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


  • Introduction to the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act

    1. Short title, extent and commencement –

    [13th December, 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 organized 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 there with ;

    BE it enacted by Parliament in the Twenty-fifth Year of the Republic of India as follows

    (1) This Act may be called the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.

    (2) It extends to the whole of India.

    (3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint
     

    2. Definitions –

    In this Act, unless the context otherwise requires, –

    (a) “appropriate Government” means, as respects a detention order made by the Central Government or by an officer of the Central Government or a person detained under such order, the Central Government, and as respects a detention order made by a State Government or by an Officer of a State Government or a person detained under such order, the State Government ;

    (b) “detention order” means an order made under section 3;

    (c) “foreigner” has the same meaning as in the Foreigners Act, 1946 (31 of 1946) ;

    (d) “Indian customs waters” has the same meaning as in clause (28) of section 2 of the Customs Act, 1962 (52 of 1962) ;

    (e) “smuggling” has the same meaning as in clause (39) of section 2 of the Customs Act, 1962, and all its grammatical variations and cognate expressions shall be construed accordingly ;

    (f) “State Government”, in relation to a Union Territory, means the Administrator thereof ;

    (g) any reference in this Act to a law which is not in force in the State of Jammu and Kashmir shall, in relation to that State, be construed as a reference to the corresponding law, if any, in force in that State.

    COMMENTS

    “Indian Customs Waters” means the waters extending into the sea upto the limit of continuous zone of India under section 5 of the Territorial Waters, Continental Shelf, Exclusive Economic Zone an Other Maritime Zones Act, 1976 (80 of 1976) and includes any bay, gulf, harbour, creek or tidal river.

    “Smuggling” in relation to any goods, means any act or omission which will render such goods liable to confiscation under section 111 or section 113.
     

    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 the 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

    (ii) abetting the smuggling of goods, or

    (iii) engaging in transporting or concealing or keeping smuggled goods, or

    (iv) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or

    (v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods,

    It is necessary so to do, make an order directing that such person be detained :

    [(Note:- Added by Act No.46 of 1988, S.15 (w.e.f. 4-7-1988) Provided that no order of detention shall be made on any of the grounds specified in this sub-section on which an order of detention may bemade under section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 or under section 3 of the Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Ordinance, 1988]. (J&K Ordinance, 1 of 1988).

    (2) When any order of detention is made by a State Government or by an officer empowered by a State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of the order.

    (3) For 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 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.

    COMMENTS

    A. Subjective satisfaction – Validity of

    It is well settled that the subjective satisfaction requisite on the part of the detaining authority, the formation of which is a condition precedent to the passing of the detention order will get initiated if material or vital facts which would have a bearing on the issue and would influence the mind of the detaining authority one way or the other are ignoredor not considered by the detaining authority before issuing the detention order. [Varinder Singh Batra v.Union of India & Ors., (1993) 3 Crimes 637 (Delhi)]. R / t: Ashadevi v.Shivraj & Anr., AIR 1979 Sc 447. R/t. Ayya alias Ayub v.State of U.P & Anr., (1989) 1 Crimes 8 (S.C.).

    If a piece of evidence which might reasonably have affected the decision whether or not to pass an order of detention is excluded from consideration, there would be a failure of application of mind, which in turn, vitiates the detention. [abid].

    There would be vitiation of the detention order on grounds of non-application of mind if a piece of evidence which was relevant though not binding, had not been considered at all. [ibid].

    If an important document on which reliance has been placed by the detaining authority and it has not been supplied to the detenu it is sufficient to vitiate the order of detention. [Mohammed Salim /Khatri v.Union of India & Anr., (1993) 3 Crimes 867 (Delhi)].

    It is the duty of the sponsoring authority to collect all the relevant material and place it before the detaining authority. The requisite subjective satisfaction the formation of which is a condition precedent to passing of a detention order will get vitiated if material or vital facts which would have bearing on the issue and weighted the satisfaction of the detaining authority one way or the other and influenced his mind are either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the detention order. [ibid] R/t. Dharamdas Shamlal Agarwal v.Police Commissioner & Anr., AIR 1989 SC 1282 as also Madan Gopal alias Madan Bhaiya v.Union of India & Ors. (1993) 49 Delhi Law Times 174.

