THE CONSERVATION OF FOREIGN EXCHANGE AND PREVENTION OF
SMUGGLING ACTIVITIES ACT, 1974
An Act to provide for preventive detention in certain cases for the purposes of conservation and augmentation of foreign exchange and prevention of smuggling activities and for matters connected therewith. Whereas violations of foreign exchange regulations and smuggling activities are having an increasingly deleterious effect on the national economy and thereby a serious adverse effect on the security of the State; And whereas having regard to the persons by whom and the manner in which such activities or violations are organized and carried on, and having regard to the fact that in certain areas which are highly vulnerable to smuggling, smuggling activities of a considerable magnitude are clandestinely organised and carried on it is necessary for the effective prevention of such activities and violations to provide for detention of persons concerned in any manner therewith; Be it enacted by Parliament in the twentyfifth !ear of the "epublic of #ndia as follows$ % 1. Short title extent and commencement. ? &'( )his Act may be called the *onservation of +oreign and Prevention of Smuggling Activities Act, ',-./ &0( #t extends to the whole of #ndia/ &1( #t shall come into force on such i [1]2date3 as the *entral 4overnment may, by notification in the official 4azette, appoint/ 2. Definitions . ? #n this Act, unless the context otherwise re5uires, % &a( ?appropriate Government? means, as respects a detention order made by the *entral 4overnment or by an officer of the *entral 4overnment or a person detained under such order, the *entral 4overnment, and as respects a detention order made by a State 4overnment or by an officer of a State 4overnment or a person detained under such order, the State 4overnment; &b( ?detention order? means an order made under Section 1; &c( ?foreigner? has the same meaning as in the +oreigners Act, ',.6 &1' of ',.6(; &d( ?Indian customs waters? has the same meaning as in clause &07( of Section 0 of the *ustoms Act, ',60 &80 of ',60(; &e( ?Smuggling?, has the same meaning as in clause &1,( of Section 0 of the *ustoms Act, ',60, and all its grammatical variations and cognate expressions shall be construed accordingly; &f( ?State Government?, in relation to a 9nion territory, means the administrator thereof/ &g( any reference in this Act to a law which is not in force in the State of :ammu and ;ashmir shall, in relation to that State, be construed as a reference to the corresponding law, if any, in force in that State/ 3. Power to make orders detaining certain persons . ? &'( )he *entral 4overnment or the State 4overnment or any officer of the *entral 4overnment, not below the ran< of a :oint Secretary to that 4overnment, specially empowered for the purposes of this section by that 4overnment, or any officer of a State 4overnment, not below the ran< of a Secretary to that 4overnment, specially empowered for the purposes of this section by that 4overnment, may, if satisfied, with respect to any person &including a foreigner(, that, with a view to preventing him from acting in any manner pre=udicial to the conservation or augmentation of foreign exchange or with a view to preventing him from % &i( smuggling goods, or &ii( abetting the smuggling of goods, or &iii( engaging in transporting or concealing or <eeping smuggled goods, or &iv( dealing in smuggled goods otherwise than by engaging in transporting or concealing or <eeping smuggled goods, or &v( harbouring persons engaged in smuggling goods or in abetting the smuggling of goods, it is necessary so to do, ma<e an order directing that such person be detained$ ii [2]2Provided that no order of detention shall be made on any of the grounds specified in this subsection on which an order of detention may be made under Section 1 of the Prevention of #llicit )raffic in >arcotic ?rugs and Psychotropic Substances Act, ',77 or under Section 1 of the :ammu and ;ashmir Prevention of #llicit )raffic in >arcotic ?rugs and Psychotropic Substances @rdinance, ',77/3 &0( When any order of detention is made by a State 4overnment or by an officer empowered by a State 4overnment, the State 4overnment shall, within ten days, forward to the *entral 4overnment a report in respect of the order/ &1( +or the purposes of clause &8( of Article 00 of the *onstitution, the communication to a person detained in pursuance of a detention order or the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention/ *omments % "epresentation % #f the representation has been sent to the 4overnor directly and not sent to the *hief Secretary that by itself will not render the representation inconsiderable/ Ifath Sultana v. Govt. of Tamil Nadu by Addl. Secretary to Govt. ublic !S"# $ept/ ',,0 *ri/A/: ''-- &Bad(/ % ?etention order % ?etenu categorically stated that contraband were inventoried and duty has been paid % ?etaining authority should have called for custom clearance card etc/ to verify the fact % failure to do so vitiates the order/ %enugopal? v. State of Tamil Nadu. ',,' *ri/ A/: 876 &Badras( % Cxpression %engaging% in clause &iii( of subsection &'( of Section 1 has no relation to the number of pre=udicial activities indulged in by the detenu/ &egh'ibhai . (hanushabi v. State of &aharashtra and another. ',,. *ri/ A/: 0'.