(Act No. 52 of 1974) [13th December 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 violations of foreign exchange regulations and smuggling activities are having an increasingly deleterious affect 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 organized 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

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S.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 ¹[date] as the Central Government may, by notification in the official Gazette, appoint.

S.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, and all its grammatical variations and cognate expressions shall be construed accordingly;

(f) "State Government", in relation to a Union territory, means the administrator thereon<

S.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) Harboring persons engaged in smuggling goods or in abetting the smugg

S.4 Execution of detention orders

A detention order may be executed at any place in India in the manner provided for the execution on warrants of arrest under the Code of Criminal Procedure, 1973 (2 of 1974).

S.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 under such conditions including conditions as to maintenance, interviews or communication with others, discipline and punishment for breaches of discipline, as 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 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.

S.5A Grounds of detention sever able

Where a person has been detained in pursuance of an order of detention under sub-section (1) of Section 3, which had been made on two or more grounds, such order of detention shall be 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 should 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 officer 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

S.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 officer making the order of detention, or

(b) That the place of detention of such person is outside the said limits.

S.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 or a Magistrate of the first class having jurisdiction in the place where the said person ordinarily resides; and thereupon the provisions of Sections 92, 83, 84 and 95 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 be proves that it was not possible for him to comply therewith and that he had

S.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 qualification 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 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 pe

S.9 1[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 ²[31st day of July, 1993] 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 that Government, is satisfied that such person,-

(a) Smuggles or is likely to smuggle goods into, out o

S.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.

S.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 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.

S.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 officer 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.

(1-A) 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 direction 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 (I-A), t Government directing the release may require him to enter into a bond with sureties f

S.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 of 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 the 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 officer making the order of detention shall consider whether the detention of such person under that Act is necessary for dealing effectively with the emergency in respect of which the Proclamations referred to in sub-section (1) have

S.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.

S.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.