COFEPOSA - A Little Delay will not result in quashing Detention Order
CONSERVATION of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, a.k.a COFEPOSA was a dreaded legislation during the emergency and the heydays of smuggling. Once in a way this apparently draconian law raises its head.
A COFEPOSA case was decided by the Supreme Court yesterday.
A person was arrested by DRI on 17th of November 2012 on charges of trying to smuggle out red sanders and was promptly released on bail. The same day DRI proposed detention under COFEPOSA. The detaining authority passed order of detention on 6th of May, 2013. It was served on the detenu on 11th of June, 2013.
The detenu's wife challenged his detention by writ petition before the High Court which dismissed the petition. She is in appeal before the Supreme Court against the High Court order. Her main grounds of appeal were that the order of detention as well as execution of the order was badly delayed and delay itself is a good ground for quashing the order of detention.
The Supreme Court was not impressed. Though there was a delay, it was not an undue delay to invite quashing of the detention order.
The Supreme Court observed, "COFEPOSA intends to deal with persons engaged in smuggling activities who pose a serious threat to the economy and thereby security of the nation. Such persons by virtue of their large resources and influence cause delay in making of an order of detention. While dealing with the question of delay in making an order of detention, the court is required to be circumspect and has to take a pragmatic view. No hard and fast formula is possible to be laid or has been laid in this regard. However, one thing is clear that in case of delay, that has to be satisfactorily explained. After all, the purpose of preventive detention is to take immediate steps for preventing the detenu from indulging in prejudicial activity. If there is undue and long delay between the prejudicial activity and making of the order of detention and the delay has not been explained, the order of detention becomes vulnerable."
We bring you this order today.