AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2015 (7) TMI 749
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....he officers in plain clothes intercepted him. The detenu was carrying assorted foreign currency equivalent to Indian Rs. 38,10,565/- which was seized from his possession / baggage under panchanama dated 21.11.2014. By an arrest memo dated 22.11.2014 the detenu was arrested. It was alleged that he attempted to smuggle the foreign currency out of India. He was produced before the Competent Magistrate's Court and enlarged on bail. While being enlarged, a bail bond was directed to be furnished. It is the case of the detenu that the bail bond incorporated an undertaking by the detenu not to leave the country without prior written permission of the concerned officer or the Court as the case may be. 4. It is then alleged that there was a self incriminating statement recorded and the detenu's signature was obtained thereon forcibly. This statement was retracted on 23.11.2014. The Sponsoring Authority issued rebuttal in response to the retraction on 1.12.2014. 5. There are further communications addressed by the detenu to the Sponsoring Authority in December, 2014, but we are not concerned with the contents thereof. It is common ground that the detention order impugned in this Wri....
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....l probability, he may indulge in such prejudicial activities in future and, therefore, he is required to be detained under COFEPOSA and preventive detention is considered necessary to subserve the larger public interest of preventing smuggling and conserving and augmenting foreign exchange. Thus, the submission is that there is variance between the subjective satisfaction based on which the detention order is made and the grounds thereof. In other words, the order passed by the detaining Authority does not make any reference to any satisfaction that the detaining Authority has arrived at and of the detenu indulging in smuggling activities in future which would jeopardise the conservation and augmentation of foreign exchange. It is submitted that this was specifically pointed out in the representation, but same has been rejected on 28.5.2015. 7. A faint attempt is also made to suggest that the detenu could not exercise his right to make representation effectively and meaningfully because he was not supplied the particulars as sought by him. The documents were also not supplied and that is why the representation could not be said to be complete. For all these reasons, it is submitte....
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....rejudicial to the conservation or augmentation of foreign exchange and with a view to prevent him from smuggling the goods or abetting such acts etc. Thus, there is conscious and proper application of mind. There is absolutely no substance in the contention that there is variance between the grounds of detention and the subjective satisfaction recorded in the detention order. It is submitted that there is absolutely no denial of right to make representation as all the necessary materials were supplied. Thus, the attempt to read one paragraph in isolation and torn out of context should not result in detention order being set aside. The detention order being in accordance with law, deserves to be upheld and the petition must be dismissed, is his submission. 10. Our attention is also invited to the affidavits in reply which have been filed on behalf of the detaining authority. 11. With the assistance of the Counsel appearing for both sides, we have perused the petition and all annexures. We have also perused the affidavits placed on record and particularly, the affidavit filed by the Deputy Secretary, Home Department, Government of Maharashtra. The detention order, a copy of which i....
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....ctive satisfaction is clearly based on the ingredients of clause (i) of Subsection (1) of Section 3 of the COFEPOSA Act, 1974. The said provision reads as under: "3. Power to make orders detaining certain persons.(1) The Central Government or the State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner), that, with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from - (i) smuggling goods, or .... .... ..... ...." 14. In a recent judgment delivered by the Hon'ble Supreme Court of India in the case "Dropti Devi & Anr. Vs. Union of India & Ors., (AIR 2012 SC 2550) ", the Hon'ble Supreme Court was considering the issue of constitutional validity of Section 3 of the COFEPOSA Act, in the light of the Foreign Exc....
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....he security of the State as well as the maintenance of supplies and services essential to the community besides Entry 9 of List I. In the words of this Court (para 23 pg. 73 of the Report): "...COFEPOSA is clearly relatable to Entry 3 of List III inasmuch as it provides for preventive detention for reasons connected with the security of the State as well as the maintenance of supplies and services essential to the community besides Entry 9 of List I......." 49. In Amratlal Prajivandas 14 (AIR 1994 SC 2179 : 1994 AIR SCW 2652) constitutionality of COFEPOSA was directly in issue. The Court made the following weighty prefatory remarks in paragraph 1 (pg. 62 of the Report) highlighting the importance of regulation and control of foreign exchange: "Till the wind of liberalisation started blowing across the Indian economic landscape over the last year or two, the Indian economy was a sheltered one. At the time of Independence, India did not have an industrial base worth the name. A firm industrial base had to be laid. Heavy industry was the crying need. All this required foreign exchange. The sterling balances built up during World War II were fast dissipating. Foreign exchange had to....
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....nce of the petitioners' argument would mean that in case of postBharati constitutional amendments placing Acts in the Ninth Schedule, the protection of Article 31-B would not be available against Article 14. Indeed, it was suggested that Articles 21 and 19 also represent the basic features of the Constitution. If so, it would mean a further enervation of Article 31-B. Be that as it may, in the absence of any effort to substantiate the said challenge, we do not wish to express any opinion on the constitutional validity of the said Amendments. We take them as they are, i.e., we assume them to be good and valid. We must also say that no effort has also been made by the counsel to establish in what manner the said Amendment Acts violate Article 14." Then, in paragraph 21, the Court observed that COFEPOSA was a law relating to preventive detention and it has, therefore, to conform to the provisions in clauses (4) to (7) of Article 22. The Court quoted following observations in R.K. Garg v. Union of India & Ors.: "The court must always remember that 'legislation is directed to practical problems, that the economic mechanism is highly sensitive and complex, that many problems are si....