    Every failure to furnish copy of a document to which reference is made in the grounds of detention under section 3(1) of COFEPOSA is not an infringement of article 22(5) of the Constitution fatal to the order of detention. It is only failure of furnish copies of such documents as were relied upon by the detaining authority, making it difficult for the detenu to make an effective representation that amounts to a violation of fundamental rights guaranteed by article 22(5).[abid] R/t Mst. L.M.S. Ummu Saleema v.B.B. Gujaral & Anr., AIR 1981 SC 1191.

    When the non-supply of copies of relevant documents has prevented the detenu from making an effect and purposeful representation, it results in violation of article 22(5) of the Constitution of India read with section 3(3) of the COFEPOSA. [ibid].

    Documents cannot be said irrelevant when they have been mentioned in the detention order and reliance has been placed upon them. [ibid].

    B. Grounds – Communication of

    Since the order is based on grounds to be served on the detenu, the order of detention could be passed only if the grounds are in existence and are prepared contemporaneously, otherwise the order of detention becomes purely illusory. [Pakhar Singh v.Union of India & Anr., (1993) 3 Crimes 765 (P & H) R/t. Krishna Murari Aggarwal v.Union of India, AIR 1975 SC 1877.

    It is the duty of the detaining authority to satisfy the court about the existence of the material and that he has not acted in a mechanical or cavalier manner while exercising the power. The detaining authority owes a duty to the detenu as wall as to the Court. An obligation of the detaining authority is to satisfy the Court that he has acted in accordance with law. [abid] R/t. Mohiuddin Tayab Sony v.State of Maharashtra & Anr., 1980 Crl. LJ. 1040 (Bom.) D.B.

    It is well settled that judicial scrutiny cannot be shut our merely on the ipsedixit of the detaining authority. [abid]. Ibid.

    The grounds of detention must be communicated in the language understood by the detenu. [In re: Smt. B.Ramprannamma, 1993 FAJ 485 (Cal Circuit Bench at Port Blair) D.B.]

    Article 22(5) of the Constitution requires that the grounds of detention must be communicated to the detenu. “Communicate” is a strong word. It requires that sufficient knowledge of the basic-facts constituting the grounds should be imparted effectively and fully to the detenu in writing in a language which he understands, so as to enable him to make a purposeful and effective representation. If the grounds are only verbally explained to the detenu and nothing in writing is left with him in a language which he understands, then that purpose is not served, and the constitutional mandate in article 22(5) is infringed. This follows from the decisions in Harikisan v. State of Maharashtra, AIR 1962 SC 911, and Hadibandhu Das v.District Magistrate, Cuttack and Ors., AIR 1969 SC 43.

    In the case of Smt. Raziya Umar Bakshi v.Union of India and Ors., AIR 1980 SC 1751, it was held by the Supreme Court that the service of the ground of detention on the detenue is a very precious constitutional right and where the grounds are couched in a language which is not known to the detenu, unless the contents of the grounds are fully explained and translated to the detenu, it will tantamount to not serving the grounds of detention to the detenue and would thus vitiate the detention ex-facie. In case where the detaining authority is satisfied that the grounds are couched in a language which is not known to the detenue, it must see to it that the grounds are explained to the detenu, a translated script is given to him and the grounds bear some sort of a certificate to show that the grounds have been explained to the detenue in the language which he understands. A bare statement at the stage when Habeas Corpus petition is filed in the Court by the detaining authority that these formalities were observed would be of no consequence particularly when it is not supported by any document or by any affidavit of the person who had done the job of explaining or translation.