- D ',,. &0( Bom *" 'E1 &Bom(/ % *onfessional statement % @rder of detention % "etraction % After being alive to the fact of retraction, the detaining authority can still arrive at a sub=ective satisfaction to prematurely detain accused/ Arun )umar Soni v. *nion of India. %',,0 *ri/A/:/ 181' &Bad( % ?etention @rder % *onfirmation of order after expiry of statutory% period of 1 months vitiates detention/ Tapan Saha v. *nion of India and others. ',,1 *ri/A/: '088 D ',,1 &#( *rimes 867 &?elhi( % ?etention @rder % Passing% of after '. months after% date of incident % Cxcuse of procedural delay is no ground% to =ustify delay/ Satnam Singh v. *nion of India and others. ',,0 *ri/A/: 1,6' D ',,0 &0( *rimes% ''11 &?elhi( % ?etention % Process of case by high officials at preliminary stage before sending the mater to detaining authority is not illegal/ ).T. Sainaba v. State of )erala and others. ',,1 *ri/A/: 0E'- &;er( % #nterview with counsel % 4rant% of permission with certain restrictions % >o pre=udice caused by conditions and restrictions imposed/ +umana (egum v. Govt. of A.. and another. ',,0 *ri/A/:/ 18'0 &A/P( % ?etention% order % *an be passed against a person already in =udicial custody/ Abdul +ahiman and others. vs *nion of India and others. ',,0 *ri/A/: 10-- &;ant/( % ?etention % *ompetent Authority % :urisdiction % *annot be challenged at predetention stage/ $arshan Singh v. *nion Territory, New $elhi. %',,8 *ri/A/: '0-,/ &PFG( % ?etention % ?etenu not able to read his own statement in Cnglish % 4rounds cannot be deemed to have been communicated to him % ?etention order bad/ Sumhadi (in &aorais, Indonesian National v. *nion of India? and others ',,0 *ri/A/:/ 0.E, &4u=(%%%%%%%%%%%%% %%% % Smuggling activities % An improper import or its attempt would brand the concerned activity as the HSmuggling ActivityI/ A. &ohammed v. State of )erala. ',,8 *ri/A/: '766 &;er/( 4. Execution of detention orders . ? A detention order may be executed at any place in #ndia in the manner provided for the execution on warrants of arrest under the *ode of *riminal Procedure, ',-1 &0 of ',-.(/ . Power to regulate place and conditions of detention . ? Cvery person in respect of whom a detention order has been made shall be liable % &a(% to be detained in such place under such conditions including conditions as to maintenance, interviews or communication with others, discipline and punishment for breaches of discipline, as the appropriate 4overnment may, by general or special order, specify; and &b(% to be removed from one place of detention to another place of detention, whether within the same State or in another State by order of the appropriate 4overnment$ Provided that no order shall be made by a State 4overnment under clause &b( for the removal of a person from one State to another State except with the consent of the 4overnment of that other State/ !". #rounds of detention se$era%le. ? Where a person has been detained in pursuance of an order of detention under subsection &'( of Section 1 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly % &a(% such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are % &i(% vague, &ii(% nonexistent, &iii(% not relevant, &iv(% not connected or not proximately connected with such person, or &v(% invalid for any other reason whatsoever, and it is not therefore possible to hold that the 4overnment or officer ma<ing such order should have been satisfied as provided in sub section &'( of Section 1 with reference to the remaining ground or grounds and made the order of detention; &b(% the 4overnment or officer ma<ing the order of detention shall be deemed to have made the order of detention under the said sub section &'( after being satisfied as provided in that subsection with reference to the remaining ground or grounds/ &. Detention orders not to %e in$alid or inoperati$e on certain grounds. ? >o detention order shall be invalid or inoperative merely by reason % &a( %that the person to be detained thereunder is outside the limits of the territorial =urisdiction of the 4overnment or the officer ma<ing the order of detention, or &b(% that the place of detention of such person is outside the said limits/ '. Powers in relation to a%sconding persons. ? &'( #f the appropriate 4overnment has reason to believe that a person in respect of whom a detention order has been made has absconded or is concealing himself so that the order cannot be executed, that 4overnment may % &a(% ma<e a report in writing of the fact to a Betropolitan Bagistrate or a Bagistrate of the first class having =urisdiction in the place where the said person ordinarily resides; and thereupon the provisions of Sections 70, 71, 7. and 78 of the *ode of *riminal Procedure, ',-1 &0 of ',-.