Back
2012 (4) Supreme 440
SUPREME COURT OF INDIA
R. M.Lodha and H. L. Gokhale,JJ.
Dropti Devi & Anr. — Petitioners
versus
Union of India & Ors. —Respondents
Writ Petition (Crl. ) No. 65 of 2010
Decided on : 2-7-2012
Preventive Detention-Personal liberty of individual vis a vis larger interest of State security-The Constitution recognizes preventive detention though it takes away the liberty of a person without any enquiry or trial- Preventive detention results in negation of personal liberty of an individual- It deprives an individual freedom and is not seen as compatible with rule of law, yet the framers of the Constitution placed the same in Part III of the Constitution- While giving to an individual the most valuable right , personal liberty and also providing for its safeguard, the Constitution perceived preventive detention as a potential solution to prevent the danger to the state security- The security of the State being the legitimate goal, Apex Court upheld power of the Parliament and State Legislatures to enact laws of preventive detention- The Court has time and again given the expression ‘personal liberty’ its full significance and asserted how valuable, cherished, sacrosanct and important right of liberty given to an individual in the Constitution was and yet legislative power to enact preventive detention laws has been upheld in the larger interest of state security (Para 47)
Facts of the Case :
The central issue in this petition under Article 32 of the Constitution concerns constitutional validity of Section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 to the extent it empowers the competent authority to make an order of detention against any person ‘with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange’. Plea of petitioners that with the change of legal regime by repeal of FERA and enactment of FEMA the intent and object behind the enactment of preventive detention in COFEPOSA had ceased to exist and continuation of impugned provision in COFEPOSA was violative of Article 21 read with Articles 14 and 19 of the Constitution.
Findings of the Court :
The Court held that smugglers and foreign exchange manipulators by flouting the regulations and restrictions imposed by FEMA , by their misdeeds and misdemeanours , directly affect the national economy and thereby endanger the security of the country. In this situation, distinction between acts where punishments are provided and the acts where arrest and prosecution are not contemplated pales into insignificance. The person who violates foreign exchange regulations or indulges in smuggling activities succeeds in frustrating the development and growth of the country. His acts and omissions seriously affect national economy. Hence, held that relevance of provision for preventative detention of anti-social elements indulging in smuggling and violation and manipulation of foreign exchange in COFEPOSA continues even after repeal of FERA. There was no merit in challenge to constitutional validity of impugned part of Section 3(1) of COFEPOSA. Petition was dismissed
JUDGMENT
R.M. Lodha, J.
The central issue in this petition under Article 32 of the Constitution concerns constitutional validity of Section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, ‘COFEPOSA’) to the extent it empowers the competent authority to make an order of detention against any person ‘with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange’.
2. It is necessary to state few material facts which have given rise to this petition. The first petitioner – Dropti Devi – is the mother of second petitioner – Raj Kumar Aggarwal. In respect of second petitioner an order of detention has been passed on September 23, 2009 by Smt. Rasheda Hussain, Joint Secretary to the Government of India, specially empowered under Section 3(1) of the COFEPOSA (as amended). The said order reads as follows :
“No. 673/02/2009-Cus. VIII
Government of India
Ministry of Finance
Department of Revenue
Central Economic Intelligence Bureau
COFEPOSA Unit
6th Floor, ‘B’ Wing, Janpath Bhawan,
Janpath, New Delhi – 110001
Dated 23rd September, 2009
ORDER
Whereas, I Smt. Rasheda Hussain, Joint Secretary to the Government of India, specially empowered under Section 3(1) of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (as amended), am satisfied with respect to the person known as Shri Raj Kumar Aggarwal @ Munna, R/o SU-184, G.F. Near Park Citi Hostel Pitampura, New Delhi that with a view to preventing him from acting in any manner prejudicial to the conservation and augmentation of foreign exchange in future, it is necessary to make the following order:-
Now, therefore, in exercise of the powers conferred by Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended), I direct that the said Shri Raj Kumar Aggarwal @ Munna , be detained and kept in custody in the Central Jail, Tihar, New Delhi.
Sd/-
(Rasheda Hussain)
Joint Secretary to the Government of India”
3. The above detention order came to be passed in the backdrop of the following events. On February 17, 2009 the premises of Ambika Electronics situate at 136, MCD Market, Karol Bagh, New Delhi was raided by the Office of the Directorate of Enforcement, New Delhi. In the course of search, Indian currency amounting to Rs. 8.9 lacs (approximately) was recovered along with some documents. The enforcement authorities took into custody the passport of second petitioner (hereinafter referred to as ‘detenue’) as well. On that day itself, i.e. February 17, 2009 Office of the Directorate of Enforcement also raided the residential premises of detenue’s brother Anil Kumar Aggarwal at Pitam Pura, New Delhi and another commercial premises of Ambika Electronics at Beadanpura, Karol Bagh, New Delhi and M/s. Bhagwati Electronics, 135 Municipal Market, Karol Bagh, New Delhi belonging to one Kapil Jindal were also raided. The detenue was also taken away by the officials of the Directorate of Enforcement to their office at Jamnagar House, Akbar Road, New Delhi in the intervening night of February 17, 2009 and February 18, 2009. The detenue was interrogated and his statement was recorded. On February 19, 2009 the detenue retracted from the statement recorded in the previous night. The detenue was summoned on various occasions but he did not appear before the authorities on the ground of his illness. On May 15, 2009 the detenue appeared before the authorities and his statement was recorded on that day and subsequently on May 18, 2009. May 20, 2009 and May 28, 2009. The evidence gathered in the course of searches and the follow up action revealed that the detenue was indulging in hawala activities, the last of such activity being on April 24, 2009. Hence, the detention order which has been quoted above.
4. Initially a writ petition was filed before this Court challenging the detention order but that was withdrawn. The first pet
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