    In the case of Mr. Kubic Dariusz v. Union of India and other, AIR 1990 SC 605, the Supreme Court observed that ‘it is settled law that the communication of the grounds which is required by the earlier part of clause (5) of article 22 is for the purpose of enabling the detenu to make a representation, the right to which is guaranteed by the latter part of the clause’. A communication in this context, must, therefore, mean imparting to the detenu sufficient and effective knowledge of the facts and circumstances on which the order of detention is passed, that is, of the prejudicial acts which the authorities attribute to him. Such a communication would be there when it is made in a language understood by the detenu.

    C. Execution – Prior to

    It is well settled that the High Courts have the powers to entertain and examine the grievances against the detention order prior to its execution. [Pakhar Singh v. Union of India & Anr., (1993) 3 Crimes 765 (P & H). R/t. Addl. Secretary to the Government of India & Ors. V.Smt. Alka Subhash Gadia & Anr., 1992 SCC (Crl.) 301.

    The grounds on which the courts have interfered with them at the preexecution stage are necessarily very limited in scope and number, viz., where the courts are prima facie satisfied (i) that the impugned order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds, or (v) that the authority which passed it has no authority to do so.

    It is well settled in our Constitution frame word that the power of directing preventive detention given to the appropriate authorities must be exercised in exceptional cases as contemplated by the various provisions of the different statutes dealing with preventive detention and should be used with great deal of circumspection. There must be awareness of the facts necessitating preventive custody of a person for social defence. If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. [Ibrahim Umarbhaya v. State of Gujarat & Ors., (1993) 3 Crimes 730 (Guj.) D.B.] R/t. Rameshwar Shaw v. District Magistrate, AIR 1964 SC 334.

    D. Pre-execution stage –

    Challenge at Detention order under the Act cannot be challenged at pre-execution stage merely on the ground that there was delay in its execution. [Inderjit Singh Chani v. Union of India & Anr., (1994) 1 Crimes 539 (Delhi)].

    E. Delay –

    Effect of Long and undue delay in passing the detention order snaps the nexus between the activity alleged and the activity sought to be curbed and shows that the detention order was passed mechanically without application of mind. When the detention order has been passed after a long delay and the service was also effected after delay the detention order is liable to be quashed. [Daljit Singh Sandhu v. Union of India & Ors., (1993) 3 Crimes 629 (Delhi)].

    No doubt it is true that if the detaining authority shows that there is a reasonable nexus between the prejudicial activity and the purpose of detention, the delay in passing the detention order has to be overlooked. [ibid].

    The delay in passing the detention order, if not adequately explained, vitiates the same. [ibid].

    Indeed more delay in passing a detention order is not conclusive. The authorities concerned must have due regard to the object with which the order is passed. Inordinate delay in passing of a detention order will raise genuine doubt about the satisfaction of the Detaining Authority.

    The test as to whether the detention order should be quashed on the ground of delay is not a rigid or mechanical test by merely counting the number of days or months; the court should examine whether the Detaining Authority has satisfactorily explained the delay. [Gurvinder Singh v. Under-Secretary, Home, Government of Punjab, (1993) 3 Crimes 760 (P & H) R/t. Lakshman Khatik v. State of W.B., AIR 1974 SC 1264 as also T.A. Abdul Rehman v. State of Kerala, (1989) 2 All India Criminal Law Reporter 294 (S.C.)].

    The detenu had been evading execution of the detention order hardly gives credit to the authorities incharge of enforcing the orders of detention. In case where the authorities are guilty of inaction after passing of the order, a reasonable conclusion has to be drawn that the detention order has lost nexus with the prejudicial activities. [ibid].
     

    4. Execution of detention order –

    A detention order may be executed at any place in India in the manner provided for the execution of warrants of arrest under the Code of Criminal Procedure, 1973 (2 of 1974).
     

    5. Power to regulate place and conditions of detention–

    Every person in respect of whom a detention order has been made shall be liable –

    (a) To be detained in such place and under such conditions including conditions as to maintenance, interviews or communication with others, discipline and punishment for breaches of discipline, as the appropriate Government 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 Government ;

    Provided that no order shall be made by a State Government under clause

    (b) for the removal of a person from one State to another State except with the consent of the Government of that other State.
     

