JUDGMENT
B.S. Kapadia, J.
1. The present petition is filed by the detenu against the order of detention passed against him on 13th June, 1987 by the Commissioner of Police, Ahmedabad under Section 3 of the Gujarat Prevention of Anti-Social Activities Act, on his being satisfied that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary to make an order directing that the present petitioner should be detained : The said order was executed on the same day and he was also supplied with the grounds of detention Annexure ‘C’ to the petition on 16th of June, 1987.
2. On perusal of the grounds, it appears that there are six cases filed against him under Prohibition Act and there were cases under Sections 66B and 65E. The case No. 628 of 1985 was pending the trial and others were under investigation. Accordingly, the detaining authority was satisfied that the present petitioner was a bootlegger. He also relied on the statements of certain persons recorded by him on 13th May, 1987 and he was also satisfied that the petitioner’s activities as bootleggar were such as to disburb the public order. He also considered the other relevant circumstances for arriving at the subjective satisfaction that it was necessary to pass the detention order against the present petitioner and, accordingly, he passed the impugned order of detention.
3. In this petition various grounds were raised, but at the time of argument, Mr. H. L. Patel, learned advocate for the petitioner, pressed only one point. The said point is that the detaining authority has failed to discharge his statutory obligation under Section 3(3) of the PASA Act to forthwith report the fact of detention along with the grounds of detention and other relevant papers to the State Government and according to his submission in paragraph 13 of the petition, the continued detention is bad in law. The detaining authority has filed counter-affidavit and while dealing with this point raised in paragraph 13 of the petition, he only stated that this aspect is already dealt with in the beginning paragraphs and the court may permit him to refer to and rely upon the same. On perusal of the earlier paragraphs and particularly paragraph 3 thereof, it is clear that the grounds of detention were served on the petitioner detenu in Sabarmati prison on 16th June, 1987, Thereafter it is stated on oath by the detaining authority that the report which is required to be sent to the State Government along with the grounds of detention and other materials which have bearing on the impugned order of detention was sent to the State Government on 16th June, 1987, i.e. within the stipulated period of seven days and the State Government in its turn approved the same by an order dated 17th June, 1987, However, at the time of hearing, Mr. Divatia, learned Addl. Public Prosecutor stated that, in fact, the fact of intimation was reported to the State Government by the letter dated 13th May (June),1987 and, therefore, there is proper compliance with the statutory requirement under Section 3(3) of the PASA Act.
4. On plain reading of Section 3(3) of the said Act, it is clear that the detaining authority is required to report forthwith the fact of passing the detention order to the State Government, together with the grounds of detention and other materials which have bearing on the impugned order of detention. It is also clear that wherever the Legislature is using the word ‘forthwith’, it is so advisedly using it and on perusal of the entire scheme, it is very clear that there is a very tight schedule of time. Immediately on getting the report together with the grounds and other materials, the State Government has to consider the same for the purpose of approval and if the approval is not given within the period of 12 days, the said order does not remain in force after 12th day and, therefore, the legislature has advisedly used the word ‘forthwith’ meaning of which is now settled by the judgment of the Supreme Court. It means it is to be done with all reasonable despatch and without avoidable delay, See the case of Keshav Nilkanth Joglekar v. Commr. of Police. In the said case, the Supreme Court has also in clean terms stated that they do not wish to underscore the need of the strict compliance with that requirement and it is important requirement intended to secure that the State Government shall have sufficient time for consideration before it decides to give approval within 12 days of making of the order of detention, The court would, therefore, insist on the strict compliance with it and not condone avoidable delay.
5. In the light of the aforesaid observation of the Supreme Court, it is necessary to examine, the contention raised by Mr. Patel, As per the affidavit of the detaining authority, it is mentioned that the report was made on 16th June, 1987. However, Mr. Divatia, learned Addl. Public Prosecutor has pointed out from the file one letter dated 13th June, 1987 for the purpose of approval. It is clear from the said letter that there were no enclosures to the said letter and it is also not clear from the contents of the said letter that apart from supporting enclosures, there was any reference whatsoever of the grounds and materials having bearing on the matter.
6. Mr. Divatia also pointed out one office noting which was made on 16th June, 1987 wherein it is mentioned that the papers were ready and the submission for approval of the order was made. In the absence of any material on the record, it is difficult to infer that the papers were sent along with the aforementioned letter dated 13th June, 1987, particularly in view of the fact that the version of the detaining authority on oath is quite different as stated earlier. It is, therefore, possible to infer that the detaining authority might have sent a special messenger to Gandhinagar on 16th and the State Government might have received the grounds; and other relevant documents of the detention order on 16th and on that very day, the submission might have been made. It is also not the case of the detaining authority that they were busy with preparing the copies of the documents to be supplied and, therefore, they could not despatch it earlier than 15th and they posted it on 16th and the State Government received it on 16th itself. In the absence of any such plea, we are not called upon to decide the same. On the contrary, it appears to us that the copies of the grounds must have been supplied to the State Government only on 16th because the detenu was also served with the grounds on 16th, i.e. the third day of his detention in jail. If at all the copies of grounds were ready on 13th there was no reason why the detenu was not served with the said grounds on that very day. That is additional reason for holding that the grounds and other documents were not sent along with the above referred letter dated 13th June, 1987. When that is so, the question is whether by intimating the fact of detention order simpliciter to the State Government on 13th. there is due compliance of Sub-section (3) of Section 3 of the Act, It may be mentioned that sending the copies of the grounds and other particulars, which, in the opinion of the detaining authority, have earing on the matter is not a matter of idle formality, it is a basic material on the basis of which the detention order is passed by the detaining authority and the State Government has to consider the said materials before approving the order. In that view of the matter, mere intimation of the fact of the detention order to the State Government in absence of copies of grounds and other particulars having earing on the matter, cannot be said to be due compliance of Sub-section (3) of Section 3 of the Act. In that view of the matter, we are constrained to hold that in this case, the detaining authority has failed to forthwith send the report along with the grounds and other materials to the State Government as required under Section 3(3) of the Act. No explanation has been given on the point as to why they have not sent the papers before 16th and whether the delay was unavoidable. We may take judicial notice of the fact that 13th was a closed Saturday and 14th was Sunday and, therefore, they could have prepared the papers on 15th and dispatched the same by post or otherwise to the State Government on 15th or 16th. But, as stated above, no such case in made out by the State Government or the detaining authority in the counter-affidavit nor any such case is canvassed before us by the learned Additional Public Prosecutor, with the result that there is unexplained delay which has resulted in non-compliance of the statutory mandate under Section 3(3) of the Act. Hence the continued detention is bad and illegal.
7. In the result, we allow this petition holding that the continued detention is bad and illegal and we order that the detenu would be released forthwith, if not required in any other case. Accordingly, rule is made absolute.