Cofeposa And Its Peculiarity

The Conservation Of Foreign Exchange And Prevention Of Smuggling Activities Act, 1974 (COFEPOSA), which came into force on December 19, 1974, came at a time when India appeared a heavenly abode for wrongdoers with names like Sukhar Narain Bakhia and Haji Mastan, all based in big cities of the western coast of India, and operating innumerable sorties across the Arabian Sea in their "fleet of Arab dhows", looting and ransacking the "golden egged Indian soil" through smuggling (endangering the security of the state) and defying and daring the state to take action.Hence, read the preamble of the COFEPOSA Act: "Having regard to the persons by whom such activities or violations are organised and carried on, it is necessary for the effective prevention of such activities and violations to provide for detention of persons concerned."Understandably, therefore, stipulated Section 1 (2): "This Act extends to the whole of India". It included "foreigners" vide Section 2 (c): "Foreigner has the same meaning as in the Foreigners Act 1946" (3 of 1946). Section 10 of the Act provided two years as the maximum period of detention and Section 13 giving "Protection of action taken in good faith." Customs law defined "smuggling" relating to goods as any act or omission that will render such goods liable to confiscation, making most disputes therein fall under this category. With the abolition of gold control Act and removing import/export restrictions, gold smuggling got re-invented with violations of free trade agreements, exemption schemes and policy frauds, concealment of gold took a backseat. If the Detenue is found to have indulged in activities amounting to smuggling in terms of section 2 of the customs act 1962, then he will be detained in COFEPOSA. Indulged in activities amounting to sec 2(39) of customs act and sec (e) Cofeposa. The Conservation of Foreign Exchange and Prevention of Smuggling Act (COFEPOSA) introduced in 1974, which led to the repeal of Maintenance of Internal Security Act (Amendment) Ordinance, 1974, has survived to this date to form a part of former Prime Minister Indira Gandhi's political legacy. The Janata Party repealed MISA 1971 but its economic adjunct COFEPOSA continues to be in vogue and is back in the spotlight owing to the Supreme Court order in the Dimple Dhakkad case delivered on July 18. At a time when the courts, in the context of the COFEPOSA, discuss the touchstone of procedural rigour at the altar of substantive justice, it is time to review the necessity of this preventive detention law. Under COFEPOSA, the Centre and state governments are empowered to detain a person (including a foreigner) to prevent such a person from smuggling of goods or acting in a manner prejudicial to conservation of foreign exchange. Riding on the wave of 'garibi hatao', a slew of legislations, including Monopolistic and Restrictive Trade Practices Act 1969, MISA 1971, Insurance and Coal Nationalisation laws, Foreign Exchange Regulation Act 1973 and Smugglers and Foreign Exchange Manipulators Act (SAFEMA) 1976 (to confiscate properties of smugglers) were introduced in the backdrop of 25 per cent inflation and $1.3 billion foreign exchange reserve in 1975. But how is it COFEPOSA is not being applied on any of the persons who all hail from the same country and have resorted to smuggling goods worth Crores of rupees? All of whom were caught at regular intervals while entering India? Is it because they hail from a militarily powerful and economically strong nation which can damage India? The worst part is that they are gaining confidence that despite such brazen acts, the Indian system will not act owing to its weakness and corruption. Better yet, why doesn't the Government of India impose COFEPOSA on the foreign nationals for such flagrant violations of law by resorting to smuggling, thereby endangering the security of the state? Detention under Cofeposa is for the national interest especially if the detenue is potentially likely to continue doing this out of his habitual indulgence in the said acts of smuggling. More often than not the proceeding under 135 of Customs Act is independent of the detention order and has no relevance to the prevention of the detenue as sometimes they do try making its relevance and also contend that section 135 of customs act deal with proceedings related to smuggling but fail to answer on detention. Cofeposa is used as a preventive step rather than retributive step. Noteworthy sections of Cofeposa Section 3. Power to make orders detaining certain persons. To preventing him from- (i) smuggling goods, or (ii) abetting the smuggling of goods, or (iii) engaging in transporting or concealing or keeping smuggled goods, or (iv) dealing in, smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or (v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods, It is necessary so to do, make an order...

Cofeposa And Its Peculiarity

Adv Dev P. Bhardwaj

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