Cofeposa And Its Peculiarity

The Conservation Of Foreign Exchange And Prevention Of Smuggling Activities Act, 1974 (COFEPOSA), which came into force on December 19, 1974, came at a time when India appeared a heavenly abode for wrongdoers with names like Sukhar Narain Bakhia and Haji Mastan, all based in big cities of the western coast of India, and operating innumerable sorties across the Arabian Sea in their "fleet of Arab dhows", looting and ransacking the "golden egged Indian soil" through smuggling (endangering the security of the state) and defying and daring the state to take action.

Hence, read the preamble of the COFEPOSA Act: "Having regard to the persons by whom such activities or violations are organised and carried on, it is necessary for the effective prevention of such activities and violations to provide for detention of persons concerned."Understandably, therefore, stipulated Section 1 (2): "This Act extends to the whole of India". It included "foreigners" vide Section 2 (c): "Foreigner has the same meaning as in the Foreigners Act 1946" (3 of 1946). Section 10 of the Act provided two years as the maximum period of detention and Section 13 giving "Protection of action taken in good faith."

Customs law defined "smuggling" relating to goods as any act or omission that will render such goods liable to confiscation, making most disputes therein fall under this category. With the abolition of gold control Act and removing import/export restrictions, gold smuggling got re-invented with violations of free trade agreements, exemption schemes and policy frauds, concealment of gold took a backseat. If the Detenue is found to have indulged in activities amounting to smuggling in terms of section 2 of the customs act 1962, then he will be detained in COFEPOSA. Indulged in activities amounting to sec 2(39) of customs act and sec (e) Cofeposa. The Conservation of Foreign Exchange and Prevention of Smuggling Act (COFEPOSA) introduced in 1974, which led to the repeal of Maintenance of Internal Security Act (Amendment) Ordinance, 1974, has survived to this date to form a part of former Prime Minister Indira Gandhi's political legacy. The Janata Party repealed MISA 1971 but its economic adjunct COFEPOSA continues to be in vogue and is back in the spotlight owing to the Supreme Court order in the Dimple Dhakkad case delivered on July 18. At a time when the courts, in the context of the COFEPOSA, discuss the touchstone of procedural rigour at the altar of substantive justice, it is time to review the necessity of this preventive detention law.

Under COFEPOSA, the Centre and state governments are empowered to detain a person (including a foreigner) to prevent such a person from smuggling of goods or acting in a manner prejudicial to conservation of foreign exchange. Riding on the wave of 'garibi hatao', a slew of legislations, including Monopolistic and Restrictive Trade Practices Act 1969, MISA 1971, Insurance and Coal Nationalisation laws, Foreign Exchange Regulation Act 1973 and Smugglers and Foreign Exchange Manipulators Act (SAFEMA) 1976 (to confiscate properties of smugglers) were introduced in the backdrop of 25 per cent inflation and $1.3 billion foreign exchange reserve in 1975.

But how is it COFEPOSA is not being applied on any of the persons who all hail from the same country and have resorted to smuggling goods worth Crores of rupees? All of whom were caught at regular intervals while entering India? Is it because they hail from a militarily powerful and economically strong nation which can damage India?

The worst part is that they are gaining confidence that despite such brazen acts, the Indian system will not act owing to its weakness and corruption. Better yet, why doesn't the Government of India impose COFEPOSA on the foreign nationals for such flagrant violations of law by resorting to smuggling, thereby endangering the security of the state?

Detention under Cofeposa is for the national interest especially if the detenue is potentially likely to continue doing this out of his habitual indulgence in the said acts of smuggling.

More often than not the proceeding under 135 of Customs Act is independent of the detention order and has no relevance to the prevention of the detenue as sometimes they do try making its relevance and also contend that section 135 of customs act deal with proceedings related to smuggling but fail to answer on detention. Cofeposa is used as a preventive step rather than retributive step.

Noteworthy sections of Cofeposa

Section 3. Power to make orders detaining certain persons. 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.

Section 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.

Section 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.

PERSONAL LIBERTY: PRECIOUS RIGHT- AND WHAT THE GOVERNMENT SHOULD PRACTICE.

