JUDGMENT
M.B.K. Singh, J.
1. In this writ petition, the petitioner is challenging the legality of the order being No. DC (CCP) CRIL/NSA/ 2004(3), dated 7-1.0-2004, passed by the District Magistrate. Churachandpur by which he was ordered to be detained under NSA 1980 purportedly with a view to prevent him from acting in any manner prejudicial to the security of the Slate and maintenance of public order in the District, and also the order being No. 17(1)/804/2004-H, dated 6-11-2004 passed by the Special Secretary (H), Govt. of Manipur in the name of the Governor of Manipur by which the said detention order was confirmed and the period of detention was fixed as 12 months from the date of detention.
2. We have heard Mr. Ch. Ngongo, learned Counsel appearing on behalf of the petitioner, Mr. Jalal, learned Addl. G.A. appearing on behalf of the State-respondents and Mr. N. Ibotombi, learned CGSC appearing on behalf of the respondent No. 4. We have also perused the materials before the Court.
3. The said detention order dated 7-10-2004 was served upon the petitioner while he was in judicial custody in connection with the investigation of FIR Case No. 3(9)04 Singhat P.S. The grounds of detention was served to him on 13-10-2004 at 1.15 p.m. The State Govt. approved the said detention order, vide Order No. 17(1)804/2004-H, dated 16-10-2004, passed purportedly in exercise of the powers conferred by Section 3(4) of the NSA, 1980. The said detention order was confirmed by the State Government vide order being No. 17(1)804/04-H dated 6-11-2004 purportedly in consonance with the opinion expressed by the concerned Advisory Board. The State Government fixed 12 months as the period for which the detention was to be made starting from the date of detention.
4. One of the grounds submitted by the petitioner’s-counsel is that the impugned detention order was passed without any application of mind about the need to pass it while the petitioner was already in custody and as such the said order is liable to be quashed. The learned Counsel for the petitioner draws our attention to the decision of the Hon’ble Supreme Court in Kamarunnissa v. Union of India, AIR 1991 SC 1640 : (1991 Cri LJ 2058). The Hon’ble Supreme Court held at para 13 :
“13. From the catena of decisions referred to above it: seems clear to us that even in the case of a person in custody a detention order can validly be passed. (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity, and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court. What this Court stated in the case of Ramesh Yadav (AIR 1986 SC 315) : (1986 Cri LJ 312) (supra) was that ordinarily a detention order should not be passed merely to pre-empt or circumvent enlargement on bail in cases which, are essentially criminal in nature and can be dealt with under the ordinary law. It seems to us well settled that even in a case where a person is in custody, if the facts and circumstances of the case so demand, resort can be had to the law of preventive detention. This seems to be quite clear from the law discussed above and there is no need to refer to the High Court decisions to which our attention was drawn since they do not hold otherwise. We, therefore, find it difficult to accept the contention of the counsel for the petitioners that there was no valid and compelling reason for passing the impugned orders of detention because the detenus were in custody.”
5. In bur present case, there is no dispute that the District Magistrate, Churachandpur was aware of the fact that the petitioner was in judicial custody in connection with investigation of the FIR Case No. 3(9)04 Singhat P.S. when the impugned detention order was passed. Neither in the impugned order dated 7-10-2004 nor in the grounds of detention dated 11-1-2004, it is mentioned as to why and how detention of the petitioner was necessary despite the fact of his being already in the Jail. Nothing is mentioned if there was a reliable possibility of his being released on bail. Nothing is mentioned if there was reliable materials on the basis of which the learned District Magistrate, Churachandpur could believe that on being released on bail, the petitioner would in all probability indulge in activities prejudicial to the security of the State and to the maintenance of public order. There is nothing showing satisfaction of the District Magistrate, Churachandpur in respect of the abovesaid matters. The failure on the part of the District Magistrate to state clearly about his satisfaction about the necessity for making the said order to detention, despite the fact of the petitioner being in the jail clearly shows non-application of mind on the part of the detaining authority. Accordingly, the detention of the petitioner is not sustainable in the eye of law.