    5A. Grounds of detention sever able –

    Where a person has been detained in pursuance of an order of detention under sub-section (1) of section 3 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) non-existent,

    (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 Government or officer making such order would have been satisfied as provided in sub-section (1) of section 3 with reference to the remaining ground or grounds and made the order of detention ;

    (b) the Government or officer making the order of detention shall be deemed to have made the order of detention under the said sub-section (1) after being satisfied as provide din that sub-section with reference to the remaining ground or grounds.
     

    6. Detention order not to be invalid or inoperative on certain grounds –

    No detention order shall be invalid or inoperative merely by reason –

    (a) That the person to be detained there under is outside the limits of the territorial jurisdiction of the Government or the officer making the order of detention, or

    (b) That the place of detention of such person is outside the said limits.
     

    7. Powers in relation to absconding persons–

    (1) If the appropriate Government 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, the Government may –

    (a) Make a report in writing of the fact to a Metropolitan Magistrate or a Magistrate of the first class having jurisdiction in the place where the said person ordinarily resides ; and thereupon the provisions of sections 82, 83, 84 & 85 of the Code of Criminal Procedure, 1973 (2 of 1974), 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 Magistrate ;

    (b) By order notified in the Official Gazette 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.

    (2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence under clause (b) of sub-section (1) shall be cognizable.
     

    8. Advisory Board–

    For the purposes of sub-clause (a) of clause (4), and sub-clause (c) of clause (7) of article 22 of the Constitution,-

    (a) The Central Government and each State Government shall, wherever necessary, constitute one or more Advisory Boards each of which shall consist of a Chairman and two other persons possessing the qualifications specified in sub-clause (a) of clause (4) of article 22 of the Constitution ;

    (b) Save as otherwise provided in section 9, the appropriate Government shall, within five weeks from the date of detention of a person under a detention order make a reference in respect thereof to the Advisory Board constituted under clause (a) to enable the Advisory Board to make the report under sub-clause (a) of clause (4) of article 22 of the Constitution ;

    (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 Government or from any person called for the purpose through the appropriate Government, 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 weeks 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 majority 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 Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks 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 Government shall revoke the detention order and cause the person to be released forthwith.

    9. Cases in which and circumstances under which persons may be detained for period longer than three months without obtaining the opinion of Advisory Board –

    (1) Notwithstanding 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 [(Note:- Subs. by Act No.52 of 1993, s.2 (w.e.f. 25-6-1993)) 31st of July, 1996], may be detained without obtaining, in accordance with the provisions of sub-clause (a) of clause (4) of article 22 of the Constitution, 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 keeping smuggled goods and the Central Government or any Officer of the Central Government, not below the rank of an Additional Secretary to that Government, specially empowered for the purposes of this section by that Government, is satisfied that such person,-

    (a) smuggles or is likely to smuggle goods into, out of or through any area highly vulnerable to smuggling ; or

    (b) abets or is likely to abet the smuggling of goods into, out of or through any area highly vulnerable to smuggling ; or

    (c) engages or is likely to engage in transporting or concealing or keeping smuggled goods in any area highly vulnerable to smuggling, and makes a declaration to that effect within five weeks of the detention of such person.

    Explanation 1 – In this Sub-section, “area highly vulnerable to smuggling” means,–

    (i) The Indian customs waters, contiguous to [(Note:- Subs. by Act No.23 of 1987, s.2 (w.e.f. 2.7.1987)) The States of Goa, Gujarat, Karnataka, Kerala, Maharashtra, Tamil Nadu and the Union territories of Daman and Diu and Pondicherry] ;

    (ii) The inland area fifty kilometers in width from the coast of India falling within the territories of [(Note:- Subs. by Act No.23 of 1987, s.2 (w.e.f. 2.7.1987)) States of Goa, Gujarat, Karnantaka, Kerala, Maharashtra, Tamil Nadu and the Union Territories of Daman and Diu and Pondicherry] ;

    (iii) The inland area fifty kilometres in width from the India-Pakistan border in the State of Gujarat, Jammu and Kashmir, Punjab and Rajasthan ;

    (iv) The customs air port of Delhi ; and

    (v) Such further or other Indian customs waters, or inland area not exceeding one hundred kilometres in width from any other coast or border of India, or such other customs station, as the Central Government 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 Gazette, specify in this behalf.