(, shall apply in respect of the said person and his property as if the order directing that he be detained were a warrant issued by the Bagistrate; &b(% by order notified in the official 4azette direct the said person to appear before such officer, at such place and within such period as may be specified in the order; and if the said person fails to comply with such direction, he shall, unless he proves that it was not possible for him to comply therewith and that he had, within the period specified in the order, informed the officer mentioned in the order of the reason which rendered compliance therewith impossible and of his whereabouts, be punishable with imprisonment for a term which may extend to one year or with fine or with both/ &0( >otwithstanding any thing contained in the *ode of *riminal Procedure, ',-1 &0 of ',-.(, every offence under clause &b( of sub section &'( shall be cognisable/ (. "d$isor) *oards. ? +or the purposes of subclause &a( of clause &.(, and subclause &c( of clause &-( of Article 00 of the *onstitution, % &a(% the *entral 4overnment and each State 4overnment shall, whenever necessary, constitute one or more Advisory Boards each of which shall consist of a *hariman and two other persons possessing the 5ualification specified in subclause &a( of clause &.( of Article 00 of the *onstitution; &b(% save as otherwise provided in Section ,, the appropriate 4overnment shall, within five wee<s from the date of detention of a person under a detention order ma<e a reference in respect thereof to the Advisory Board to ma<e the report under subclause &a( of clause &.( of Article 00 of the *onstitution; &c(% the Advisory Board to which a reference is made under clause &b( shall after considering the reference and the materials placed before it and after calling for such further information as it may deem necessary from the appropriate 4overnment or from any person called for the purpose through the appropriate 4overnment or from the person concerned, and if, in any particular case, it considers it essential so to do or if the person concerned desires to be heard in person, after hearing him in person, prepare its report specifying in a separate paragraph thereof its opinion as to whether or not there is sufficient cause for the detention of the person concerned and submit the same within eleven wee<s from the date of detention of the person concerned; &d(% when there is a difference of opinion among the members forming the Advisory Board the opinion of the ma=ority of such members shall be deemed to be the opinion of the Board; &e(% a person against whom an order of detention has been made under this Act shall not be entitled to appear by any legal practitioner in any matter connected with the reference to the Advisory Board, and the proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be confidential; &f(% in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate 4overnment may confirm the detention order and continue the detention of the person concerned for such period as it thin<s fit and in every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned, the appropriate 4overnment shall revo<e the detention order and cause the person to be released forthwith/ iii [3]+,. -ases in which and circumstances under which persons ma) %e detained for periods longer than three months without o%taining the opinion of "d$isor) *oard. ? %&'( >otwithstanding anything contained in this Act, any person &including a foreigner( in respect of whom an order of detention is made under this Act at any time before the iv [4]21'st day of :uly, ',,13 may be detained without obtaining, in accordance with the provisions of subclause &a( of *lause &.( of Article 00 of the *onstitution, the opinion of an Advisory Board for a period longer than three months but not exceeding six months from the date of his detention, where the order of detention has been made against such person with a view to preventing him from smuggling goods or abetting the smuggling of goods or engaging in transporting or concealing or <eeping smuggled goods and the *entral 4overnment or any @fficer of the *entral 4overnment, not below the ran< of an Additional Secretary to that 4overnment, specially empowered for the purposes of this section by that 4overnment, is satisfied that such person, % &a(% smuggles or is li<ely to smuggle goods into, out of or through any area highly vulnerable to smuggling; or &b(% abets or is li<ely to abet the smuggling of goods into, out of or through any area highly vulnerable to smuggling; or &c(% engages or is li<ely to engage in transporting or concealing or <eeping smuggled goods in any area highly vulnerable to smuggling, and ma<es a declaration to that effect within five wee<s of the detention of such person/ -xplanation '/ % #n this subsection, %area highly vulnerable to smuggling% means, % &i(% the #ndian customs waters, contiguous to v [5]2the States of 4oa, 4u=arat, ;arnata<a, ;erala, Baharashtra, )amil >adu and the 9nion territories of ?aman and ?iu and Pondicherry3; &ii(% the inland area fifty <ilometres in width