Apex Law Journal
Apex Law Journal
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Editor

Neha Goel, Advocate

Advisory Board

S.C. Khunger, Advocate

Rohit Bansal, Advocate

Varinder Singh Kanwar, Advocate

Hittan Nehra, Advocate

Judgments on Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974

Friday, December 11, 2009
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 — Section 3(1)(i) — Foreign Exchange Management (Export and Import of Currency) Regulations, 2000, Regulation 5 — Appellant, in the present case, carried foreign currency in person which is in contravention of the amount stated in Regulation 5 of Foreign Exchange Management (Export and Import of Currency) Regulations, 2000 — State impounded the passport of the appellant and also passed a preventive detention order under section 3(1)(i) COFEPOSA so as to prevent him from abetting the smuggling of goods by staying in the country — Held, there was no pressing need to curtail the liberty of a person by passing a preventive detention order — Foreign currency cannot be smuggled as the person cannot move out of the country on account of his passport being impounded — Merely because a person cannot otherwise survive in the country, is no basis to conclude that a person will again resort to smuggling activities, or abetting such activities by staying in the country — There is higher standard of proof required in these circumstances involving the life and liberty of a person — The material provided by the respondents is not enough to justify the curtailment of the liberty of the appellant under an order of preventive detention in the fact and circumstances of the case. 

 
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 — Section 3(1) (ii) — Held, Section 3(1) (ii) of COFEPOSA, authorizes the State Government to pass a preventive detention order to preventing him from abetting smuggling of goods.  

 
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 — Order of detention — It is not necessary that there should be multiplicity of grounds for making or sustaining an order of detention. 
 

 
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 — Preventive detention — Held, the Act contemplates two situations for exercise of the power of preventive detention, viz., to prevent violation of foreign exchange regulations and to prevent smuggling activities — The justification for passing the order of detention is suspicion or reasonable probability of the person sought to be detained to prevent him in carrying on smuggling activities in the future — In other words, what needs to be proved is the potentiality or propensity of the person to engage in future prejudicial activities.

 
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 — Even a single incident is enough to prove the propensity and potentiality of the detenue so as to justify the order of preventive detention — Pooja Batra v. Union of India, [(2009) 5 SCC 296] relied.     

 
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 — Even a single solitary act can prove the propensity and potentiality of the detenu to carry on with similar smuggling activities in future — The mere fact that on one occasion person smuggled goods into the country may constitute a legitimate basis for detaining a person under COFEPOSA — For this purpose, the antecedents of the person, facts and circumstances of the case needs to be taken into consideration. 

 
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