COFEPOSA 1974 as a Detention Law

Section 3: the power

Who may detain. The Central Government, a State Government, any officer of the Central Government not below the rank of a Joint Secretary specially empowered for the purposes of the section, or any officer of a State Government not below the rank of a Secretary specially empowered.

That is wider than the National Security Act, where under section 3(3) only a District Magistrate or Commissioner of Police may be empowered, and then only by a written order for a limited period.

On what satisfaction. That with a view to preventing the person, including a foreigner, 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 them, or (v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods,

it is necessary so to do.

The proviso. No order of detention shall be made on any of the grounds specified in the sub-section on which an order may be made under section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act 1988. The two Acts are thus kept apart, in the same way that the National Security Act is kept apart from the blackmarketing Act.

Section 3(2). Where an order is made by a State Government or by an officer empowered by a State Government, the State Government must within ten days forward a report to the Central Government.

Section 3(3). For the purposes of article 22(5), the grounds must be communicated as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention.

The drafting of section 3(3) is worth noticing: it names the constitutional clause it is giving effect to.

Sections 4 to 7

Section 4: execution anywhere in India in the manner provided for warrants of arrest.

Section 5: place and conditions of detention.

Section 5A: grounds severable, in the same terms as section 5A of the National Security Act.

Section 6: no order invalid merely because the person or the place of detention is outside the territorial jurisdiction.

Section 7: absconding persons, with the same machinery of report to a Magistrate and gazetted direction.

Section 8: the Advisory Board

COFEPOSA gathers into one section what the National Security Act spreads over sections 9 to 12: the constitution of the Board, the reference, the Board's procedure and the action on its report. Its clause (f) is the confirmation provision to which sections 9(2) and 10 refer.

Section 9: detention beyond three months without a Board, and its sunset

This is the article 22(7)(a) provision, and it is spent. Section 9(1) applies only to a person in respect of whom an order is made at any time before the 31st day of July, 1999, and permits detention without the Board's opinion for longer than three months but not exceeding six months from the date of detention, where the order was made to prevent smuggling, abetting smuggling, or transporting, concealing or keeping smuggled goods, and the Central Government or an officer not below the rank of an Additional Secretary specially empowered is satisfied that the person smuggles or is likely to smuggle, abets or is likely to abet, or engages or is likely to engage in transporting, concealing or keeping smuggled goods into, out of or through an area highly vulnerable to smuggling, and makes a declaration to that effect within five weeks of the detention.

The definition of a highly vulnerable area, and the reason the section is now spent, are set out in [Article 22(7): What Parliament May Prescribe].

Section 10: the maximum period

For an order to which section 9 does not apply and which has been confirmed under section 8(f): one year from the date of detention, or the specified period, whichever expires later.

For an order to which section 9 does apply and which has been confirmed: two years from the date of detention, or the specified period, whichever expires later.

The Explanation defines specified period as the period during which the Proclamation of Emergency issued under article 352(1) on 3 December 1971 and the Proclamation issued under that clause on 25 June 1975 are both in operation. Both were revoked in March 1977, so the phrase is now historical, and the operative maximums are one year and two years.

Section 10A extended, during the Emergency, the detention of persons whose orders had been confirmed before the 1976 amendment.

Sections 11 to 15

Section 11: revocation of detention orders, in terms comparable to section 14 of the National Security Act.

Section 12: temporary release of persons detained.

Section 12A: special provisions for dealing with emergency. This is the section that connects COFEPOSA directly to Module II: it made special provision for detentions while the 1971 and 1975 proclamations were in force, and it is the reason the Act's own maximum period is keyed to those proclamations.

Section 13: protection of action taken in good faith, the standard provision barring a suit or prosecution against a person for anything done in good faith under the Act.

Section 14: the repeal of the Ordinance that preceded the Act, with the usual saving, and section 15 the transitional provision that goes with it.

Why the last three matter. Section 13 is the provision a detenu meets when he sues the detaining officer: it does not protect an act done outside the Act, and the question is always whether what was done was done under the Act at all, which is the same question the pleas in [What a Presidential Order Can Never Bar: Makhan Singh] turn on.

A worked example

An officer of the Directorate of Revenue Intelligence, not below the rank of Joint Secretary and specially empowered, makes an order on 1 March 2026 detaining Farid to prevent him from harbouring persons engaged in smuggling goods. The grounds are served on the seventh day, with reasons recorded in writing. The State in which he is held is not the State whose Government made the order.

Is the officer competent? Yes, if he is not below the rank of Joint Secretary to the Central Government and has been specially empowered for the purposes of section 3.

Is the ground within section 3(1)? Yes: harbouring persons engaged in smuggling goods or in abetting the smuggling of goods is the sixth limb.

Is the service of the grounds in time? The ordinary period under section 3(3) is five days; fifteen days are allowed in exceptional circumstances for reasons recorded in writing. The seventh day is therefore good only if such reasons exist and were recorded, and a court will look at the reasons and not merely at their existence.

Who must the order be reported to? If it was made by a State Government or its officer, section 3(2) requires a report to the Central Government within ten days; an order by a Central officer needs no such report.

By when must the Advisory Board be moved? Section 8 requires a reference within five weeks of the date of detention, so by 5 April 2026.

What is the maximum period? One year from 1 March 2026 under section 10, since section 9 cannot apply to an order made after 31 July 1999.

Can he be moved to another State? Section 5 allows removal from one place of detention to another, but a State Government may not remove him to another State without that State's consent.

COFEPOSA and the National Security Act compared

What it does NOT mean

COFEPOSA is not a criminal statute. It creates no offence and provides for no trial. Smuggling is punished under the customs law; this Act detains.

It is not confined to Indians. Section 3(1) says "any person (including a foreigner)".

Section 9 does not operate today. Its sunset is on the face of the section.

A detention under it is not a bar to prosecution. The two run in parallel, which is one of the standing criticisms of the scheme.

Quick revision

• COFEPOSA 1974, Act 52 of 1974. Preamble: smuggling harms the national economy and thereby the security of the State.
• s.3(1): conservation or augmentation of foreign exchange; smuggling; abetting; transporting, concealing or keeping; dealing; harbouring. Officers of the Centre not below Joint Secretary and of a State not below Secretary may be specially empowered.
• s.3(2): State report to the Centre within ten days. s.3(3): grounds within five days, fifteen on recorded reasons, expressly for article 22(5).
• s.5A severability; s.7 absconders; s.8 the Advisory Board; s.9 the article 22(7)(a) route, spent after 31 July 1999; s.10 maximums of one and two years plus the specified period; s.10A the Emergency extension; s.11 revocation; s.12 temporary release; s.12A special provisions for emergency.

Test yourself

1. What does COFEPOSA's preamble say connects smuggling to the security of the State? That violations of foreign exchange regulations and smuggling activities have an increasingly deleterious effect on the national economy and thereby a serious adverse effect on the security of the State.

2. Which officers may make a detention order under section 3? The Central Government, a State Government, an officer of the Central Government not below the rank of Joint Secretary specially empowered, and an officer of a State Government not below the rank of Secretary specially empowered.

3. What is the maximum period of detention under section 10? One year from the date of detention, or the specified period whichever expires later, for an ordinary order; two years, or the specified period whichever expires later, for an order to which section 9 applies.

4. What is the "specified period", and does it still run? The period during which the Proclamations of Emergency of 3 December 1971 and 25 June 1975 were both in operation. It does not still run; both were revoked in March 1977.

5. Why can a COFEPOSA order not be made on a ground available under the PIT NDPS Act 1988? Because the proviso to section 3(1) expressly forbids it, keeping the two detention statutes from overlapping.