Yumnam Thoibi @Sanathoi Singh v. District Magistrate, Imphal West & Ors.
2011-10-25
N.KOTISWAR SINGH, T.NANDAKUMAR SINGH
body2011
DigiLaw.ai
T.NK. Singh, J.- Heard Mr.Darakishcre, learned counsel for the petitioner-detenu, Mr.R.S.Reisang, learned GA appearing for respondent Nos. 1 and 2 as well as Mr.AmarjitNaorem, learned CGSC for respondent No.3. 2. Only the facts sufficient for deciding the present writ petition is briefly noted. On 18.11.2010 by a team of CDO/IW arrested the petitioner-detenu and handed over to the Officer-in-Charge, Imphal, Police Station with the written report. The O/C Imphal P.S on registration of regular case i.e. FIRNo.511(11)2010 under Section 17/20 UA (P) A Act arrested the petitioner-detenu. For that FIR the petitioner-detenu was produced before the Chief Judicial Magistrate, Imphal West who remanded the petitioner-detenu to police custody till 27.11.2010. On 27.11.2010 while the petitioner was in police custody in connection with the said case, copy of the impugned detention order dated 27.11.2010 was furnished to the petitioner. By the impugned detention order the petitioner-detenu had been detained under the NSA and in the impugned order it is clearly stated that the petitioner-detenu, who is now in police custody is likely to be released on bail in near future by the normal criminal courts as bails are granted in similar cases by the criminal courts. The impugned detention order dated 27.11.2010 had been approved by the State Government vide order being No.17(1)241/2010-H dated 07.12.2010. For easy reference, the approval order is quoted hereunder: "Government of Manipur Secretariat: Home Department ORDERS Imphal, the 7th December, 2010 No.17(1)241/2010-H: Whereas the District Magistrate, Imphal West District, Manipur under Section 3(3) of the National Security Act, 1980 (hereinafter referred to as the said Act), vide No.Cril/NSA/No. 122 of 2010 dated 27.11.2010 made detention order detaining Shri Yumnam Thoibi Singh @ Sanathoi (22 yrs) s/o (L) Y.Birchandra Singh of Thanmnapokpi Awang Leikai P/S-Lamlai, District- Imphal East, Manipur (hereinafter referred to as the said person). And whereas, the District Magistrate, Imphal West District, Manipur has submitted report on the detention of the said person under section 3(4) of the said Act vide his letter No.Cril/NSA/No. 122 of 2010 dated 27.11.2010. Further the District Magistrate, Imphal West District, Manipur has furnished copy of grounds for detention of the said person under Section 3(2) of the said Act to the Government vide his letter No.CruYNSA/No. 122 of 2010 dated 30.11.2010.
Further the District Magistrate, Imphal West District, Manipur has furnished copy of grounds for detention of the said person under Section 3(2) of the said Act to the Government vide his letter No.CruYNSA/No. 122 of 2010 dated 30.11.2010. And whereas, the Governor of Manipur after having carefully considered grounds for detention furnished by the District Magistrate, Imphal West District, Manipur and being satisfied that his activities are prejudicial to the main-tenance of public order is also of the opinion that the grounds are sufficient for the detention of the said person under Section 3(2) of the said Act and that the order of detention aforesaid made by the District Magistrate, Imphal West District, Manipur under Section 3(3) of the said Act be approved. Now, therefore, in exercise of the powers conferred under Section 3(4) of the said Act, the Governor of Manipur is pleased to approve the order of detention passed by the District Magistrate, Imphal West District, Manipur under No.Cril/NSA/No.122 of 201U dated 27.11.2010. By orders & in the name of Governor, Sd/- (M.Yaiskul Meitei) Additional Secretary (Home) Government of Manipur." 3. Subsequently, the impugned order had been confirmed by the State Government vide confirmation order dated 31.12.2010 and fixed the period of detention for 12 (twelve) months from the date of detention. 4. In the present writ petition, the petitioner-detenu has assailed the impugned detention order on three grounds that: (1) the Detaining Authority had not fulfilled the requirements provided under Section 3(4) of the NSA; (2) the particulars of similar cases in which bails were granted by the criminal courts are not mentioned either in the im-pugned detention order or in the grounds of detention; and (3) in compliance of Section 10 of the NSA, the appropriate Government, i.e. State Government, did not, within three weeks from the date of detention, place the materials before the Advisory Board constituted under Section 9 of the NSA, 1980. 5. The Detaining Authority, i.e. respondent No. 1 filed affidavit in opposition. In the additional affidavit dated 19.08.2011 it is stated categorically that the following day of the impugned detention order dated 27.11.2010 i.e. 28.11.2010 was holiday and detention order dated 27.11.2010 was communicated or reported to the State Govern-ment on 29.11.2010 and grounds of detention along with relevant documents were furnished/communicated to the State Government on the next day i.e. 30.11.2010.