In, State Of Maharashtra & Ors V. Bhaurao Punjabrao Gawande [2008] Insc 339 (3 March 2008)

The court observed -There can be no doubt that personal liberty is a precious right. So did the Founding Fathers believe because, while their first object was to give unto the people a Constitution whereby a Government was established, their second object, equally important, was to protect the people against the Government. That is why, while conferring extensive powers on the Government like the power to declare an emergency, the power to suspend the enforcement of Fundamental Rights or the power to issue Ordinances, they assured to the people a Bill of Rights by Part III of the Constitution, protecting against executive and legislative despotism those human rights which they regarded as 'fundamental'. The imperative necessity to protect those rights is a lesson taught by all history and all human experience. Our Constitution makers had lived through bitter years and seen an alien government trample upon human rights which the country had fought hard to preserve. They believed like Jefferson that "an elective despotism was not the government we fought for." And therefore, while arming the Government with large powers to prevent anarchy from within and conquest from without, they took care to ensure that those powers were not abused to mutilate the liberties of the people, vide A.K. Roy v. Union of India, (1982) 1 SCC 271; Attorney General for India v. Amritlal Pranjivandas, (1994) 5 SCC 54].

HABEAS CORPUS: FIRST SECURITY OF CIVIL LIBERTY.

The court also observed, that, the celebrated writ of habeas corpus has been described as "a great constitutional privilege" or "the first security of civil liberty". The writ provides a prompt and effective remedy against illegal detention. By this writ, the Court directs the person or authority who has detained another person to bring the body of the prisoner before the Court so as to enable the Court to decide the validity, jurisdiction or justification for such detention. The principal aim of the writ is to ensure swift judicial review of alleged unlawful detention on liberty or freedom of the prisoner or detenu.

PREVENTIVE DETENTION : MEANING AND CONCEPT.

The court extrapolated on the meaning of preventive detention, There is no authoritative definition of 'preventive detention' either in the Constitution or in any other statute. The expression, however, is used in contradistinction to the word 'punitive'. It is not a punitive or penal provision but is in the nature of preventive action or precautionary measure. The primary object of preventive detention is not to punish a person for having done something but to intercept him before he does it. To put it differently, it is not a penalty for past activities of an individual but is intended to pre-empt the person from indulging in future activities sought to be prohibited by a relevant law and with a view to preventing him from doing harm in future.

In Hardhan Saha v. State of W.B., (1975) 3 SCC 198, explaining the concept of preventive detention, the Constitution Bench of this Court, speaking through Ray, C.J. stated; "The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it. The basis of detention is the satisfaction of the executive of a reasonable probability of the likelihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. A criminal conviction on the other hand is for an act already done which can only be possible by a trial and legal evidence. There is no parallel between prosecution in a Court of law and a detention order under the Act. One is a punitive action and the other is a preventive act. In one case a person is punished to prove his guilt and the standard is proof beyond reasonable doubt whereas in preventive detention a man is prevented from doing something which it is necessary for reasons mentioned in Section 3 of the Act to prevent".

"The power of detention is clearly a preventive measure. It does not partake in any manner of the nature of punishment. It is taken by way of precaution to prevent mischief to the community. Since every preventive measure is based on the principle that a person should be prevented from doing something which, if left free and unfettered, it is reasonably probable he would do, it must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof. Hatanjali Sastri, C.J., pointed out in State of Madras v. V.G. Row A.I.R. 1952 SC 196 : 1952 SCR 597 that preventive detention is "largely precautionary and based on suspicion" and to these observations may be added the following words uttered by the learned Chief Justice in that case with reference to the observations of Lord Finlay in Rex v. Halliday, 1917 AC 260 namely, that "the court was the least appropriate tribunal to investigate into circumstances of suspicion on which such anticipatory action must be largely based". This being the nature of the proceeding, it is impossible to conceive how it can possibly be regarded as capable of objective assessment. The matters which have to be considered by the detaining authority are whether the person concerned, haying regard to his past conduct judged in the light of the surrounding circumstances and other relevant material, would be likely to act in a prejudicial manner as contemplated in any of sub-clauses.

ON PREVENTIVE DETENTION: NECESSARY EVIL.