from the coast of #ndia falling within the territories of vi [6]2the States of 4oa, 4u=arat ;arnata<a, ;erala, Baharashtra, )amil >adu and the 9nion territories of ?aman and ?iu and Pondicherry3; &iii(% the inland area fifty <ilometres in width from the #ndia Pa<istan border in the State of 4u=arat, :ammu and ;ashmir, Pun=ab and "a=asthan; &iv(% the customs air port of ?elhi; and &v(% such further or other #ndian customs waters, or inland area not exceeding one hundred <ilometres in width from any other coast or border of #ndia, or such other customs station, as the *entral 4overnment may, having regard to the vulnerability of such waters, area or customs station, as the case may be, to smuggling, by notification in the official 4azette, specify in this behalf/ -xplanation 0/ % +or the purposes of Cxplanation ', %customs airport% and %customs station% shall have the same meaning as in clauses &'E( and &'1( of Section 0 of the *ustoms Act, ',60 &80 of ',60(, respectively/ &0( #n the case of any person detained under a detention order to which the provisions of subsection &'( apply, Section 7 shall have effect sub=ect to the following modifications, namely$ % &i(% in clause &b(, for the words %shall, within five wee<s%, the words %shall, within four months and two wee<s% shall be substituted; &ii(% in clause &c(, % &'( for the words %the detention of the person concerned%, the words %the continued detention of the person concerned% shall be substituted; &0( for the words %eleven wee<s% the words %five months and three wee<s% shall be substituted%; &iii(% in clause &f(, of the words %for the detention%, at both the places where they occur, the words %for the continued detention% shall be substituted/ *omments % *ontinued detention % @rder of declaration under%% section , is to be sent along with original order/ .awabi Sayed Arif Sayed .anif v. / .mingliana and others. ',,1 *ri/A/: '-0D A#" ',,1 S* 7'E D ',,1&#( S** '61D',,0&6( :) '60D',,0 &0( Scale -,6&S*( % ?etention % >o statutory period specified under section ,&'( for serving declaration to the detenues % ?etention not vitiated due to delay in communication of declaration under Section ,/ .awabi Sayed Arif Sayed .anif v. / .mingliana and others. ',,1 *ri/A/: '-0 D A#" ',,1 S* 7'E D ',,1&'(S** '61 D ',,0&6( :) '60 D ',,0&0( Scale -,6&S*( 1.. /aximum period of detention. ? )he maximum period for which any person may be detained in pursuance of any detention order to which the provisions of Section , do not apply and which has been confirmed under *lause &f( of Section 7 shall be one year from the date of detention and the maximum period for which any person may be detained in pursuance of any detention order to which the provisions of Section , apply and which has been confirmed under clause &f( of Section 7 read with subsection &0( of Section , shall be two years from the date of detention$ Provided that nothing contained in this section shall affect the power of the appropriate 4overnment in either case to revo<e or modify the detention order at any earlier time/ 11. 0e$ocation of detention orders. ? &'( Without pre=udice to the provisions of Section 0' of the 4eneral *lauses Act, '7,- &'E of '7,-( a detention order may, at any time, be revo<ed or modified % &a(% notwithstanding that the order has been made by an officer of a State 4overnment, by that State 4overnment or by the *entral 4overnment; &b(% notwithstanding that the order has been made by an officer of the *entral 4overnment or by a State 4overnment, by the *entral 4overnment/ &0( )he revocation of a detention order shall not bar the ma<ing of another detention order under Section 1 against the same person/ 12. 1emporar) release of persons detained. ? &'( )he *entral 4overnment may, at any time, direct that any person detained in pursuance of a detention order made by that 4overnment or an officer subordinate to that 4overnment or by a State 4overnment or by an officer subordinate to a State 4overnment, may be released for any specified period either without conditions or upon such conditions specified in the direction as that person accepts, and may, at any time, cancel his release/ &'A( A State 4overnment may, at any time, direct that any person detained in pursuance of a detention order made by that 4overnment or by an officer subordinate to that 4overnment may be released for any specified period either without conditions or upon such conditions specified in the direction as that person accepts, and may, at any time, cancel his release/ &0( #n directing the release of any person under subsection &'( or subsection &'A(, the 4overnment directing the release may re5uire him to enter into a bond with sureties for the due observance of the conditions specified in the direction/ &1( Any person released under subsection &'( or subsection &' A( shall surrender himself at the time and place, and to the authority, specified in the order directing his release or cancelling his release, as the case may be/ &.