2020 (8) TMI 230 - GUJARAT HIGH COURT

Prevention Detention Order - Smuggling of gold - conservation and augmentation of foreign exchange - time limitation - retraction of statements - burden to prove non-involvement - COFEPOSA Act - HELD THAT:- The COFEPOSA Act, 1974 has been enacted for the purpose of 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. As per the object of the Act, as there were violations of foreign exchange regulations and smuggling activities were having an increasingly deleterious effect on the national economy and thereby a serious adverse effect on the security of the State, to prevent such activities and for providing detention of persons concerned in any manner therewith by preventive detention, the Act has been enacted, which has come into force on 30.12.1974 - The importance of foreign exchange in the development of a country needs no emphasis. The conservation and augmentation of foreign exchange continued to be an important thing. All though, contravention of its provision is not regarded as a criminal offence yet it is an illegal activity jeopardizing the very economic fabric of the country. For violation of Foreign Exchange Regulation, penalty can be levied and its noncompliance results in civil imprisonment of the defaulter. But whole intent and idea of the COFEPOSA Act is to prevent violation of Foreign Exchange and Regulation of smuggling activities which have serious and deleterious effect on national economy and security.

The power of prevention detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not co-relate to prosecution even if it relies on certain facts on which prosecution is launched or may have been launched. An order of preventive detention may be made before or during prosecution. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also no barred to prosecution - The order of preventive detention is based on a reasonable prognosis of future behavior of a person, based on his past, in light of his surrounding circumstances.

As per the provisions contained in subsection (2) of Section 3, if the Order is passed by the State Government or by an officer empowered by a State Government, it is their bounder duty to forward to the Central Government a report in respect of the order within 10 days - As per sub-section 3 of Section 3, to satisfy the purposes of clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made, is required to 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 twenty days, from the date of detention - thus, the time frame work has been provided in Section 3 regarding communication of the grounds of detention of the person concerned i.e. detenue. It has also revealed from subsection 3 of Section 3 that the satisfaction of the authority is material one and the said satisfaction should be subjective satisfaction. The grounds of such detention may be as referred to above in (i) to (v).

On conjoint reading of Section 3 with Section 5A it is crystal clear that the order of detention passed for more than two grounds and if one of the grounds is not applicable or vague or nonexistent or nonrelevant or not connected or any proximately connected with such person, such detention order cannot be declared as invalid detention order. If the detention order is valid for the purpose of any one of the grounds stated in clause (i) to (v) of subsection (1) of Section 3, then such order of detention, in the given facts and circumstances, can be treated as legal and valid - the provision of Section 8 provides for statutory obligation of the concerned appropriate Government to refer the detention order to the Advisory Board within five weeks from the date of detention of the person. At the same time, it is the duty of the Advisory Board to submit its report within eleven weeks from the date of detention of the person concerned.

The detaining authority has properly applied his mind while passing individual detention order in respect of each of the petitioner. It is also crystal clear that necessary safeguards are followed by the detaining authority. All the points raised by the petitioner challenging the detention orders are devoid of merits. There is no legal infirmity in the detention orders passed against the present petitioners. This Court is of the considered view that the impugned detention orders are sustainable in the eyes of law and does not deserve to be set aside.

Petition dismissed.