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PETITIONER: SALIM

       Vs.

RESPONDENT: STATE OF WEST BENGAL

DATE OF JUDGMENT27/01/1975

BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. BEG, M. HAMEEDULLAH GUPTA, A.C.

CITATION:  1975 AIR  602            1975 SCR  (3) 394  1975 SCC  (1) 653  CITATOR INFO :  C          1979 SC1945  (7)  E&D        1992 SC 847  (22)

ACT: Maintenance   of  Internal  Security  Act.   1971--Words   & phrases--Meaning   of   ’forthwith’--Non   application    of mind--Availability  of  alternative  remedy  of  prosecution whether invalidates detention.

HEADNOTE: The order of detention was passed against the petitioner  on 13-6-1972.   On 15th June the District  Magistrate  reported the fact of making the order to the State Government.  State Government approved the order on 21st June. It was contended by the appellant-. (1)  That the District Magistrate did not report the  making of  the  order "forthwith" as required by section  3(3)  and that the detention was, therefore, liable to be set aside. (2)  Since the State Government rejected the  representation on the very next day, it must be held. that it did not apply its mind to the representation. (3)  The petitioner could have been prosecuted for the  acts attributed to him and therefore could not be detained. Dismissing the petition, HELD  : Laws of Preventive Detention by which  subjects  are deprived  of their personal liberty without  the  safeguards available in a judicial trial ought to be construed with the greatest strictness.  The delay on the part of the  District Magistrate in reporting to the State Government the fact  of making  the  detention order would  inevitably  curtail  the period  available to the State Government for approving  the detention  order.   Such a delay may conceivably lead  to  a hurried  and  cursory  consideration  of  the  propriety  or justification  of  the order and thereby impair  a  valuable safeguard  available  to the detenu.   Therefore,  the  word ’forthwith’ cannot be construed so as to permit indolence or laxity  on the part of the officer charged with the duty  of reporting the detention.  However, reasonable allowance  has to  be made for unavoidable delays, always remembering  that the  detaining  authority  must explain any  long  delay  by pointing  out circumstances due to which the report  to  the

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State  Government  could  not  be  made  with  the  greatest promptitude.  The report was made to the State Government on 15th  June  which still left to it a margin of  10  days  to consider  the merits of the order.  It cannot be  said  that the delay in making the report left to the State  Government insufficient time to consider whether the order of detention should  be  approved.  The order was, in fact,  approved  on 21st  June much before the expiry of the  statutory  period. The order is dated 13th.  The explanation ,of the Department that report could not be made on 14th due to  administrative difficulties is acceptable. [395 G; 396 F-G; 397 B-C] The  contention  of  the petitioner  that  since  the  State Government  the representation the very next day it must  be held  that  it  did  not  mind  to  the  representation  was negatived.   The  length  of time which  a  takes  does  not necessarily  reffects the care of openness brought  to  bear [399 A] The  contention  of the petitioner that he could  have  been prosecuted  for the acts attributed to him was negatived  on the  ground that availability of an alternate remedy is  not by  itself  an  effective  answer to  the  validity  of  the detention. [400 A-B] 395

JUDGMENT: ORIGINAL JURISDICTION.: Writ Petition No. 506 of 1974 Petition under Article 32 of the Constitution. D.   N.   Mukherjee  and  Gobind  Mukhoty  A.C.,   for   the Petitioner G.   S.  C.  Chatterjee  of  Sukumar Basu  &  Co.,  for  the Respondent. The Judgment of the Court was delivered by CHANDRACHUD,  J.The petitioner, Skq.  Salim,  challenges  by ,his petition under Article 32 of the Constitution an  order of detention passed by the District Magistrate, 24-Parganas, under  the Maintenance of Internal Security Act, 1971.   The order  was passed on June 13, 1972 avowedly with a  view  to preventing   the  petitioner  from  acting  in  any   manner prejudicial  to  the maintenance of  supplies  aid  services essential  to the community.  The particulars  furnished  to the petitioner refer to two incidents of theft dated January 31 and February 23, 1972.  The former relates to a theft  of underground  copper  cables  and the latter to  a  theft  of A.C.S.R.  Conductors.  The particulars further mention  that on  February  24, 1972 the petitioner and two of  his  named associates  were found in possession of 30 K. Gs  of  stolen A.C.S.R. Conductors. Section 3(1) of the Act empowers the Central Government  and the  State Governments to pass orders of detention  for  the reasons therein mentioned.  I Section 3 (2) confers power on District   Magistrates,  speciually   empowered   Additional District  Magistrates  and Commissioners of Pclice  to  pass orders of detention for reasons specified there- in.  If  an  order of detention is passed by  any  of  these officers,               "he  shall  forthwith report the fact  to  the               State  Governmment to which be is  subordinate               together  with the grounds on which the  order                             has been made and such other particula rs 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

