Research › Search › Judgment

Manipur High Court · body

2018 DIGILAW 8 (MAN)

Hetchin Haokip v. State of Manipur

2018-04-03

KH.NOBIN SINGH, N.KOTISWAR SINGH

body2018
JUDGMENT : N. Kotiswar Singh, J. Heard Ph. Sanajaoba, learned counsel for the petitioner. Heard also Mr. Vashum, learned Government Advocate for the State respondents, and Mr. S. Samarjeet, learned CGC for the Union of India. 2. Though several grounds in challenging the impugned detention order have been raised in this petition, Mr. Sanajaoba, learned counsel for the petitioner, has confined himself to only one ground, namely, that provisions of section 3(4) of the National Security Act, 1980 have been violated, as there had been a failure on the part of the detaining authority to "forthwith" report the fact of detention to the State Government. 3. Mr. Sanajaoba, learned counsel for the petitioner, submits that the detention order was issued on 12.7.2017. However, as evident from the approval order dated 20.7.2017, the District Magistrate submitted the report on the detention vide letter dated 17.7.2017, thus after 5 (five) days of the passing of the detention order. He submits that the mandate of law as provided under section 3(4) of the National Security Act, 1980 is that the detaining authority is to "forthwith" report to the State Government of such detention and thus the delay 5 (five) days in reporting to the State Government is in violation of the said provision and hence, the impugned detention order is liable to be quashed on this ground alone. 4. He submits that "forthwith" means immediately. In support of his contention, he has referred to the decision of the Hon'ble Gauhati High Court in Yumnam Brojen Singh @ Kunjo @Boss v. Distrct Magistrate, Bishnupur and ors., 2003 (3) GLT 60 in which it was heldthat submission of report with delay of 4 days was fatal in absence of a satisfactory explanation for the same. Learned counsel for the petitioner also submits that there must be meticulous compliance with the procedural safeguards, however, technical, these may be failing which, the detention order will be vitiated, in connection with which, he relied on the decision of the Gauhati High Court in Sansam Irabanta Singh v. State of Manipur, 2009 (3) GLT 595. 5. Section 3 (4) reads as follows: "3. 5. Section 3 (4) reads as follows: "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 defence of India, the relations of India with foreign powers, of the security of India, or (b) if satisfied with respect of 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 an 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. What the aforesaid provision under sub-section (4) of Section 3 provides is that, the factum of detention must be reported to the State Government "forthwith", along with the grounds on the basis of which the order has been made and such other particulars which have a bearing on the matter. What is to be noted is that the report must be submitted together with the grounds on which the detention order was made. The requirement is not merely reporting of the detention only. Such reporting must be along with the grounds on which the detention order was issued. In other words, the reporting is not mere reporting of the detention but reporting along with the grounds for detention. 7. In this context, it may be apposite to refer to requirement of furnishing of grounds of detention to the detenue. Such reporting must be along with the grounds on which the detention order was issued. In other words, the reporting is not mere reporting of the detention but reporting along with the grounds for detention. 7. In this context, it may be apposite to refer to requirement of furnishing of grounds of detention to the detenue. Law permits furnishing of the grounds of detention within 5(five) days as provided under Section 8 of the Act. Section 8 reads as follows: "8. Grounds of order of detention to be disclosed to persons 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 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 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." 8. We are of the view that keeping in mind the scheme of the Act, the word "forthwith" found in Section 3(4) has to be understood with reference to other provisions of the Act. If under Section 8 of the Act, the grounds of detention are permissible to be furnished to the detenue within 5(five) days, it would also be permissible to report to the State Government within 5(five) days, as the report has to be submitted to the State Government along with the grounds of detention and other particulars. The purpose of submitting the report to the State under Section 3(4) is only to enable the State to decide whether to approve or not to approve the detention order within a period of 12/15 days. Read independently and in isolation, these provisions of the Act, would lead to an anomalous situation. The purpose of submitting the report to the State under Section 3(4) is only to enable the State to decide whether to approve or not to approve the detention order within a period of 12/15 days. Read independently and in isolation, these provisions of the Act, would lead to an anomalous situation. While