( #n any person fails without sufficient cause to surrender himself in the manner specified in subsection &1(, he shall be punishable with imprisonment for a term which may extend to two years, or with fine, or with both/ &8( #f any person released under subsection &'( or subsection &'A( fails to fulfil any of the conditions imposed upon him under the said subsection or in the bond entered into by him, the bond shall be declared to be forfeited and any person bound ther by shall be liable to pay the penalty thereof/ &6( >otwithstanding anything contained in any other law and save an otherwise provided in this section, no person against whom a detention order made under this Act is in force shall be released whether on bail or bail bond or otherwise/ 12!". Special pro$isions for dealing with emergenc). ? &'( >otwithstanding anything contained in this Act or any rules of natural =ustice, the provisions of this section shall have effect during the period of operation of the Proclamation of Cmergency issued under clause &'( of Article 180 of the *onstitution of the 1rd day of ?ecember, ',-', or the Proclamation of Cmergency issued under that clause on the 08th day of :une, ',-8, or a period of twenty four months from the 08th day of the :une, ',-8, whichever period is the shortest/ &0( When ma<ing an order of detention under this Act against any person after the commencement of the *onservation of +oreign Cxchange and Prevention of Smuggling Activities &Amendment( Act, ',-8, the *entral 4overnment or the State 4overnment or, as the case may be, the officer ma<ing the order of detention shall consider whether the detention of such person under that Act is necessary for dealing effectively with the emergency in respect of which the Proclamations referred to in subsection &'( have been issued &hereinafter in this section referred to as the emergency( and if, on such consideration, the *entral 4overnment or the State 4overnment or, as the case may be, the officer is satisfied that it is necessary to detain such person for effectively dealing with the emergency, that 4overnment or officer may ma<e% a declaration to that effect and communicate a copy of the declaration to the person concerned$ Provided that where such declaration is made by an officer, it shall be reviewed by the appropriate 4overnment within fifteen days from the date of ma<ing of the declaration and such declaration shall cease to have effect unless it is confirmed by that 4overnment, after such review, within the said period of fifteen days/ &1( )he 5uestion whether the detention of any person in respect of whom a declaration has been made under subsection &0( continues to be necessary for effectively dealing with the emergency shall be reconsidered by the appropriate 4overnment within four months from the date of such declaration and thereafter at intervals not exceeding four months, and if, on such reconsideration, it appears to the appropriate 4overnment that the detention of the person is no longer necessary for effectively dealing with the emergency, that 4overnment may revo<e the declaration/ &.( #n ma<ing any consideration, review or reconsideration under sub section &0( or &1(, the appropriate 4overnment or officer may, if such 4overnment or officer considers it to be against the public interest to do otherwise, act on the basis of the information and materials in its or his possession without disclosing the facts or giving an opportunity of ma<ing a representation to the person concerned/ &8( #t shall not be necessary to disclose to any person detained under a detention order to which the provisions of subsection &0( apply, the grounds on which the order has been made during the period the declaration made in respect of such person under that subsection is in force, and, accordingly, such period shall not be ta<en into account for the purposes of subsection &1( of Section 1/ &6( #n the case of every person detained under a detention order to which the provisions of subsection &0( apply, being a person in respect of whom a declaration has been made thereunder, the period during which such declaration is in force shall not be ta<en into account for the purpose of computing % &i(% the periods specified in clauses &b( and &c( of Section 7; &ii(% the periods of %one year% and %five wee<s% specified in sub section &'(, the period of %one year% specified in subsection &0( &i(, and the period of %six months% specified in subsection &1(, of Section ,/ 13. Protection of action taken in good faith. ? >o suit or other legal proceeding shall lie against the *entral 4overnment or a State 4overnment, and no suit, prosecution or other legal proceedings shall lie against any person, for anything in good faith done or intended to be done in pursuance of this Act/ 14. 0epeal. ? )he Baintenance of #nternal Security &Amendment( @rdinance, ',-. &'' of ',-.( shall, on the commencement of this Act, stand repealed and accordingly the amendments made in the Baintenance of #nternal Security Act, ',-' &06 of ',-'( by the said @rdinance shall, on such commencement, cease to have effect i ii iii iv v vi