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             unless in the meantime it has been approved by               the State Government :"               That is the clear mandate of section 3(3). The  District  Magistrate,  in the instant  case,  made  the detention order on June 13, 1972 and on the 15th he reported the  fact of making the order to the State Government.   The question for consideration, which has been argued with  some favour  by the learned counsel appearing wnicus  curiae  for the  petitioner, is whether the District Magistrate  can  be said to have reported the making of the order "forthwith" as required by section 3(3). Laws of preventive detention by which subjects are  deprived of  their personal liberty without the safeguards  available in a judicial trial ought to be construed with the  greatest strictness.   Courts  must therefore be vigilant  to  ensure that the detenu is not deprived of the medium of rights  and safeguards  which the preventive law itself affords to  him. The  Maintenance of Internal Security Act contains  what  is evidently  thought  to be a scheme of  checks  and  counter- checks  by which the propriety or necessity of  a  detention order may at various 396 stages  be examined by various authorities.  If an order  of detention  is made by a District Magistrate or  a  specially empowered Additional’ District Magistrate or a  Commissioner of  Police,  he  is  required by’  section  3(3)  to  report "forthwith" to the State Government about the making of  the order.   The order cannot remain in force for more  than  12 days  or  in the circumstances mentioned in the  Proviso  to section 3 (3), for more than 22 days unless in the  meantime it has been approved by the State Government.  If the  order is  made or approved by the St-ate Government it must  under section  3  (4) report the fact to  the  Central  Government within  7 days.  By section 10, save as otherwise  expressly provided in the Act, the appropriate Government shall within 30  days from the date of detention under the  order,  place before  the Advisory Board constituted under section  9  the grounds on which the order has been made, the representation if  any made by, the detenu and in case where the order  has been  made  by any of the officers specified  under  section 3(2),  the  report made by the officer under  section  3(3). Section  11(1)  requires the Advisory Board  to  submit  its report  to the appropriate Government within 10 weeks  from, the date of detention.  This time-schedule, evolved in order obviously to provide an expeditious opportunity at different levels for testing the justification of the detention  order has  to  be observed scrupulously and its rigour  cannot  be relaxed  on any facile assumption that what is good if  done within 7, 12 or 30 days could as well be good if done,  say, within 10, 15 or 35 days. The  requirement that the District Magistrate or  the  other officers  making  the  order of  detention  shall  forthwith report the fact of making the order to the State  Government can therefore admit of no relaxation, especially because  it has a distinct and important purpose to serve.  The 12 days’ period  which the Act in normal circumstances allows to  the State  Government  for  approving  the  detention  order  is evidently  thought to be reasonably necessary  for  enabling the  Government to consider the pros and cons of the  order. Delay  on the part of the District Magistrate or  the  other officers  in reporting to the State Government the  fact  of making  the  detention order would  inevitably  curtail  the period  available to the State Government for approving  the detention  order.  The period of 12 or 22 days, as the  case may be, which is referred to in section 3 (3) runs from  the