6. Another point submitted by the petitioner’s-counsel is that the respondent No. 1, communicated the grounds of detention to the petitioner after expiry of 5 days from the date of detention without recording exceptional circumstances for the delay and thereby in violation of the provisions of Section 8(1) of the NSA, 1980 read with Article 22(5) of the Constitution and as such the impugned order is liable to be set aside. The primary requirement, of Section 8(1) of the Act is that the authority making the order of detention shall communicate grounds of detention to the detenu ‘as soon as may be.’ The normal rule, therefore, is that the grounds of detention must be communicated to the detenu without avoidable delay. It is only in order to meet the practical exigency, of administrative affairs that the detaining authority is permitted to communicate the grounds of detention not later than 5 days ordinarily and not later than 10 days if there are exceptional circumstances. If there are any such circumstances, the detaining authority is required by Section 8(1) of the Act to record its reason in writing. The Hon’ble Supreme Court, in the State of Rajasthan v. Talib Khan, AIR 1997 SC 1559 : (1997 Cri LJ 408), held at para 7 as follows :
“7. It would thus be seen that the requirement of the supply of the grounds, as soon as may be, indicates that normally the detenus is entitled to be communicated with the grounds of detention within five days with a view (to) tide over unavoidable circumstances due to which the detaining authority could not have the grounds of detention supplied, the statute engrafted a leverage and directed him to record reasons therefore, in writing and the administration should supply the grounds of detention, before the expiry of ten days. So, the delay should be exceptional and those exceptional circumstances are required to be recorded in writing. What are exceptional circumstances is always a question of fact in each case. What is mandatory is the supply of the grounds of detention before expiry of ten days but after the expiry of five days. It is well settled legal position that the phrase “as soon as may be” means within a reasonable dispatch when there is no avoidable delay. What is avoidable delay is a question of fact.”
7. In our present case, there is no dispute that the detention order dated 7-10-2004 was served on the petitioner on 7-10-2004 itself. The grounds of detention was communicated on 13-10-2004. The Hon’ble Supreme Court in the case of Haru Das Gutpa v. State of West Bengal (1972) 1 SCC 639 : (1972 Cri LJ 872) was considering a provision under the West Bengal Prevention of Violation Activities Act, 1970 and held that the rule is well established that where a particular time is given from a certain date within which an act is to be done, the day on that day is to be excluded. The effect of defining the period from such a day until such a day within which an act is to be done is to exclude the first day and to include the last day. Hon’ble Supreme Court in corning to the aforesaid decision relied upon some English decisions and held that in computing the period, the date of commencement of detention that is the first day is to be excluded. The above view was affirmed by Hon’ble Supreme Court in Jasbir Singh v. Lt. Governor, Delhi (1999) 4 SCC 228. In the above case, the Hon’ble Supreme Court, while dealing with computation of period of 5 days prescribed Under Section 3(3) of COFEPOSA Act, 1974 when the order of detention was served on 25-3-1994 and the grounds of detention was served on 30-3-1994, held that there was no infraction of Section 3(3) of the said Act inasmuch as the day on which the detention order was served was to be excluded.
8. Keeping in view the abovesaid principles of law, we find that in our present case, the grounds of detention that were communicated on the 6th day of the day of serving the detention order and as such beyond the prescribed 5 days from the date of serving the detention order. Since the grounds of detention were not communicated within the prescribed period of 5 days and since they were furnished within 10 days, as per provision of Section 8(1) of the Act the Detaining Authority was required to record its reason in writing. However, there is nothing to show that the detaining authority recorded any reason about its failure to communicate the grounds of detention within the prescribed period of 5 days. No reason is found to have been given in this regard in the affidavit-in-opposition filed by the respondent No. 1 (the District Magistrate, Churachandpur) as well as in the affidavit-in-opposition filed by the respondents 2 and 3. No reason is also found recorded in this regard in the records produced before the Court. We are of the opinion that in view of the failure on the part of the detaining authority to record any reason for the delay in communicating the grounds of detention, despite requirement Under Section 8(1) of the Act, there was no any acceptable reason for the delay.
9. As a result of the failure to comply with the provisions of Section 8(1) of the Act, the valuable right of the representation at the earliest opportunity entitled to by the detenu as envisaged under Article 22(5) of the Constitution was breached in the present case. In this circumstances, the detenu is entitled to be released from detention.
10. Further, on perusal of the materials before the Court, it is ascertained that the petitioner/detenu was never informed about his right to make representation to the detaining authority. A Division Bench of this Court, in Thanglenmang Hangsing v. District Magistrate, Senapati (2004) 1 Gauhati LT 646, after taking into consideration the decisions of the Hon’ble Supreme Court in Kamleshkumar Ishwardas Patel v. Union of India (1995) 4 SCC 51; State of Maharashtra v. Santosh Shankar Acharya (2000) 7 SCC 463 : (2000 Cri LJ 3939) held at para 8 :
“8. It is, therefore, clear that the provisions in Article 22(5) cast an obligation on the detaining authority to inform the detenu detained under any preventive detention law of his right of making representation to the detaining authority before approval of the order of detention by the State Government This is the established principle of law. In the case at hand, the detaining authority apparently did not inform the detenu of his right to make a representation before him (detaining authority). There is, therefore, a serious lapse on the part of the detaining authority. This lapse alone vitiates the order of detention.”
11. In our present case, in view of the failure of the detaining authority to inform the detenu/petitioner about his right to make representation before approval of the order of detention by the State Government, the impugned order of detention is vitiated.
12. In the light of the above findings, the detention order dated 7-10-2004 and the confirmation order dated 6-11-2004 are not sustainable in the eye of law. The impugned orders are hereby set aside. The petitioner be released forthwith if he is not required to be detained in connection with any other case.