THE CONSERVATION
OF FOREIGN EXCHANGE AND PREVENTION OF SMUGGLING ACTIVITIES ACT,
1974
(Act 52 of 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 violating 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 organised 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 Twenty-fifth Year of the Republic
of India as follows:-
1. Short title, extent and commencement.
(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 (being a date not later
than the twentieth day of December, 1974), 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 (52 of 1952), 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.
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 a 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.
(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.
4. Execution of detention orders.
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 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 severable.
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 office 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 provided in that sub-section with
reference to the remaining ground or grounds.
6. Detention orders 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 thereunder is outside the limits
of the territorial jurisdiction of the Government or the office
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, that Government may-
(a) make a report in writing of the fact to a Metropolitan Magistrate
of 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 and 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 cognisable.
8. Advisory boards.
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, whenever
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 or from the person
concerned, and if, in any particular case, it considers it essential
so to do or if the person concerned desired 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 periods 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 [31st day of July,
1999], 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 the 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 the States of Goa,
Gujarat, Karnataka, Kerala, Maharashtra and Tamil Nadu and the Union
territories of Daman, Diu and Pondicherry;
(ii) the inland area fifty kilometres in width from the coast of
India falling within the territories of the States of Goa, Gujarat,
territories of Daman, Diu and Pondicherry;
(iii) the inland area fifty kilometres in width from the
India-Pakistan border in the States of Gujarat, Jammu and Kashmir,
Punjab and Rajasthan;
(iv) the customs airport 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
(1) 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", as both the
places where they occur, the words "for the continued detention"
shall be substituted.
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 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 9 apply and which has been
confirmed under clause (f) of section 8 read with sub-section (2) of
section 9 shall be two years from the date of detention:
Provided that nothing contained in this section shall affect the
power of the appropriate Government in either case to revoke or
modify the detention order at any earlier time.
11. Revocation of detention orders.
(1) Without prejudice to the 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.
12. Temporary release of persons detained.
(1) The Central Government may, at any time, direct that any
person detained in pursuance of a detention order made by that
Government or an office 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 that 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 directions as that person accepts, and may, at any
time, cancel his release.
(2) In directing the release of any person 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 sub-section (1) or sub-section (1A)
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.
(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 sub-section (1) or sub-section (1A)
fails to fulfil 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) 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 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 office 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 the 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, that
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
in is force, and, accordingly, such period shall not be taken into
account for the purpose 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 clauses (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)(i), 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.