Subjective satisfaction for detention under COFEPOSA must be grounded in concrete evidence of foreign exchange violations, not mere allegations.

A.Muhamed Mustaque, J. This writ petition challenging a detention order under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) was filed by the wife of the detenu.

2. The petitioner-Shafina Siraj is the wife of Siraj V.E. A search was conducted on 19/6/2023 at M/s.Crescent Collection near Sridhar Cinema Broadway, Kochi. During the search, foreign currencies of 700 U.A.E. Dirham and Indian currency amounting to Rs.5 lakhs were found and seized. The detention order has been W.P.(Crl.).No.44/2024 passed under Section 3(1) of COFEPOSA with a view to prevent Siraj from acting in any manner prejudicial to the augmentation of foreign exchange in future. The grounds in the detention order passed were, relying on the statement of Abdul Hameed, an aid of Siraj, recorded on 19/6/2023, analysing the WhatsApp chat on the mobile phone of Abdul Hameed; relying on the statement of Shafina;

• and the statement of Siraj V.E. The detaining authority concluded that Siraj V.E. is indulged in illegal purchase and sale of foreign currencies in violation of the Foreign Exchange Management Act, 1999 (FEMA). The argument now raised before us is mainly on the ground that there were no materials on record to arrive at subjective satisfaction to pass the detention order. The learned counsel for the petitioner submitted that the detaining authority while relying on the report of the Sponsoring Authority overlooked the statements in the matter as there is no indication of any violation of FEMA. We are not looking into other grounds urged in the matter as we are satisfied that the petitioner has made out a W.P.(Crl.).No.44/2024 case as there were no materials on record to infer that Siraj had violated the provisions of FEMA.

3. We have perused the statement of Abdul Hameed. He is working as an aide to Siraj. He has been working for more than 20 years. Abdul Hameed admitted seizure of 730 UAE Dirhams. The possession of foreign currency within the limit prescribed by RBI is not a violation of FEMA (see Section 9(a) of FEMA) RBI issued a Notification prescribing permissible limit (No.FEMA 6 (R)/2015-RB permissible), no one has a case that Siraj has violated RBI prescribed limit in RBI notification. He stated that he was not dealing in foreign currencies. He also said he has no knowledge regarding dealing of foreign currencies by Siraj. But he said that Siraj deals with foreign currencies at the rate equivalent to Rs.1 crore per day. As we perused the statement as a whole, nothing is discernible regarding the dealing of foreign currencies. How foreign currencies are dealt with by Siraj, and in what manner, is not known to anyone. Abdul Hameed also said that Siraj used to get a commission of Rs.100 per one lakh rupees for transaction of W.P.(Crl.).No.44/2024 purchases of goods from Mumbai and Siraj used to send details through WhatsApp. This appears to be a Hawala money transaction. We note that this has nothing to do with the foreign exchange violation. We also perused the statement of Shafina Siraj. She spoke about the purchase of property and other transactions and did not speak of any violation of foreign exchange dealings. We also perused the statement of Siraj. He explained certain figures in the notepad depicting the value of the amount in US$.

4. The learned counsel for the petitioner argued that the detaining authority had not considered relevant materials to conclude any violation of FEMA. The learned counsel for the petitioner placed reliance on the judgment of the Apex Court in Nenavath Bujji v. State of Telangana and Others [2024 SCC Online SC 367], particularly, referring to the role of the Advisory Board to safeguard the constitutional right of the detenu. The learned counsel submits that the reference was to the Advisory Board consisting of Justice Alexander Thomas, Dr.Justice A.K.Jayasankaran Nambiar and Justice P.B.Suresh Kumar, and the W.P.(Crl.).No.44/2024 matter was heard by the reco