In the additional affidavit dated 19.08.2011 it is stated categorically that the following day of the impugned detention order dated 27.11.2010 i.e. 28.11.2010 was holiday and detention order dated 27.11.2010 was communicated or reported to the State Govern-ment on 29.11.2010 and grounds of detention along with relevant documents were furnished/communicated to the State Government on the next day i.e. 30.11.2010. In the additional affidavit, respondent No. 1 also categorically stated that the office of the Detaining Authority, i.e. respondent No. 1 was extremely busy throughout 29.11.2010 in taking steps for many NSA matters. However, it is fairly well settled that in a matter relating with the detention order, the Detaining Authority shall scrupulously follow the procedures prescribed for detention order. 6. For deciding the ground No.1, mentioned above, for assailing the impugned detention order, it is required to have a quick glance of Section 3(4) of the NSA, which read as follows: "Section 3(4) When any order is made under this section by an officer mentioned in subsection (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": 7. On careful perusal of Section 3(4) of the NSA it is crystal clear that the object and requirement of Section 3(4) are that the officer mentioned in sub-section (3) of Section 3 of the NSA, shall forthwith report the detention of the detenu to the State Government together with the grounds. It appears that the requirement of Section 3(4) of the NSA is that the report of the detention of the detenu and also the grounds of detention shall be submitted forthwith to the State Government, who is competent to take decision either to revoke the detention order or approve the detention order. 8. In the case in hand, detention of the petitioner-detenu under the impugned detention order dated 27.11.2010 was reported to the State Government on 29.11.2010 and grounds of detention to the State Government on 30.11.2010.
8. In the case in hand, detention of the petitioner-detenu under the impugned detention order dated 27.11.2010 was reported to the State Government on 29.11.2010 and grounds of detention to the State Government on 30.11.2010. It appears that there is delay of three days in reporting the detention of the detenu and also grounds of detention to the State Government. 9. Mr. Reisang, learned GA strenuously contended that the word "forthwith" mentioned in sub-section (4) of Section 3 of the NSA should be understood as allowing a reasonable time for doing it. He also further con-tendecl that the Apex Court in a catena of cases held that the court, while deciding the validity or otherwise of the detention order on the grounds of delay, the court is not concerned with the number of days' delay and what is concerned with the Court is whether there was reasonable explanation for the delay. Ln Reisang, learned GA in support of his contention placed heavy reliance on the decision of the Apex Court (Constitution Bench) in keshav Nilkant Joglekar Vs. The Commssioner of Policem Greater Bombay & Ors. 1957 SC 28 and Bidya Deb Barma etc Vs. District Magistrate, Tripura, Agartala : AIR 1969 SC 323 . Keshav Nilkanth Joglekar's case (supra) is a case under Preventive Detention Act, 1950. Subsection (3) of Section 3 of the Preventive Detention Act is parimateria with sub-section (4) of Section 3 of the NSA, 1980 inasmuch as under those sub-sections, the officer subordinate to the State Government, passing the detention order shall forthwith report the detention of the detenu together with the grounds of detention to the State Government. 10. The Constitution Bench in Keshav Nilkanth' Joglekar's case (supra) held that the word "forthwith" means that the act should be performed with reasonable speed and expedition and that any delay in the matter should be satisfactorily explained. Para 8 of the AIR in Keshav Nilkanth' Joglekar's case (supra) read as follows: "8.
10. The Constitution Bench in Keshav Nilkanth' Joglekar's case (supra) held that the word "forthwith" means that the act should be performed with reasonable speed and expedition and that any delay in the matter should be satisfactorily explained. Para 8 of the AIR in Keshav Nilkanth' Joglekar's case (supra) read as follows: "8. But it is argued by Mr.N.C.Chatterjee that the view taken in the above decisions as to the meaning of the word "forthwith" has been abandoned in the later decisions, and that under the law as it stands, when an act has to be performed forthwith in relation to another, what has to be decided is not whether it was done within a reasonable time, but whether it was done so closely upon the other as to form together one continuous act. He relied in support of this opinion on the decision in Re Muscovitch (1939) 1939-1 All ER135 (H), affirming that in Re Muscovitch (1938) 1938-4 All E R570 (I). That was a decision on Rule 132 of the Bankruptcy Rules, which provided that "Upon entering an appeal, a copy of the notice of appeal shall forthwith be sent by the appellant to the registrar of the court appealed from". The facts were that the appeal was lodged in time on 25.10.193 8 but the notice was served on 28.10.1938, and it was found that there was "no satisfactory reason or no reason at all, why there was any delay in the matter" (Re Muscovitch) (I). On that, it was held that the requisition that "the notice shall forthwith be sent" was not satisfied. This is authority only for the position that when an act is done after an interval of time and there is no explanation forthcoming for the delay, it cannot be held to have been done "forthwith".
