 “Forthwith,” under Section 3(4) of the National
Security Act, 1980 does not mean instantaneous, but without
undue delay and within reasonable time. Whether the authority G
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. [Para 13] [604-A-B]

H
597
598 SUPREME COURT REPORTS [2018] 6 S.C.R.

A 1.2 The High Court was not correct in holding that as long
as the report to the State Government is furnished within twelve
days of detention, it would 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
B
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. [Para 15] [604-F]
1.3 The detaining authority must furnish the report at the
earliest possible. Any delay between the date of detention and the
C 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. [Para 16]
[605-A-B]
1.4 In the instant case, the District Magistrate submitted
D 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
impugned judgment. It was for the District Magistrate to
E 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
F 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
instant case, the District Magistrate offered no explanation. This
would vitiate the order of detention. [Para 17] [605-B-E]
G 1.5 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. There was no
H traverse of the ground taken. No justification was sought to be
HETCHIN HAOKIP v. STATE OF MANIPUR AND ORS. 599

established for the delay in reporting the detention to the state A
government. The impugned judgment and order of the High Court
dismissing the Writ Petition is set aside. [Paras 18-19]
[606-A-C]
**S.K. Salim v. State of West Bengal (1975) 1 SCC
653 : [1975] 3 SCR 394 – relied on. B
*Keshav Nilkanth Joglekar v. The Commissioner of
Police, Greater Bombay [1956] SCR 653 ; Bidya Deb
Barma v. D.M. Tripura, Agartala [1969] 1 SCR 562
– referred to.
Case Law Reference C

[1956] SCR 653 referred to Para 10
[1969] 1 SCR 562 referred to Para 11
[1975] 3 SCR 394 relied on Para 17
D
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 911 of 2018.
From the Judgment and Order dated 03.04.2018 of the High Court
of Manipur at Imphal in W.P. (Crl.) No. 43 of 2017.
Pukhrambam Ramesh Kumar, P. H. Sanjaoba, Leishangthem
E
Roshmani 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 Division
Bench of the Manipur High Court, at Imphal, dated 3 April 2018 in Writ F
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
G
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
H
600 SUPREME COURT REPORTS [2018] 6 S.C.R.

A 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
B
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
C 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’
D 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
E 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
F (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
G
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) ..
H
HETCHIN HAOKIP v. STATE OF MANIPUR AND ORS. 601
[DR. D.Y. CHANDRACHUD, J.]

(3)... A
(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, B
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- C
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 maybe,” but not later than D
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 the detenu the
earliest opportunity to make a representation against the detention order, E
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, but F
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
G
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.”

H
602 SUPREME COURT REPORTS [2018] 6 S.C.R.

A 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
B
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
C 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 not approve the order
D 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
E 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.
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 the
context of statutes providing for preventive detention. In Keshav
G 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)
1
1956 SCR 653
H
HETCHIN HAOKIP v. STATE OF MANIPUR AND ORS. 603
[DR. D.Y. CHANDRACHUD, J.]

with Section 7 (equivalent to Section 8 of the Act). It observed that A
“forthwith” is different from “as soon as may be” in that, under Section
7 the time 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
B
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) C

11. In Bidya Deb Barma v D.M. Tripura, Agartala 2, 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 D
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, E
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 F
not require for its compliance a follow-up action at the split-second
when the order of detention is made. There ought to be 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. G
Administrative exigencies may on occasions render a post-haste
compliance impossible and therefore a reasonable allowance has
to be made for unavoidable delays.”
2
1969 (1) SCR 562
3
(1975) 1 SCC 653 H
604 SUPREME COURT REPORTS [2018] 6 S.C.R.

A 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
B
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:
C
“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
D 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
E approve 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 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
F 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
G 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
H
HETCHIN HAOKIP v. STATE OF MANIPUR AND ORS. 605
[DR. D.Y. CHANDRACHUD, J.]

the date of detention. The detaining authority must furnish the report at A
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 B
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 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 C
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 D
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.
E
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 F
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 G
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 detention
was served to the detenu on 17-07-2017. There is no violation of
the National Security Act, 1980.”
H
606 SUPREME COURT REPORTS [2018] 6 S.C.R.

A 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
B
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.
C The appeal is accordingly allowed.

Nidhi Jain Appeal allowed.

D

E

F

G

H