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date  on which the order of detention is made and  not  from the  date on which the fact of making the order is  reported to the State Government.  Such a delay may conceivably  lead to  a hurried and cursory consideration of the propriety  or justification  of  the order and thereby impair  a  valuable safeguard avail-able to the detenu.  A liberal  construction of  the  requirement that the officer making  the  order  of detention  shall  forthwith  report the fact  to  the  State Government is therefore out of place. Contending for the acceptance of the literal meaning of  the word  .’forthwith’, counsel for the petitioner  argues  that administrative exigencies cannot ever be allowed to  explain away the delay between the making of the detention order and the  report  of  it  to the  State  Government.   It  is  an established rule of construction that unless the language of the statute is ambiguous, the words used by the  legislature ought 397 to be given their plain, literal meaning.  But it is equally important that by no rule of construction may the words of a statute   be  so  interpreted  as  to  bring  about   absurd situations   in   practice.   The  stranglehold   of   stark literalness  has therefore to be avoided in order to give  a rational  meaning  and content to the language used  in  the statute.   Thus,  though  the  word  ’forthwith’  cannot  be construed so as to permit indolence or laxity on the part of the officer charged with the duty of reporting the detention to the State Government, reasonable allowance has to be made for   unavoidable  delays,  always  remembering   that   the detaining authority must explain any long delay by  pointing out  circumstances  due to which the, report  to  the  State Government could not be made with the greatest promptitude. The dictionary meaning of ’forthwith’ is : "Immediately,  at once, without delay or interval".  A typical instance of the use  of  the  word  cited in the dictionary  is  :  "When  a defendant  is  ordered  to plead forthwith,  he  must  plead within  twenty-four  hours"  (See  Shorter  Oxford   English Dictionary,  Third Edition, Vol. I, p.740). This shows  that the  mandate that the report should be made  forthwith  does 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. Administrative  exigencies may on occasions render  a  post- haste  compliance  impossible  and  therefore  a  reasonable allowance  has  to  be made for  unavoidable  delays.   This approach  does  not offend against the  rule  formulated  in Kishori Mohan Bera v. State of West Bengal (1), and followed in Bhut Nath Mete v. The State of West Bengal(2), that a law depriving  a subject of personal liberty must  be  construed strictly.    The   rule  of  strict   construction   is   no justification  for  holding  that the act  to  be  performed ’forthwith’  must be performed the very  instant  afterwards without  any intervening interval of time or that it  should be  performed  simultaneously with the  other  act.   Citing Sameen v. Abeyewickrema(3),Maxwell says that where something is   to  be  done  forthwith,  a  Court  will  not   require instantaneous  compliance  with the  statutory  requirements ("The Interpretation of Statutes"12th Ed., pp. 101-102). in Keshav Nilkanath Joglekar v. The Commissioner of  Police, Greater Bombay (4)  -a Constitution Bench of this Court  had to deal with a similar contention founded on section 3(3) of

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the Preventive Detention Act IV of 1950, which was  in-terms identical with section 3(3) of the Act under  consideration. Ile  order of detention was passed in that case  on  January 13, 1956 but the report to the State Government was made  on January  21.   Accepting  the  explanation  offered  by  the detaining authority in his affidavit as to why he could  not make the report earlier, the Court held that the question to consider under section 3(3) was whether the report was  sent at the earliest point of time possible and when there is  an interval of time between (1)  [1972] 3 SCC 845. (2)  [1974] (1) SCC 645. (3)  [1963] A.C. 597. (4)  [1956] S.C.R. 653. 11-423SCI/75 398 the  date of the order and the date of the  report,  whether the delay could have been avoided.  The test which the Court applied  for  deter-mining  whether  the  report  was   made forthwith was whether the act was done "with all  reasonable despatch and without avoidable delay." In  Bidya  Deb Barma Etc. v. District  Magistrate,  Tripura, Agartala,(1) the same problem arose for consideration.   The District Magistrate had passed the order of detention  under the  Preventive Detention Act, 1950 on February 9, 1968  but made  his  report to the State Government  on  February  13. While  explaining the delay, the District Magistrate  stated in  his  affidavit that 10th and 11th February  were  closed days  and  he was during the  particular  period  "extremely busy"  due  to "heavy rush of work."  This  explanation  was accepted  by  the Court as satisfactory.  In coming  to  the conclusion  that there was no violation of  the  requirement that the report should be made ’forthwith’, the Constitution Bench relied on Joglekar’s case and on the following passage which occurred in Maxwell’s with edition at page 341 :               "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." Thus,  ’forthwith’ does not connote a precise time and  even if the statute under consideration requires that the  report shall be made forthwith, its terms shall have been  complied with if the report is made without avoidable or unreasonable delay.  In  Hillingdon London Borough Council v. Cutler(2),  Harman L.J. while holding that the concept of ’forthwith’ does  not exclude  the  allowance of a reasonable time for  doing  the act, qualified his formulation by adding the rider "provided that no harm is done." Applying that test, no prejudice  has been  caused  to the petitioner by the late  making  of  the report.   The State Government could approve  the  detention any  time  before June 25, the order having been  passed  on June  13.   The report was made to the State  Government  on June 15 which still left to it a margin of about 10 days  to consider  the merits of the order.  It cannot be  said  that the delay in making the report left to the State  Government insufficient time to consider whether the order of detention should be approved.  The order was in fact approved on  June 21,  much  before the expiry of the statutory period  of  12 days. The  District  Magistrate,  it  must  be  stated,  has   not explained in his affidavit why he did not report the fact of detention  to the State Government promptly.  The  order  is dated June 13 and if not on the 13th itself, he should  have in  normal circumstances made his report on the 14th.   Such