On that, it was held that the requisition that "the notice shall forthwith be sent" was not satisfied. This is authority only for the position that when an act is done after an interval of time and there is no explanation forthcoming for the delay, it cannot be held to have been done "forthwith". This is made clear by Sir Wilfrid Greene M.R. in the following passage in (1939) 1939-1 All ER135 atp.139 (H)" "Having regard to the construction which was put upon the word 'forthwith' which is peremptory, and admits of no interval of time between the entry of the appeal and the sending of the appeal and the sending of the notice save such as may be imposed by circumstances which cannot be avoided, I find it impossible in the present case to say that the notice was sent forthwith within the meaning of the rule." Reliance is also placed for the petitioners on the decision in Ex parte Lamb: In re Southam (1881) 19 Ch.D. 169 (J) which was followed in Re Muscovitch (H). There, construing the word "forthwith" in Rule 144 of the Bankruptcy Rules, 1870, which corresponds to Rule 132, which was the subject of interpretation in Re Muscovitch (H), Jessel M.R.observed at page 173: "I think that the word 'forthwith' must be construed according to the circumstances in which it is used. Where, as in Hyde v Watts, (1843) 12 M & W 254 (K), there is a covenant to insure a man's life, there must of necessity be some delay, for the act could not be done in a moment. But where an act which is required to be done "forthwith" can be done without delay, it ought to be so done". In that case also, the learned Judges found that the delay was not explained. and the observation of Lush L.J. in the same case was that "the word 'forthwith' has not a fixed and an absolute meaning: it must be construed with reference to the objects of the rule and the circumstances of the case".
In that case also, the learned Judges found that the delay was not explained. and the observation of Lush L.J. in the same case was that "the word 'forthwith' has not a fixed and an absolute meaning: it must be construed with reference to the objects of the rule and the circumstances of the case". There is nothing in the decisions in (1939) 1939-1 All E R 135 (H) and(1881) 19Ch.D 169 (J) which can be consid-ered as marking a departure from the construction put on the word "forthwith" in the earlier authorities that it meant only that the act should be performed with reasonable speed and expedition, and that any delay in the matter should be satisfactorily explained." 11. The ratio laid down in Keshav Nilkanth' Joglekar's case (supra) by the Apex Court (Constitution Bench) had been followed by the Supreme Court in Bidya Deb Barma's case (supra). The Constitution Bench is of the view in Bidya Deb Barma's case (supra) that when a statute require that something shall be done 'forthwith' or 'immediately' or even 'instantly' it should probably be understood as allowing a reasonable time for doing it. The Apex Court was of further view that any delay in matters should be satisfactorily explained. Para 4 of the AIR in Bidya Deb Barma's case (supra) read as follows: "4. The order of detention in each case was made on the 9th February. The arrest and detention commenced from the 11th. The communication was on February 13. Section 3(3) of the Act lays down: "3.(1) The Central Government or the State Government may (a) ** ** ** ** (b) When any order is made under this Section [by an officer mentioned in sub-section (2)] 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 made after the commencement of the Preventive Detention (Second Amendment) Act, 1952, shall remain in force for more than twelve days after making thereof unless in the meantime it has been approved by State Government]". The question is whether the detention became illegal because 4 days were allowed to pass from the order of detention and 2 days from the date of arrest.
The question is whether the detention became illegal because 4 days were allowed to pass from the order of detention and 2 days from the date of arrest. The third sub-section quoted above uses the word 'forthwith'. Ex-plaining this word Maxwell in Interpretation of Statutes (Eleventh Edn) at p.341 observed as follows: "When a statute requires that something shall be done "forthwith" or "immediately" or even "instantly", it should probably be understood as allowing a reasonable time for doing it." The word 'forthwith' in Section 3(3) and the phrase 'as soon as may be' used in the fourth sub-section were considered in Keshav Nilkanth Joglekar v Commissioner of Police, Greater Bombay, 1956 SCR 653 at pp 658-660: AIR 1957 SC 28 at p.32. In that case the delay was of 8 days. Giving proper meaning to the expression it was observed: "We agree that 'forthwith' in Sec. 3(3) cannot mean the same thing as 'as soon as may be' in Section 7, and that the former is more peremptory than the latter. The difference between the two expressions lies, in our opinion, in this that while under Section 7 the time that is allowed to the authority to send the communication to the detenu is what is reasonably convenient, under Section 3(3) what is allowed is only the period during which he could not, without any fault of his own, send the report." The delay of 8 days was held explained thus: "What happened on the 16th and the following days are now matters of history. The great city of Bombay was convulsed in disorders, which are among the worst that this country has witnesses. The Bombay police had a most difficult task to perform in securing life and property and the authorities must have been working at high pressure in maintaining law and order. It is obvious that the Commissioner was not sleeping over the orders which he had passed or lounging supinely over them. The delay such as it is. is due to causes not of his making, but to causes to which the activities of the petitioners very largely contributed. We have no hesitation in accepting the affidavit, and we hold that the delay sending the report could not have been avoided by the Commissioner and that when they were sent by him, they were sent 'forthwith" within the meaning of Section 3(3) of the Act." 12.
