Revocation of Detention Order in Gold Smuggling Cases: Legal Advice
Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPSA), 1974 confers power to Central Government, State Government, Officer appointed by the Central Government in this behalf but such officer shall not be below the rank of the Joint Secretary to detain any person to prevent him from smuggling goods, or abetting the smuggling of goods, or indulging in concealing or keeping or transporting smuggled goods, or dealing in, smuggled gold otherwise than by engaging in keeping or concealing transporting smuggled goods, or harboring persons engaged in abetting the smuggling of goods or in smuggling goods.
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPSA), 1974 is legislated to detain a suspect or convict to prevent him from repeating the offence smuggling whereas the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act (SFEMA), 1976 is promulgated to forfeit the illegally acquired property by the only means mentioned under section 3 of the said act. The Customs Act (CA), 1962 provides penal provisions for offence of gold smuggling.
Application for Revocation of Detention Orders
The Central Government or the State Government may invoke the power given under section 11 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFESPSA), 1974 to modify or revoke the order of detention under section 3(1) of the said Act at any time.
The Hon’ble Punjab and Haryana High Court in the case of Major Singh v. State of Punjab and Others [CWP No. 2107/1990] has set aside the order of detention as the affected person was deprived of a representation before the Central Government on the application under section 11 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFESPSA), 1974. It is mandatory for the Central Government or the State Government under section 11 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFESPSA), 1974 to hear the applicant before disposal of the application.
Sabir Ahmed v. Union of India [W P (Civil) No. 168/1980], wherein the Hon’ble Supreme Court held that there is no substance in the argument of the Central Government that it is under no duty to consider representation made to it by the detenu if it simply reiterate the same statement of facts, allegations, and arguments which were contained in the representation made to the detaining authority cause in the day to day experience facts which are considered as not so essential by a Tribunal or Competent authority but these facts thereto appeared too essential by a higher court upon appeal. Section 11 of the said act is a supervisory as well as discretionary power conferred to the Central Government. It is a discretionary power coupled with a duty. This duty is inherent in the very nature of the court. This is intended to be an auxiliary safeguard or check against the improper exercise of its power of detention by the detaining authority or the State Government. That’s why in the present case the Supreme Court set aside the detention and directed release of the detenu after observing unreasonable delay from the end of the Central Government to hear the detenu under Section 11 of the said Act.
The aforementioned ground is the best criminal defense which would help the accused to save a lot of time, money and reputation.
Authored By: Adv. Anant Sharma & Satwik Sharma