2013 (8) TMI 1070 - HC - Indian Laws

Summary

Issues involved: Challenge to the constitutional vires of Section 12(6) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) u/s Article 226 of the Constitution of India.

Summary:

Challenge to Constitutional Vires of Section 12(6) of COFEPOSA:
The petitioner challenged the constitutional vires of Section 12(6) of COFEPOSA u/s Article 226 of the Constitution of India, contending that Article 226 is part of the basic structure of the Constitution and cannot be restricted by Section 12(6) of COFEPOSA. However, the High Court noted that the Supreme Court in Sunil Fulchand Shah v. Union of India, (2000) 3 SCC 409, had already examined a similar issue. The Supreme Court held that the bar of judicial intervention to direct temporary release of a detenu would not affect the jurisdiction of the High Courts under Article 226 of the Constitution to direct temporary release of a detenu under specific circumstances. Additionally, in Addl. Secretary Government of India v. Alka Subhash Gadia and Anr., 1992 Supp (1) SCC 496, the Supreme Court affirmed that High Courts under Article 226 have the power to grant bail to a detenu pending the final hearing of a petition. Consequently, the challenge to Section 12(6) of COFEPOSA was deemed not sustainable in light of the interpretation of the provision in conjunction with Article 226 of the Constitution.

Conclusion:
Given the above analysis, the High Court determined that the matter could proceed to be heard on its merits by the roster Bench, scheduling the next hearing for 30.08.2013.