Salim Vs. State of West Bengal 
INSC 18 (27 January 1975)
BEG, M. HAMEEDULLAH GUPTA, A.C.
CITATION: 1975 AIR 602 1975 SCR (3) 394 1975
SCC (1) 653
C 1979 SC1945 (7) E&D 1992 SC 847 (22)
Maintenance of Internal Security Act.
1971--Words & phrases--Meaning of 'forthwith'--Non application of
mind--Availability of alternative remedy of prosecution whether invalidates
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 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
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
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 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
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
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 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 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)  3 SCC 845.
(2)  (1) SCC 645.
(3)  A.C. 597.
(4)  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 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)  1 S.C.R. 562.
(2)  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 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.