    Explanation 2 – For the purposes of Explanation 1, “customs airport” and “customs station” shall have the same meaning as in clauses (10) and (13) of section 2 of the Customs Act, 1962 (52 of 1962), respectively.

    (2) In the case of any person detained under a detention order to which the provisions of sub-section (1) apply, section 8 shall have effect subject to the following modifications, namely :-

    (i) in clause (b), for the words “shall, within five weeks”, the words “shall, within four months and two weeks” shall be substituted ;

    (ii) in clause (c), –

    (1) for the words “the detention of the person concerned”, the words “the continued detention of the person concerned” shall be substituted ;

    (2) for the words “eleven weeks”, the words “five months and three weeks” shall be substituted ;

    (iii) in clause (f), for the words “for the detention”, at both the places where they occur, the words “for the continued detention” shall be substituted.]

    COMMENTS

    “Customs airport” means any airport appointed under clause (a) of section 7 to be a customs airport.

    “Customs station” means any customs port, customs airport to land customs station.
     

    10. Maximum period of detention–

    The maximum period for which any person may be detained in pursuance of any detention order to which the provisions of section 9 do not apply and which has been confirmed under clause (f) of section 8 shall be [(Note:- Subs. by Act No.20 of 1976 for words “one year from the date of detention”) a period of one year from the date of detention or the specified period, whichever period expires later] and the maximum period for which any person may be detained in pursuance of any detention order to which the provisions of section 9 apply and which has been confirmed under clause (f) of section 8 read with sub-section (2) of section 9 shall be [(Note:- Ibid, for words “two years from the date of detention”) a period of two years from the date of detention or the specified period, whichever period expires later :

    Provided that nothing contained in this section shall affect the power of the appropriate Government in neither case to revoke or modify the detention order at any earlier time.

    [(Note:- Ins. by Act No.20 of 1976) Explanation.—In this section and in section 10A, “specified period” means the period during which the Proclamation of Emergency issued under clause (1) of article 352 of the Constitution on the 3rd day of December, 1971 and the Proclamation of Emergency issued under that clause on the 25th day of June, 1975, are both in operation.]
     

    10A. Extension of period of detention. –

    (1) Notwithstanding anything contained in any other contained in any other provision of this Act, the detention of every person detained under a detention order which has been confirmed under clause (f) of section 8 before the commencement of the Conservation of Foreign Exchange and Prevention of Smuggling Activities (Amendment) Act, 1976, and which is in force immediately before such commencement shall, unless his detention has been continued by the appropriate Government under the said clause for a period shorter than one year from the date of his detention, continue until the expiry of a period of one year from the date of his detention under such order or until the expiry of the specified period, whichever period expires later :

    Provided that nothing contained in this sub-section shall affect the power of the appropriate Government to revoke or modify such detention order at any earlier time.

    (2) Notwithstanding anything contained in any other provision of this Act, the detention of every person detained under a detention order which has been confirmed under clause (f) of section 8 read with sub-section (2) of section 9 before the commencement of the Conservation of Foreign Exchange and Prevention of Smuggling Activities (Amendment) Act, 1976, and which is in force immediately before such commencement, shall, unless his detention has been continued by the appropriate Government under the said clause (f) read with the said sub-section (2), for a period shorter than two years from the date of his detention, continue until the expiry of a period of two years from the date of his detention under such order or until the expiry of the specified period, whichever period expires later :

    Provided that nothing contained in this sub-section shall affect the power of the appropriate Government to revoke or modify such detention order at any earlier time.
     

    11. Revocation of detention orders –

    (1) Without prejudice to provisions of section 21 of the General Clauses Act, 1897 (10 of 1897), a detention order may, at any time, be revoked or modified –

    (a) notwithstanding that the order has been made by an officer of a State Government, by that State Government or by the Central Government ;

    (b) notwithstanding that the order has been made by an officer of the Central Government or by a State Government, by the Central Government.

