LexDROPTI DEVI & ANR. versus UNION OF INDIA & ORS.
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[2012] 6 S.C.R. 307 DROPTI DEVI & ANR. .v. UNION OF INDIA & ORS. (Writ Petition (Crl.) No. 65 of 2010) JULY 2, 2012 [R.M. LODHA AND H.L. GOKHALE, JJ.] A B Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - s. 3(1) - Constitutional validity of, to the extent it empowers the competent Authority C to make an order of detention against any person with a view to prevent him from acting in any manner P.rejudicial to the conservation or augmentation of foreign exchange - Held: If the activity of any person is prejudicial to the conservation or augmentation of foreign exchange, the authority is o empowered to make a detention order against such person and the Act does not contemplate that such activity should be an offence - The whole intent and idea behind the Act is to prevent violation of foreign exchange regulations or smuggling activities having serious and deleterious effect on E the national economy - There is no constitutional mandate that preventive detention cannot exist for an act where such F act is not a criminal offence and does not provide for punishment - An act may not be declared as an offence under law but still for such an act, which is an illegal activity, the law can provide for preventive detention if such act is prejudicial to the State security - Essential concept of preventive detention is not to punish a person for what he has done but to prevent him from doing an illegal activity prejudicial to the security of the State - Thus, the constitutional validity of impugned part of s. 3(1) upheld. G Detention order was passed in respect of second petitioner by the Joint Secretary to the Government of India, specially empowered under Section 3(1) of the 307 H 308 SUPREME COURT REPORTS [2012] 6 S.C.R. A Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended), for indulging in hawala activities. The first petitioner (mother of detenue) filed a writ petition before the High Court challenging the detention order. The Division Bench of B the High Court by an interim order directed that the detenue would not be arrested till the next date of hearing and the said order was later made absolute. Thereafter, the Division Bench of the High Court dismissed the writ petition holding that if the activity of any person was c prejudicial to the conservation or augmentation of foreign exchange, the authorities were empowered to make a detention order against such person. Aggrieved, the petitioners filed Special Leave Petition. During the pendency, the petitioners filed the instant writ petition. 0 Thereafter, the writ petition was detagged from special leave peti"tion. Thus, the instant writ petition. The petitioners challenged the constitutional validity of COFEPOSA on the ground that on repeal of Foreign Exchange Regulation Act, 1973 and enactment of Foreign E Exchange Management Act, 1999 (did not regard its violation of criminal offence) an act where no punitive detention (arrest and prosecution) is even contemplated or provided under law, such an act cannot be made the basis for preventive detention and any law declaring it to F be prejudicial to the interest of the State so as to invoke the power of preventive detention is violative of Articles 14, 19 and 21 of the Constitution and must be struck down. G Dismissing the writ petition and the criminal miscellaneous application, the Court H HELD: 1.1. The importance of foreign exchange in the development of a country needs no emphasis. The Foreign Exchange Management Act, 1999 regulates the DROPTI DEVI & ANR. v. UNION OF INDIA & ORS. 309 foreign exchange. The conservation and augmentation of A foreign exchange continues to be its important theme. Although contraventioh of its provisions is not regarded B as a criminal offence, yet it is an illegal activity jeopardizing the very economic fabric of the country. For violation of foreign exchange regulations, penalty can be levied and its non-compliance results in civil imprisonment of the defaulter. The whole intent and idea behind Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 is to prevent violation of foreign exchange regulations or smuggling c activities which have serious and deleterious effect on the national economy. In today's world the physical and geographical invasion may be difficult but it is easy to imperil
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