The court held that the Liberty of an individual has to be subordinated, within reasonable bounds, to the good of the people. The framers of the Constitution were conscious of the practical need of preventive detention with a view to striking a just and delicate balance between need and necessity to preserve individual liberty and personal freedom on the one hand and security and safety of the country and interest of the society on the other hand. Security of State, maintenance of public order and services essential to the community, prevention of smuggling and black marketing activities, etc. demand effective safeguards in the larger interests of sustenance of a peaceful democratic way of life. In considering and interpreting preventive detention laws, courts ought to show greatest concern and solitude in upholding and safeguarding the Fundamental Right of liberty of the citizen, however, without forgetting the historical background in which the necessity an unhappy necessity was felt by the makers of the Constitution in incorporating provisions of preventive detention in the Constitution itself. While no doubt it is the duty of the court to safeguard against any encroachment on the life and liberty of individuals, at the same time the authorities who have the responsibility to discharge the functions vested in them under the law of the country should not be impeded or interfered with without justification A.K. Roy v. Union of India; Bhut Nath v. State of West Bengal, (1974) 3 SCR 315; State of W.B. v. Ashok Dey, (1972) 2 SCR 434; ADM Jabalpur v. Shirakant Shukla, 1976 Supp SCR 132.

The Court, after considering several cases, observed that with a view to prevent possible abuse of 'draconian measure' of preventive detention, the Legislature had taken care to provide various salutary safeguards such as (i) obligation to furnish to the detenu the grounds of detention; (ii) right to make representation against such action; (iii) constitution of Advisory Board consisting of persons who are or have been qualified to be appointed as Judges of the High Court; (iv) reference of the case of the detenu to the Advisory Board; (v) hearing of the detenu by the Advisory Board in person; (vi) obligation of the Government to revoke detention order if the Advisory Board so opines; (vii) maximum period for which a person can be detained;

However the latest judgement on Advisory Boards enforceability, sort of decided otherwise on how far and effective the Advisory Boards interjection is. In SLP(Criminal)No.7016 of 2019 Union of India vs. Nisar Pallathukadavil Aliyar . When the Advisory Board is of the opinion that there is no sufficient cause for the continued detention of the detenu under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 Section 8, if the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of a person, the appropriate Government is obliged to revoke the order of detention and cause the person to be released forthwith. It was submitted that the reasoning which weighed with the Advisory Board in its report would be non-justifiable and mere opinion cannot be subject matter in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention f any challenge in a court of law and that a petition under Article 136(1) would not be maintainable. 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.

There is no obligation imposed by the Act on the Board to communicate its decision to the detenu. The mere fact that under Section 11 the Board hears the person affected by the detention order in case he desires to be so heard, would not for that reason alone impose on the Board a legal obligation to communicate its decision to the detenu. Our attention has not been drawn to any provision of law or to any principle which would imply any such obligation. In any event omission on the part of the Advisory Board to do so cannot invalidate the petitioner's detention, the submission that the Advisory Board should communicate its opinion to the petitioner so as to enable him to question its legality is also misconceived. In the first instance the Advisory Board constituted under Section 9 of the Act, as its name connotes, is only required to function in an advisory capacity. Its opinion which is merely an advice is binding on the appropriate Government only if according to it there is no sufficient cause for the detention in question: in that eventuality the detenu cannot possibly have any grievance. When the Board reports that there is sufficient reason for the detention in question the appropriate Government is not bound under the law to confirm the order of detention. It may or may not do so. The advisory opinion of the Board is merely intended to assist the appropriate Government in determining the question of confirming the detention order and continuing the detention. It is binding on the appropriate Government only when it favours the detenu and not when it goes against him. Such advisory opinion can scarcely be an appropriate subject-matter of review or scrutiny by the judicial courts or tribunals. Secondly the proceedings of the Board and its report are expressly declared by Section 11 (4) of the Act to be confidential except that part of the report in which its opinion is specified. This provision clearly indicates that the advisory opinion is never intended to be open to challenge on the merits before any tribunal.

So far as the final opinion of the Board is concerned the communication of the confirmation of the detention order by the State Government clearly informed the petitioner that the opinion of the Board was against him. Hence an advisory boards opinions cannot be subject matter of judicial review.

SUBJECTIVE SATISFACTION: SCOPE OF JUDICIAL REVIEW

Subjective satisfaction being a condition precedent for the exercise of the power of preventive detention conferred on the executive, the Court can always examine whether the requisite satisfaction is arrived at by the authority; if it is not, the condition precedent to the exercise of the power would not be fulfilled and the exercise of the power would be bad.

A Court cannot go into correctness or otherwise of the facts stated or allegations levelled in the grounds in support of detention. A Court of Law is 'the last appropriate tribunal to investigate into circumstances of suspicion on which such anticipatory action must be largely based.'