    (2) The revocation of a detention order shall not bar the making of another detention order under section 3 against the same person.

    COMMENTS

    Representation – Disposal of

    There is no prescribed period either under the provisions of the Constitution or under the concerned detention law within which the representation should be dealt with. The use of the words “as soon as may be” occurring in article 22 (5) of the constitution reflects that the representation should be expeditiously considered and disposed of with due promptitude and diligence and with a sense of urgency and without avoidable delay. [Rama Dhondu Borado Vs. V.K. Sarf, Commissioner of Police & Ors., JT 1989 (2) 579 ]. What is reasonable despatch depends on the facts and circumstances of each case and no hard and fast rule can be laid down in that regard. In case the gap between the receipt of the representation and its consideration by the authority is so unreasonable and the explanation offered by the authority is so unsatisfactory, such order could vitiate the order of detention.[ibid].

    In a detention matter the Government is required to deal with the representation of a detenu expeditiously without avoidable delay. Undue and unexplained delay in disposing of the representation vitiates the detention order.[Hussain Erumban vs. Union of India, (1993) 3 crimes 627 (Delhi)]. It is settled law that the representation made by the detenu for seeking revocation of te detention order must be dealt with promptly and in right earnest by the authorities concerned and they are not supposed to deal with the representation in a casual manner and allow the same to remain unattended for any period of time. If there occurs any undue delay in dealing with the representation it is incumbent upon the authorities to explain such delay. [ibid].

    Detaining Authority – Duty of

    In smt. Gracy vs. State of Kerala, (1991 ) 41 DLT1, the Supreme Court observed that the detaining authority is obliged to consider the representation even if the same was simply addressed to the Advisory Board and not to him. “It being settled that the aforesaid deal obligation of consideration of the detenu’s representation by the Advisory Board and independently by the detaining authority flows from article 22 (5) when only one representation is made and addressed to the detaining authority there is no reason to hold that the detaining authority is relieved of this obligation merely because the representation is addressed to the Advisory Board instead of the detaining authority and submitted to the Advisory Board during pendency of the reference before it. It is difficult to spell out such an inference from the contents of article 22 (5) in support of the contention of the learned Solicitor General. The contents of article 22(5) as well as the nature of duty imposed thereby on the detaining authority support the view that so long as there is a representation made by the detenu against the order of detention, the aforesaid dual obligation under article 22 (5) arises irrespective of the fact whether the representation is addressed to the detaining authority or to the Advisory Board or to both. The mode of address is only a matter of form which cannot whittle down the requirement of the constitutional mandate in article 22 (5) enacted as one of the safeguard provided to the detenu in case of preventive detention.”It is clear that once the detenu makes a representation, it has to be considered by the detaining authority independent of its consideration by the Advisory Board.[ Yashvir Singh vs. Administrator, Delhi & Ors., (1993) 3 Crimes 441 (Delhi)].
     

    12. Temporary release of persons detained –

    [(Note:- Subs. for sub-section (1) by Act No.20 of 1976, s.4 (w.e.f. 12-12-1975) (1) The Central Government may, at any time, direct that any person detained in pursuance of detention order made by that Government or an officer subordinate to that Government or by a State Government or by an officer subordinate to a State Government , 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.

    (1A) A State Government may, at any time, direct that any person detained in pursuance of a detention order made by the Government or by an officer subordinate to that Government 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.]

    (2) In directing the release of any person [(Note:- Subs. by Act No.20 of 1976, s.4 (w.e.f. 12.12.1975) under sub-section (1) or sub – section (1A) , the Government directing the release] may require him to enter into a bond with sureties for the due observance of the conditions specified in the direction.

    (3) Any person released under [(Note:- Subs. for “under sub-section (1), the appropriate Government” by Act No.20 of 1976, s.4(b) (w.e.f. 12-12-1975) sub- section (1) or sub – section (1A)] shall surrender him self at the time and place, and to the authority, specified in the order directing his release or can canceling his release, as the case may be.

