CS Deepak Pratap Singh

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act , 1974  or COFEPOSA, 1974

Foreign Exchange is important for every country for payment of import of essential goods and services. Foreign exchange will be collected from various ways, such as export of goods and services, remittances by NRIs, Persons Resident Abroad, Foreign Direct Investments etc., The government has promulgated Foreign Exchange Management Act, 2000 by replacing Foreign Exchange Regulation Act, which is a draconian act and contained harsh provisions. The FEMA, 2000 provides liberalized provisions to promote inward remittance of Foreign Exchange and to promote Export form India.

In the era of 1970 to 1980 , when smuggling activities were at the top and the Foreign Exchange of India was at the lowest position, the Government of India was passed “ COFEPOSA, 1974”. But in this liberalized era the Act has lost its significance.

The Act gives wide powers to the executive to detain a person on mere suspicion of smuggling. This Act has been criticized by various Human Right activists and organizations for being draconian. The Act has given special protection by including the same in the 9th schedule to the Constitution of India.

The Supreme Court upheld the validity of COFEPOSA, 1974 in Attorney General of India Vs Amaratlal Prajivandas (AIR1994SC2179) by saving that the individual civil liberty will be curtailed by the authority in the interest of General Public and the Nation.

COFEPOSA is not a punitive Act. It does not empower authority to punish a person without trial. It provides a preventive detention of person, before engaging in smuggling activities. A person can be detained under provisions of the Act, on the basis of suspicion that he will be engaged in smuggling activities but the detention must be followed both substantively and procedurally by detaining authorities.

UOI vs. Paul Manickam 2003 AIR SCW5423 it was held that in case of preventive detention, no defense is proved, nor any charge is formulated and the justification of such detention is suspicion or reasonability and there is no criminal conviction which can only be warranted by legal evidence. Preventive justice requires an action to be taken to prevent apprehended objectionable activities. But the same time a person’s greatest of human freedoms i.e. personal liberty is deprived, and, therefore, the laws of preventive detention are strictly construed and a meticulous compliance with the procedural safeguard, however technical is mandatory.

Reddiah vs. Government of Andhra Pradesh (2012) 2 SCC 389 it was held that preventive detention is not to punish a person for something he has done but preventing him from doing it.

Sadhu Roy vs. State of West Bengal 1975(1) SCC 660; it was held that discharge or acquittal by a Criminal Court is not necessarily a bar to preventive detention on the same facts for security purposes.

PREVENTIVE DETENTION;

 Haradhan Saha vs. State of west Bengal (1975) 3 SCC 198; it was held that the preventive detention is qualitatively different from punititive detention. The Preventive detention will be exercised in a precautionary measure with a reasonable anticipation that the detenu is going to indulge in any anti national or smuggling activities. It may or may not be related to any offence. An order of preventive detention may be made before or during the prosecution. An order of preventive detention may be made with or without persecution and in anticipation or after discharge or even acquittal

Detention period cannot be set off against terms of punishment; it was held in case of Champalal Punjaji Shah vs. State of Maharashtra (1982) SCC 507 that detention under preventive detention laws is not punititive but essentially a precautionary measure intended and intercept a person before he commits infra-active act which he had done earlier. The period of detention cannot be set off u/s. 428 of Criminal Procedure Code against term of imprisonment imposed on them.

COFEPOSA, 1974 will be applicable in case of offences under FEMA, 2000 as held in the case of UOI vs. Venkateshan S.(2002 AIR) SCW 1978.

DETENTION UNDER COFEPOSA, 1974;Section 3(1) Under provisions of the Act, a Government officer, not below rank of Joint Secretary in case of Central Government and Secretary in case of State Government , who is specifically authorized by Central or State Government for that purpose , is authorized to order detention of a person ( including a foreigner) with a view to prevent him from acting in any manner prejudicial to conservation or augmentation of foreign exchange, or to prevent him from smuggling or abetting smuggling goods or harboring persons engaged in smuggling activities.

Section 3(2) provides that where order of detention is made by State Government Officers, it should be informed to the Central Government within a period of 10 days from the date of detention.

Order of detention can be issued for detention of a person even the person has been already detained in some other case by the authority.

Article 22(5) of the Constitution of India provides that a person detained under any law for preventive detention, grounds of order must be communicated to him by the authority making the order.

Article 22(6) provides that the facts of detention need not be disclosed, if the detaining authority considered it is against the public interest.