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....ity of India. Even Entry 3 of List III, it is submitted, does not warrant the said enactment. So far as SAFEMA is concerned, it is argued, it is not relatable to any of the Entries 1 to 96 in List I or to any of the Entries in List III. We are not prepared to agree. COFEPOSA is clearly relatable to Entry 3 of List III inasmuch as it provides for preventive detention for reasons connected with the security of the State as well as the maintenance of supplies and services essential to the community besides Entry 9 of List I. While Entry 3 of List III speaks of "security of a State", Entry 9 of List I speaks of "security of India". Evidently, they are two distinct and different expressions. "Security of a State" is a much wider expression. A State with a weak and vulnerable economy cannot guard its security well. It will be an easy prey to economic colonisers. We know of countries where the economic policies are not dictated by the interest of that State but by the interest of multinationals and/or other powerful countries. A country with a weak economy is very often obliged to borrow from International Financial Institutions who in turn seek to dictate the economic priorities of the b....
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....ased to exist and continuation of impugned provision in COFEPOSA was violative of Article 21 read with Articles 14 and 19 of the Constitution. 52. Para 151(v) in I.R. Coelho (AIR 2007 SC 861 : 2007 AIR SCW 611) leaves no manner of doubt that where the validity of any Ninth Schedule law has already been upheld by this Court, it would not be open to challenge such law again on the principles declared by the judgment. The constitutional validity of COFEPOSA has already been upheld by this Court in Amratlal Prajivandas14 and, therefore, it is not open for challenge again. On this ground alone the challenge to the constitutional validity of the impugned provision must fail. Despite this, we intend to consider the forceful submission made by the learned counsel for the petitioners that on repeal of FERA and enactment of FEMA (FEMA did not regard its violation of criminal offence) an act where no punitive detention (arrest and prosecution) is even contemplated or provided under law, such an act cannot be made the basis for preventive detention and any law declaring it to be prejudicial to the interest of the State so as to invoke the power of preventive detention is violative of Articles....
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....tutional mandate that preventive detention cannot exist for an act where such act is not a criminal offence and does not provide for punishment. An act may not be declared as an offence under law but still for such an act, which is an illegal activity, the law can provide for preventive detention if such act is prejudicial to the state security. After all, the essential concept of preventive detention is not to punish a person for what he has done but to prevent him from doing an illegal activity prejudicial to the security of the State. Strictly speaking, preventive detention is not regulation (many people call it that way), it is something much more serious as it takes away the liberty of a person but it is accepted as a necessary evil to prevent danger to the community. The law of preventative detention arms the State with precautionary action and must be seen as such. Of course, the safeguards that the Constitution and preventive detention laws provide must be strictly insisted upon whenever the Court is called upon to examine the legality and validity of an order of preventive detention. 62. It is too naive to suggest that in today's economic scenario of abundant foreign exch....
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....in that case the Supreme Court concluded that the Authority was unaware of even clear language of the provision, the order was vitiated by non application of mind. A specific contention as mentioned in paragraph 4 of the judgment of the Supreme Court has been, therefore, accepted. The distinction between the safety of India and which may be assumed to be public safety and maintenance of public order was not reflected and was, therefore, not maintained. Why the detention order necessary and in order to prevent which activities and which could be said to be prejudicial to the safety of India and maintenance of public order must be spelt out. 17. We do not see how this judgment can have any application to the facts and circumstances of the present case. Equally, the reliance placed on the judgment in the case of "Ekta Satish Choudhary" (supra) is misplaced. There as well the Division Bench found that, there was complete variance inasmuch as the facts related to acts of smuggling and not the act of abetment of smuggling. This fundamental and basic distinction having been not adhered to and the order not reflecting application of mind to same that it was quashed and set aside by the Di....
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....icial activities of the detenu, it would have prevented departure from India, but that by itself does not mean that the detaining authority in any way is prevented in law from making order of detention. The passport is not surrendered nor is it in custody of the Authority. It is with the detenu. There was, therefore, a definite apprehension that the detenu would use it to smuggle foreign currency out of India. The satisfaction in that behalf is thus based on cogent and reliable material including the past record of the detenu. Thus, there was an application of mind to germane and relevant factors necessary to invoke Section 3(1)(i) of the COFEPOSA. 20. In the present case, reading of the undertaking and a copy of which has been annexed at page 94 of the paper book shows that it is a condition on which the bail has been granted. The condition inter alia is that the detenu shall attend the office of the officer or the Court on every day on which the investigation or trial is held and an undertaking is given by the detenu that he will not leave India without prior written permission of the concerned officer or the Court as may be. This is not enough to nullify the subjective satisfac....