    (4) If any person fails without sufficient cause to surrender himself in the manner specified in sub-section (3) , he shall be punishable with imprisonment for a term which may extend to two years, or with fine, or with both.

    (5) If any person released under [(Note:- Subs. for “sub-section (1)” by Act No.20 of 1976, s.4(c) (w.e.f. 12-12-1975) sub-section (1) or sub section (1A)] fails to fulfill any of the conditions imposed upon him under the said sub- section or in the bond entered into by him, the bond shall be declared to be forfeited and any person bound thereby shall be liable to pay the penalty thereof.

    (6) [(Note:- Ins. by Act No.35 of 1975, s.3 (w.e.f. 1-7-1975) Notwithstanding anything contained in any other law and save as 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.]
     

    12A. Special Provisions for dealing with emergency—

    (1) notwithstanding anything contained in this Act or any rules of natural justice, the provisions of this section shall have effect during the period of operation of the Proclamation of Emergency issued under clause (1) of article 352 of the constitution on the 3rd day of December, 1971, or the Proclamation of Emergency issued under that clause on the 25th day of June, 1975, or a period of [(Note:- Subs. for “twelve months” by Act No.90 of 1976, s.2 (w.e.f. 16-6-1976) twenty four months] from the 25th day of June , 1975, whichever period is the shortest.

    (2) When making an order of detention under this Act, against any person after the commencement of the Conservation of Foreign Exchange and Prevention of Smuggling Activities (Amendment) Act, 1975, the Central Government or the State Government or, as the case may be, the officer making the order of detention shall consider whether the detention of such person under this Act is necessary for dealing effectively with the emergency in respect of which the Proclamations referred to in sub- section (1) have been issued (hereafter in this section referred to as the emergency) and if, on such consideration, the Central Government or that State Government 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 government or officer may make 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 Government within fifteen days from the date of making of the declaration and such declaration shall cease to have effect unless it is confirmed by that Government, after such review, within the said period of fifteen days.

    (3) The question whether the detention of any person in respect of whom a declaration has been made under sub- section (2) continues to be necessary for effectively dealing with the emergency shall be reconsidered by the appropriate Government 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 government that the detention of the person is no longer necessary for effectively dealing with the emergency, the Government may revoke the declaration.

    (4) In making any consideration, review or reconsideration under sub-section (2) or (3), the appropriate Government or officer may, if such Government 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 making a representation to the person concerned.

    (5) It shall not be necessary to disclose to any person detained under a detention order to which the provisions of sub – section (2) apply, the grounds on which the order has been made during the period the declaration made in respect of such person under that sub section is in force, and, accordingly, such period shall not be taken into account for the purposes of sub- section (3) of section 3.

    (6) In the case of every person detained under a detention order to which the provisions of sub- section (2) 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 taken into account for the purpose of computing. –

    (i) The periods specified in clause (b) and (c) of section 8;

    (ii) The periods of ‘one year’ and ‘ five weeks ‘ specified in sub section (1) , the period of one year’ specified in sub section (2) (i0 and the period of “six months” specified in sub section (3) , of section 9.]
     

    13. Protection of action taken in good faith –

    No suit or other legal proceeding shall lie against the Central government or a State Government, 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. Repeal –

    The maintenance of Internal Security (Amendment) Ordinance, 1974 (11 of 1974), shall, on the commencement of this Act, stand repealed and accordingly the amendments made in the Maintenance of Internal Security Act, 1971 (26 of 1971), by the said Ordinance shall, on such commencement, cease to have effect.

     

    These guides are not legal advice, nor a substitute for a lawyer

    These articles are provided freely as general guides. While we do our best to make sure these guides are helpful, we do not give any guarantee that they are accurate or appropriate to your situation, or take any responsibility for any loss their use might cause you. Do not rely on information provided here without seeking experienced legal advice first. If in doubt, please always consult a lawyer.

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