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remissness on the part of detaining authorities is not to be encouraged  but it ought to be stated that counsel  for  the State Government had asked for an adjournment to enable  the District  Magistrate to file a supplementary  affidavit  for explaining the delay.  We (1) [1969] 1 S.C.R. 562. (2)  [1968] 1 Q.B. 124, at P. 135. 399 did  not  grant the adjournment as we were inclined  to  the view that the interval between the date of the order and the date  of  the  report  is  not so  long  as  to  require  an explanation on oath.  The date on which the order was passed may, even according to the petitioner’s counsel be left  out of  the reckoning.  That accounts for the 13th.  The  report was  made  on the 15th and there is some authority  for  the proposition  that an act may be taken as done "at the  first moment  of the day on which it was performed" (See  Maxwell, 12th  Ed. pp. 311-312).  That takes care of the  15th.   All that can therefore be said is that there was one day’s delay in  making  the report.  We are not inclined to  dismiss  as untrue  the  oral  explanation  offered  on  behalf  of  the District Magistrate that he could not make the report on the 14th  due to administrative difficulties.  As it  cannot  be said  that the District Magistrate had slept over the  order or was "lounging supinely" over it and since the explanation of  one day’s delay may be accepted as reasonable, there  is no violation of the requirement that the report to the State Government shall be made forthwith. A  few  other  contentions  were raised  on  behalf  of  the petitioner  but we see no substance in any one of them.   It is contended that section 3(4) has been violated because the State  Government  did  not make a  report  to  the  Central Government  within  7  days of the date  of  the  order  of, detention.  The short answer to this, contention is that the period  of 7 days has to be reckoned from the date on  which the  State  Government approved the order and not  from  the date on which the District Magistrate passed the order.   If the  order  were made by the State  Government,  the  report would  have  been  required  to  be  made  to  the   Central Government  within 7 days of the date of the order; but  the order  in the instant case was approved and not made by  the State  Government.   It  was then said  that  there  was  no proximity between the incidents leading to the detention and the order of detention as ’there was a gap of about 4 months in  between.   The explanation of the interval is  that  the petitioner  was being prosecuted and an order  of  discharge had to be obtained on June 17, 1972.  The order of detention was passed 4 days before the order of discharge was  passed. It  is  next  contended that  the  State  Government  having rejected  the petitioner’s representation the very next  day that it was received, it must be held that it did not  apply its mind to the representation.  We do not suppose that  the length  of time which a decision takes necessarily  reflects the care or openness brought to bear upon it.  The answer to yet  another  contention  that  the  entire  material  which influenced the subjective satisfaction of the Magistrate  in passing  the  order  of detention was not  supplied  to  the petitioner  is that according to the countered affidavit  of the District Magistrate, nothing apart from what is stated 400 in  the grounds and the particulars was taken  into  account while passing the order of detention.  The, last  submission that the petitioner could have been prosecuted for the  acts attributed  to  him  has been ,answered  by  this  Court  in numerous  cases  by  saying  that  the  availability  of  an

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alternate remedy is not by itself an effective answer to the validity of the detention. In  the  result we dismiss the petition  and  discharge  the rule. P.H.P.            Petition dismissed. 401