What is COFEPOSA Act
On December 13, 1974, the Parliament passed the Conservation of Foreign Exchange and Prevention of Smuggling Activities or COFEPOSA Act, which gave the broad executive authority to detain anyone if there is suspicion that they are involved in smuggling activities. It became effective on December 19th, 1974. In contrast, smuggling and breaking foreign exchange laws seriously harm the country’s economy and security.
Smuggling activities of a significant scale are secretively organized and carried out in certain areas that are highly vulnerable to smuggling; it is necessary to provide for the detention of those involved in any way to prevent such activities and violations effectively.
What is smuggling?
The definition of “smuggling” in clause (39) of section 2 of the Customs Act of 1962 applies, and any grammatical variations and cognate formulations should get interpreted as such. It makes it clear that the definition of smuggling activities under both of these Acts is the same insofar as interpretation.
Any act or omission that makes goods subject to confiscation under Sections 111 or 113 is referred to as “smuggling” of those items. Section 111 explains “confiscation of improperly imported goods, etc.” under the Customs Act,1962.
Salient features of the COFEPOSA Act
The Act, as established, allows for detention in a few circumstances. The prevention of smuggling activities and related issues.
Important provisions of COFEPOSA Act
The Act’s key provisions are as follows: –
(i) Section 3: authority to issue detention orders
(ii) Section 3(1): orders to detain (including foreigners) by the central government, state government, joint secretary of the central government, and secretary of the state government, if-
- Smuggling goods
- Encouraging goods smuggling
- Transporting, hiding, or maintaining smuggled items
- Dealing in illegal goods in a manner other than by transporting, hiding, or maintaining smuggled items
- Harbouring anybody who is involved in or aids in the smuggling of goods
(iii) Section 3(2):-Any order by a state government must be reported to the central government within ten days.
(iv) Section 3(3): Under Article 22(5) of the constitution, detainees must get informed of the reasons for their imprisonment within five days. If the explanation is in writing, a delay of up to 15 days is permitted.
(v) Section 8: Advisory Board (under Article 22(4)’s constitutional protections)
- 8b- The government must refer a matter to the advisory board within five weeks of the date of detention.
- 8c – Within 11 weeks of the detention order. Detention time may be increased to one year if conditions are met.
- 8f- If the advisory board determines inadequate justification for detention, the order gets cancelled, and the person is released.
Functions of Advisory Board
The adoption of Section 8 of the Act satisfies the criteria of Article 22 (4) of the COFEPOSA Act. According to the Act Section 8(b), the Appropriate Government must refer any detention to the Advisory Board within 5 weeks of the date of the detention.
The Advisory Board must report whether the detainees have good reason to remain in custody. Only the detaining authority has the authority to keep a detainee in custody after the initial three months if the Advisory Board finds that there is good cause for detention.
The person must be released if the Advisory Board finds insufficient justification for the detention.
Penalty under COFEPOSA Act
However, a person may only be held in preventative detention under the Act for up to 1 year in connection with smuggling activities; generally, this time limit may be increased to 2 years in case of particular types of smuggling into, out of, or via “any area vulnerable for smuggling.”
The COFEPOSA Act allows the government to take similar action to preserve and increase the nation’s foreign exchange. And the government has the right to ensure that the Act is implemented through its agencies. A person is placed in preventative detention by government entities to stop them from engaging in smuggling operations under the Act.
The Advisory Board’s function is to assess whether there was enough justification for the detention of the person on the date the order of detention was issued and if there is still enough justification for the subject’s arrest on the date the report is due.