We have no hesitation in accepting the affidavit, and we hold that the delay sending the report could not have been avoided by the Commissioner and that when they were sent by him, they were sent 'forthwith" within the meaning of Section 3(3) of the Act." 12. On conjoined reading of the ratios laid down in Keshav Nilkanth' Joglekar's case (supra) and Bidya Deb Barma's case (supra) we are of firm view that the word "forthwith' in sub-section (4) of Section 3 of the NSA may be understood in such a manner that something shall be done 'forthwith' or 'immediately' or even instantly, it should be probably understood as allowing a reasonable time for doing it. 13. Keeping in view of the ratios laid down by the Apex Court we have given our anxious considerations, if there is reasonable explanation for the delay of three days in submitting the report of detention of the present petitioner-detenu and grounds of detention to the State Government. In the affidavit in opposition as well as the additional affidavit filed by respondent No. 1 (the Detaining Authority) it is clearly stated that the next day of the detention order dated 27.11.2010 i.e. 28.11.2010 is holiday and throughout the opening day i.e. 29.10.2011, the office of the Detaining Authority was extremely busy because of many NSA matters dealing with maintenance of public order. The next following day i.e 30.11.2010, report of the detention of the petitioner-detenu and grounds of detention were furnished/reported to the State Government. In such circumstances we cannot persuade ourselves to accept the submission of Mr.Darakishore, learned counsel for the petitioner that in the present case there is non compliance of requirements provided under sub-section (4) of section 3 of the NSA. 14. Regarding the 2nd ground for assailing the impugned detention order, we also carefully perused the detention order dated 27.11.2010 and also the grounds of detention furnished to the petitioner-detenu by the Detaining Authority under letter dated 30.11.2010. On such perusal, it is crystal clear that the petitioner was earlier arrested in connection with FIR No.209(7)2009 PRT-PS under Section 17/20 UA (P) A Act, 04 & 6(1 -A) IWT Act; and he was released on bail by the normal criminal court. Subsequently the petitioner was again arrested in connection with FIR Case No.511(11)201 DIPS, under Section 17/20 of U.A(P) A Act.
Subsequently the petitioner was again arrested in connection with FIR Case No.511(11)201 DIPS, under Section 17/20 of U.A(P) A Act. In such circumstance, there is material for coming to the subjective satisfaction that the petitioner is likely to be released on bail as bails are granted in similar cases. The Apex Court in Pebam Ningol Mikoi Devi Vs. State of Manipur & Ors. : (2010) 9 SCC 618 held that there must be reasonable basis for corning to the subjective satisfaction of the Detaining Authority in particular point. In the instant case, there is material for coming to the subjective satisfaction that the petitioner-detenu is likely to be released on bail as bails are granted in similar cases. Para No.26 of the SCC in Mikoi's case (supra) reads as follows: "26. What emerges from these rulings is that, there must be a reasonable basis for the detention order, and there must be material to support the same. The Court is entitled to scrutinize the material relied upon by the authority in coming to its conclusion, and accordingly determine if there is an objective basis for the subjective satisfaction. The subjective satisfaction must be twofold. The detaining authority must be satisfied that the person to be detained is likely to act in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of the public order and the authority must be further satisfied that it is necessary to detain the said person in order to prevent from so drama." For the foregoing reasons, the 2nd ground for assailing the impugned detention order is not acceptable by law. 15. The third ground for assailing the impugned detention order that the State Government did not comply the requirements provided under Section 10 of the NS A. We have perused the relevant file of the State Government. On such perusal it is clear that in compliance of requirements under Section 10 of the NSA the State Government had placed all the materials relating with the detention of the petitioner-detenu before the Advisory Board on 09.12.2010. Over and above, respondent No.2, in his affidavit in opposition, clearly stated vide para 11 that in compliance of Section 10 of the NSA, required materials had been placed before the State Government on 09.12.2010 vide letter of the Additional Secretary (Home), Government of Manipur.
Over and above, respondent No.2, in his affidavit in opposition, clearly stated vide para 11 that in compliance of Section 10 of the NSA, required materials had been placed before the State Government on 09.12.2010 vide letter of the Additional Secretary (Home), Government of Manipur. Therefore, it appears from record and also from the affidavit in opposition of respondent No. 1 that the requirements under Section 10 of the NSA had been complied with in the present case. For the foregoing reasons, we are not able to persuade ourselves to interfere with the impugned detention order. Accordingly, this writ petition is devoid of merit and dismissed.