Section 3(3) of COFEPOSA, 1974 provides that communication must be done within a period of 5 days and in exceptional circumstances , within a period of 15 days( after recoding the reasons of delay).The reasons should be recorded in writing, but it is not necessary to communicate the reasons of delay to the detenu.

State of Bombay vs. Atma Ram (AIR 1951 SC 157) it was held that additional grounds other than communicated to the detenu earlier cannot be given, but the grounds furnished earlier can be informed later.

Sophia Gulam Mohd. Vs. State of Maharashtra (1999 AIR SCW 2985) it was held that copies of all documents considered by detaining authority must be given to the detenue. But in case of J Abdul Hakeem vs. State of Tamilnadu (2005 7 SCC 70) it was held that only copies of documents relied in passing detention order are required to be supplied.

State of Tamil Nadu vs. Senthil Kumar (AIR 1999 SC 971); it was held that additional papers were given to the detenue in a causal manner, without covering note and without mentioning that these grounds will be placed before the Advisory Committee and the Government in confirmation of detention order is an infringement of provisions of Article 22(5) of the Constitution. It was held that the Courts adhere to strict compliance to procedural safeguards in every case of preventive detention.

Article 22(5) of the Constitution gives right to the detenue to make a representation. Such representation can be made to Officer who made the order of detention (as may be authorized by the government for this purpose) as well as to Advisory Committee. The detaining authority as well as authority that have power to revoke detention order has to consider the representation.

Nutan J Patel vs. SV Prasad (1996) 2 SCC 315;  it was held that the person has to be informed of his right to make representation to detaining officer, State or Central Government and Advisory Board.

TA Abdul Rahman vs. State of Kerala(1991) 70 SC 578; it has been held that delay in securing arrest after detention order and delay in disposal of representation against detention vitiates the detention order.

A Mohammed Farook vs. Joint Secretary (1999)(7) SCALE 274; it was held that subjective satisfaction of detaining authority gets vitiated if there is inordinate  delay in executing detention order, without indicating steps taken by executing authority.

But in case of Subhash Popatlal Dave vs. UOI (2014) 1 SCC 280 it was held that detention order cannot be quashed merely because there was delay in execution of detention order. Preventive detention order is not punititive. In case of long delay in execution of detention order, fresh application of mind by detaining authority is normally required as the live link is snapped due to such delay.

Section 4 of COFEPOSA, 1974; provides that the order of detention can be served on a person anywhere India in the manner for execution of warrants of arrest under Code of Criminal Procedure in case of a person who is absconding , the State or Central Government may apply to Magistrate of the First Class or Metropolitan Magistrate and he will issue orders in respect of person and his property according to the provisions of Code of Criminal Procedure.

Section 7 of COFEPOSA, 1974; provides that the Government can also issue order in Official Gazette and ask person to report within prescribed period. If he does not report without sufficient cause, he can be imprisoned for one year along with fine.

Section 5 of COFEPOSA, 1974; provides that a person can be detained at any place and under any condition as to maintenance, interviews or communication with others, discipline and punishment for breach of discipline , as the Central Government or State government may specify. He can be moved from one place to other or from one State to other.

Section 5A of COFEPOSA, 1974; provides that the grounds are severable i.e. all grounds have to be treated as separate. Even if detention order on one ground is found to be invalid, detention cannot be set aside, if it can be sustained on remaining grounds. It is presumed that the officer making the order of detention is satisfied that detention is necessary to conserve foreign exchange or prevent smuggling and no proof regarding his satisfaction is necessary.

Article 22(4) of the Constitution; provides that a person can be detained as preventive measure. The detention can be further extended only if Advisory Board reports before three months that there is sufficient cause for detention. The Central Government will be representation before the Advisory Board within a period of 5 weeks from the date of detention.

Section 8(e) provides that the Advisory Board will consider the material place before them and hear the person detained if he so desires, and give report within a period of 11 weeks from detention.

Section 10 provides that the maximum period of detention can be one year from the date of detention. The government can revoke the detention order at any time even after recommendation of Advisory Board.

Section 21 of General Clauses Act an officer who has passed the detention order can also revoke the said order.

Section 12(3) of COFEPOSA, 1974; provides that a person detained can be released for a specified period by Central Government or State Government with or without conditions. A bond may be asked from the person being released. If released person does not return on specified date, he can be imprisoned for two years and fine can be imposed

Section 11(6) provides that a person cannot be released on bail or bond or a court cannot release a person on bail or bond if detained under provisions of COFEPOSA, 1974.

(Author can be reached at cs.deepakpsingh@gmail.com)

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