That, however, does not mean that the subjective satisfaction of Detaining Authority is wholly immune from judicial reviewability. By judicial decisions, courts have carved out areas, though limited, within which the validity of subjective satisfaction can be tested judicially.

GROUNDS OF CHALLENGE

An order of detention can be challenged on certain grounds, such as, the order is not passed by the competent authority, condition precedent for the exercise of power does not exist; subjective satisfaction arrived at by the Detaining Authority is irrational, the order is mala fide; there is non- application of mind on the part of the Detaining Authority in passing the order; the grounds are, or one of the grounds is, vague, indefinite, irrelevant, extraneous, non- existent or stale; the order is belated; the person against whom an order is passed is already in jail; the order is punitive in nature; the order is not approved by State/Central Government as required by law; failure to refer the case of the detenu to the Board constituted under the statute; the order was quashed/revoked and again a fresh order of detention was made without new facts, etc.

CHALLENGE TO DETENTION-ORDER PRIOR TO EXECUTION

A writ of habeas corpus may be prayed in case of actual detention or imprisonment of a person if it is illegal or unconstitutional. But if a person is not actually detained, obviously a writ of habeas corpus would not lie. A question, however, may arise whether in such an eventuality, no remedy at all is available to an aggrieved person against whom an order of detention has been made and such order is still to be executed. In other words, whether actual detention of a person against whom an order of detention is made is sine qua non or condition precedent for approaching a Court of Law.

High Court of Gujarat in Ved Prakash v. State of Gujarat, AIR 1987 Guj 253, Court observed:

"When a right is so guaranteed, it has to be understood in relation to its orbit and its infringement. Conferring the right to life and liberty imposes a corresponding duty on the rest of the society, including the State, to observe that right, that is to say, not to act or do anything which would amount to infringement of that right, except in accordance with the procedure prescribed by law. In other words, conferring the right on a citizen involves the compulsion on the rest of the society, including the State, not to infringe that right. The question is at what stage the right can be enforced? Does a citizen have to wait till the right is infringed? Is there no way of enforcement of the right before it is actually infringed? Can the obligation or compulsion on the part of the State to observe the right be made effective only after the right is violated or in other words can there be enforcement of a right to life and personal liberty before it is actually infringed? What remedy will be left to a person when his right to life is violated? When a right is yet to be violated, but is threatened with violation can the citizen move the court for protection of the right? The protection of the right is to be distinguished from its restoration or remedy after violation. When right to personal liberty is guaranteed and the rest of the society, including the State, is compelled or obligated not to violate that right, and if someone has threatened to violate it or its violation is imminent, and the person whose right is so threatened or its violation so imminent resorts to Article 226 of the Constitution, could not the court protect observance of his right by restraining those who threatened to violate it until the court examines the legality of the action

JUDICIAL CUSTODY AND A POSSIBILITY OF BAIL.

W.P.(CRL)--1840/2019. ANKIT ASHOK JALAN Vs. UNION OF INDIA. Delhi High Court

The court observed, In our opinion, in the absence of cogent material, the statement in the grounds of detention regarding the alleged imminent possibility of the detenus' coming out on bail, is mere ipse dixit, untenable and without any cogent basis, and consequently has to be ignored. In our considered view, therefore, in the absence of reliable material to this effect, the detention order is vitiated and cannot be sustained. It is clear, categorical and unequivocal that the settled position of law is that when the detenus are in judicial custody and there is no imminent possibility of their release on bail and even no bail applications are pending, the power of preventive detention ought not to be exercised.

The decision of the Hon'ble Supreme Court in Dimple Happy Dhakad relied upon on behalf of the Detaining Authority, does not come to their aid, inasmuch as, it was clearly expressed by the Hon'ble Supreme Court in that case as well that the satisfaction of the Detaining Authority, that the detenu may be released on bail, cannot be the mere ipse dixit of the Detaining Authority, and that the Guideline No.24 of the 'Hand Book on Compilation of Instructions on COFEPOSA Matters' clearly stipulates that, when the detenu is in judicial custody, the Detaining Authority has to record in the grounds of detention its awareness thereof and then indicate the reasons for the satisfaction that there is imminent possibility of his release from the custody.