furnishing grounds of detention to a detenue within 5(five) days (which may be extended to 10 days with reasons to be recorded in writing) under Section 8 of the Act will be permissible, it would not be permissible to do so if the report is to be submitted along with the grounds of detention under Section 3(4) "forthwith" or "immediately" as the petitioner would contend. What the petitioner contends is that the report along with the grounds of detention must be submitted to the State Government immediately, which would mean that the detaining authority has to submit also the grounds of detention forthwith/immediately though it may be permissible not to furnish the grounds of detention-immediately to the detenue but within 5/10 days as the case may be. It creates a situation, where the detaining authority would be required to furnish the report together with the grounds of detention forthwith and immediately to the State Government under Section 3(4) but the detenue can be furnished with the grounds of detention within 5(five) days under section 8 of the Act. This Court is of the view that such a situation is never contemplated by law. Furnishing of grounds of detention to the detenue is equally important if not more as furnishing the same to the State Government. In fact, any delay in furnishing the grounds of detention beyond 5 days unless, exceptional circumstances exist which have to be recorded in writing, may render the detention order illegal. The purpose of furnishing the grounds of detention to the detenue under Section 8at the earliest is to make the detenue aware of the reasons for detention so that he may move the appropriate authorities and submit his representations for his release as also mandated under Article 22(5) of the Constitution. On the other hand, the purpose for reporting to the State government of the detention along with the grounds of detention under Section 3(4) is merely to enable the State government to decide whether to approve the detention or not within a period of 12 days of the detention. On the other hand, the purpose for reporting to the State government of the detention along with the grounds of detention under Section 3(4) is merely to enable the State government to decide whether to approve the detention or not within a period of 12 days of the detention. There is no provision which states that before approving the detention order, the State Government has to give an opportunity to the detenue a right of hearing. The State government may within 12 days may or may not approve the detention order on receipt of the report along with the ground. If not approved within 12 days, the detenue may be liable to be released. Thus the reason for furnishing grounds of detention as contemplated under Section 3(4) and Section 8 are for those specific purposes, but these are closely related. While the delay in furnishing grounds of detention under Section 8 of the Act may prejudice the right of the detenue as guaranteed under Article 22(5) of the Constitution, furnishing of the grounds of detention under Section 3(4) may not prejudice the detenue so long as the report along with the grounds of detention are furnished within a reasonable time, but certainly within 12 days of the detention so that the State Government may issue necessary order about the approval of the detention within that period of 12 days. 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 approve or not to approve the detention order under Section 3(4) of the Act. 9. It may be noted that provisions under Section 8 contains a very important safeguard against arbitrary detention by ensuring that the detenue is informed of the grounds of his detention at the earliest. This is to enable the detenue to not only know why he has been detained but to enable him to submit his representation to the competent authority against such detention, as part of the Constitutional guarantee as contained in sub-clause (5) of Article 22 of the Constitution. 10. This is to enable the detenue to not only know why he has been detained but to enable him to submit his representation to the competent authority against such detention, as part of the Constitutional guarantee as contained in sub-clause (5) of Article 22 of the Constitution. 10. We are of the view that the provisions of section 3(4) of the National Security Act, 1980 is to be understood in the context of the broad scheme of the Act, to ensure that the rights of the detenue are properly safeguarded qua the duties and responsibilities of the detaining authority/State. 11. In view of the position we have taken, we hold that the decision in Yumnam Brojen Singh (supra) as well as in Sansam Irabanta Singh(supra) may not be applicable in the present case, as the said decisions were rendered without reference to other related provisions of the Act, namely, Section 8 or the requirement of furnishing the grounds of detention along with the report. In our opinion, the scope of Section 3(4) has to be understood in the context of the entire scheme of the Act and not in isolation. 12. Accordingly, we hold that the submissions of the petitioner are without basis. Resultantly, the present petition is dismissed.