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TMI Blog2002 (4) TMI 789X X X X Extracts X X X X X X X X Extracts X X X X ..... nance, Department of Revenue, Government of India made a detention order under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ( COFEPOSA Act ) directing that one B. Sankar be detained and kept in custody with a view to prevent him from acting in any manner prejudicial to the augmentation of foreign exchange. The said order was served upon detenu on 15-2-2000 along with grounds of detention and copies of the documents relied upon by the detaining authority. That order was challenged by filing Writ Petition (HC) No. 41 of 2000 before the High Court of Karnataka at Bangalore. By the impugned judgment and order dated 2-11-2000, the High Court quashed and set aside the detention order on the ground that what was considered to be criminal violation of the Foreign Exchange Regulation Act, 1973 ( FERA ) has ceased to be so on the repeal of the FERA, which is replaced by the Foreign Exchange Management Act, 1999 ( FEMA ). That order is challenged by filing this appeal. 3. In the detention order, it has been stated that upon receipt of information that B. Sankar was indulging in receiving and making payments in India on behalf of a r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order, detaining authority should be satisfied that there is a possibility of the person who has committed an act which is prohibited under FERA or FEMA indulging in similar activity. He submitted that the question whether the act is punishable with fine or penalty of imprisonment is immaterial. For this purpose, he relied upon the decisions in Khudiram Das v. State of West Bengal [1975] 2 SCC 81 and Haradhan Saha v. State of West Bengal [1975] 3 SCC 198. 5. The learned counsel for the respondent, on the other hand, submitted that in view of the fact that FERA has been repealed and in its place FEMA has been enacted by virtue of which violations of the provisions of the FEMA are now only civil wrongs, a person cannot be continued to be preventively detained under COFEPOSA Act for violations of FERA after its repeal. According to him, contravention of FEMA is not an offence and a person cannot be prosecuted or punished for violations of any of its provisions. He referred to the preamble of FEMA which provides that it is an act to consolidate and amend the law relating to Foreign Exchange with the objective of facilitating external trade and payments and for promoting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xchange or foreign security to any person not being an authorised person; ( b )make any payment to or for the credit of any person resident outside India in any manner; ( c )receive otherwise through an authorised person, any payment by order or on behalf of any person resident outside India in any manner; Explanation. For the purpose of this clause, where any person in, or resident in, India receives any payment by order or on behalf of any person resident outside India through any other person (including an authorised person) without a corresponding inward remittance from any place outside India, then such person shall be deemed to have received such payment otherwise than through an authorised person; ( d )enter into any financial transaction in India as consideration for or in association with acquisition or creation or transfer of a right to acquire, any asset outside India by any person. Explanation. For the purpose of this clause, financial transaction means making any payment to, or for the credit of any person, or receiving any payment for, by order or on behalf of any person, or drawing, issuing or negotiating any bill of exchange or promissory note or tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tivities. Under section 2( e ) of the Act, smuggling is to be understood as defined under clause (39) of section 2 of the Customs Act, 1962 which provides that smuggling in relation to any act or omission will render such goods liable to confiscation under section 111 or section 113. Section 111 contemplates confiscation of improper imported goods and section 113 contemplates confiscation of goods attempted to be improperly exported. This has nothing to do with the penal provisions, i.e., sections 135 and 135A of the Customs Act which provide for punishment of an offence relating to smuggling activities. Hence, to contend that for exercising power under the COFEPOSA Act for detaining a person, he must be involved in criminal offence is not born out by the said provisions. 11. Other important aspect is that the COFEPOSA Act and the FEMA occupy different fields. The COFEPOSA Act deals with preventive detention for violation of foreign exchange regulations and the FEMA is for regulation and management of foreign exchange through authorised person and provides for penalty for contravention of the said provisions. The object as stated above is for promoting orderly development ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against implied repeal, unless the provisions are plainly repugnant to each other. There is also a presumption against repeal by implication; and the reason of this rule is based on the theory that the Legislature while enacting a law has complete knowledge of the existing laws on the same subject-matter and, therefore, when it does not provide a repealing provision, it gives out an intention not to repeal the existing legislation. In Municipal Council v. T.J. Joseph AIR 1963 SC 1561, the Court discussed the principles with regard to the implied repeal and held thus: "It must be remembered that at the basis of the doctrine of implied repeal is the presumption that the Legislature which must be deemed to know the existing law did not intend to create any confusion in the law by retaining conflicting provisions on the statute book and, therefore, when the court applies this doctrine it does no more than give effect to the intention of the Legislature ascertained by it in the usual way, i.e., by examining the scope and the object of the two enactments, the earlier and the later." (p. 1564) 14. Similarly, in Municipal Corpn. of Delhi v. Shiv Shanker [1971] 1 SCC 442 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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