In Union of India vs Dimple Happy Dhakad, The court observed that the court must be conscious that the satisfaction of the detaining authority is "subjective" in nature and the court cannot substitute its opinion for the subjective satisfaction of the detaining authority and interfere with the order of detention. It does not mean that the subjective satisfaction of the detaining authority is immune from judicial reviewability. By various decisions, the Supreme Court has carved out areas within which the validity of subjective satisfaction can be tested. In the present case, huge volume of gold had been smuggled into the country unabatedly for the last three years and about 3396 kgs of the gold has been brought into India during the period from July 2018 to March, 2019 camouflaging it with brass metal scrap. The detaining authority recorded finding that this has serious impact on the economy of the nation. Detaining authority also satisfied that the detenues have propensity to indulge in the same act of smuggling and passed the order of preventive detention, which is a preventive measure.

India, in the mid-1970s, was still a "closed" economy, with command and control at the hands of the federal state. Nevertheless, the lure for profit from the Indian market then too was irresistible for both locals and aliens. Hence, the salient features of the law made things clear and tough. If implemented well, and on targeted offenders, the prospect for lawbreakers was indeed grim.

Thus, on June 13, 2018 when Afghan National Mohammed Seddiq Yousafi got caught at the Kochi airport, trying to smuggle a huge quantity of US dollars and Saudi riyals, equivalent to 10 Crores of rupees, the Government of India rightly put him behind bars under COFEPOSA on the ground of "smuggling" and "security of the state".

However, one is compelled to draw the attention of a very unpleasant unfolding scenario wherein India is not only failing to punish the foreign smugglers in a befitting manner, but also simply failing to implement the law of the land on them who seem to have no respect for the Indian law. In fact, such is the frequency and gravity of the offence committed by gangs of foreigners that one shudders to contemplate the future of economics, commerce and the security of the Indian state.

A list of foreign smugglers caught by the Indian authorities reveals the reality that in none of these cases COFEPOSA appears to have been invoked despite the offence, wherein the Indian law has been violated with impunity and an element of brazen defiance. The attitude is "Just try do what you can; we care two hoots for your system. We are foreigners. And you Indians depend on our charity and spending power in your country. Our presence only can help uplift you from your economic and financial morass".

On April 16, 2017 (pre-Doklam) Hong Feng Wong was with gold bars worth Rs 27.41 lakh. On November 21, 2017 Luen Fat Ng with gold bar worth Rs 32.21 lakh was nabbed. On January 21, 2018, Gong Changro Ng with gold bars worth approximately Rs 48.06 lakh was apprehended. On February 3, 2018 was the turn of Wen Chi Lai, caught with gold bars of Rs 1.12 Crore.

On February 10, 2018 was trapped a group of four (Mu Donh Vhrnh, Wang Syuan, Miss Fano Pei Chieh, Miss Huang Shan Yu) with gold bars valued around Rs 2.80 Crore.

Within 11 days, on February 21, 2018 again were caught Chui Chun-Chiu and Shen Yen Lin with gold bars worth Rs 84.06 lakh. On June 11, 2018 were apprehended a group of four foreigners; Zhang Guigiong, Zhang Guanghua, Ye Xiuhi and Gu Meizin with gold articles of Indian Rs 1.69 Crore. On June 20, 2018 was the turn of Zhou Yin to be caught by the Indians with medicines of Rs 1.19 Crore. On July 30, 2018 Yu Sheng Huang, with gold bars valued at Rs 84 lakh was netted by Indian officials.

On January 27, 2019, Xia Qianbin was apprehended while smuggling memory cards worth Rs 1.07 Crore. On April 2, 2019 got caught Yu Shi with Rs 33.29 lakh worth of memory cards. April 13, 2019 was the day of big haul of gold from another foreigner from the same country, which was worth more than Rs 50 lakh.

From the above, things are clear. There is law. Applicable to all: both Indians and foreigners. Indians do face it and spend days behind bars for smuggling and endangering the security.. Although these archaic legislations have been repealed, replaced or amended, COFEPOSA and its sister concern SAFEMA enacted during the Emergency and placed in the IX Schedule along with COFEPOSA, have survived undiluted. Though "socialism" was smuggled into the Preamble during the darkest hour of our democracy, the economy opened up in 1991 changing the very nature, scope and extent of our market fabric.

Views Are Personal Only.

(Author is Central Government Standing Counsel at Delhi HC)

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]