Why is COFEPOSA invoked selectively?

Abhijit Bhattacharyya
Commentator and Author

The Conservation Of Foreign Exchange And Prevention Of Smuggling Activities Act, 1974 (COFEPOSA), which came into force on December 19, 1974, came at a time when India appeared a heavenly abode for wrongdoers with names like Sukhar Narain Bakhia and Haji Mastan, all based in big cities of the western coast of India, and operating innumerable sorties across the Arabian Sea in their "fleet of Arab dhows", looting and ransacking the "golden egged Indian soil" through smuggling (endangering the security of the state) and defying and daring the state to take action. If it could. 

Hence, read the preamble of the COFEPOSA Act: "Having regard to the persons by whom….such activities or violations are organised and carried on,………it is necessary for the effective prevention of such activities and violations to provide for detention of persons concerned…"

Understandably, therefore, stipulated Section 1 (2): "This Act extends to the whole of India". It included "foreigners" vide Section 2 (c): "Foreigner has the same meaning as in the Foreigners Act 1946" (3 of 1946). 

Section 10 of the Act provided two years as the maximum period of detention and Section 13 giving "Protection of action taken in good faith." 

India, in the mid-1970s, was still a "closed" economy, with command and control at the hands of the federal state. Nevertheless, the lure for profit from the Indian market then too was irresistible for both locals and aliens. Hence, the salient features of the law made things clear and tough. If implemented well, and on targeted offenders, the prospect for lawbreakers was indeed grim. 

Thus, on June 13, 2018 when Afghan national Mohammed Seddiq Yousafi got caught at the Kochi airport, trying to smuggle a huge quantity of US dollars and Saudi riyals, equivalent to crores of rupees, the Government of India rightly put him behind bars under COFEPOSA on the ground of "smuggling" and "security of the state".

However, one is compelled to draw the attention of a very unpleasant unfolding scenario wherein India is not only failing to punish the foreign smugglers in a befitting manner, but also simply failing to implement the law of the land on them who seem to have no respect for the Indian law. In fact, such is the frequency and gravity of the offence committed by gangs of foreigners that one shudders to contemplate the future of both economics, commerce and the security of the Indian state.

A list of foreign smugglers caught by the Indian authorities reveals the reality that in none of these cases COFEPOSA appears to have been invoked despite the offence, wherein the Indian law has been violated with impunity and an element of brazen defiance. The attitude is: "Just try do what you can; we care two hoots for your system. We are foreigners. And you Indians depend on our charity and spending power in your country. Our presence only can help uplift you from your economic and financial morass". 

On April 16, 2017 (pre-Doklam) was caught Hong Feng Wong with gold bars worth Rs 27.41 lakh. On November 21, 2017 Luen Fat Ng with gold bar worth Rs 32.21 lakh was nabbed. On January 21, 2018, Gong Changro Ng with gold bars worth approximately Rs 48.06 lakh was apprehended. On February 3, 2018 was the turn of Wen Chi Lai, caught with gold bars of Rs 1.12 crore. On February 10, 2018 was trapped a group of four (Mu Donh Vhrnh, Wang Syuan, Miss Fano Pei Chieh, Miss Huang Shan Yu) with gold bars valued around Rs 2.80 crore.

Within 11 days, on February 21, 2018 again were caught Chui Chun-Chiu and Shen Yen Lin with gold bars worth Rs 84.06 lakh. On June 11, 2018 were apprehended a group of four foreigners; Zhang Guigiong, Zhang Guanghua, Ye Xiuhi and Gu Meizin with gold articles of Indian Rs 1.69 crore. On June 20, 2018 was the turn of Zhou Yin to be caught by the Indians with medicines of Rs 1.19 crore. On July 30, 2018 Yu Sheng Huang, with gold bars valued at Rs 84 lakh was netted by Indian officials. 

On January 27, 2019, Xia Qianbin was apprehended while smuggling memory cards worth Rs 1.07 crore. On April 2, 2019 got caught Yu Shi with Rs 33.29 lakh worth of memory cards. April 13, 2019 was the day of big haul of gold from another foreigner from the same country, which was worth more than Rs 50 lakh. 

From the above, things are clear. There is law. Applicable to all: both Indians and foreigners. Indians do face it and spend days behind bars for smuggling and endangering the security. An Afghan too is jailed. 

But how come COFEPOSA is not being applied on any of the above persons who all hail from the same country and resorted to smuggling goods worth crores of rupees? All of whom were caught at regular intervals while entering India? Is it because they hail from a militarily powerful and economically strong nation which can damage India?

My question here is simple and pointed. How, and in what manner, will Indian citizens be treated in case so many of them get caught in countries like the USA or China, the UK or Japan, France or Germany? Will the Government of India come to rescue its citizens smuggling contraband worth crores of rupees in Boston or Beijing; Heathrow or Hiroshima; Brest or Berlin? Will not they face trial in those foreign lands for violating the law of the land?

The most interesting point here is that when a foreigner deliberately brings goods worth crores of rupees, he/she/they certainly has/have a deliberate plan of action. To make money. By selling. Developing contacts. For business. Espionage. Sabotage. Terrorism. Destruction of the system. Bribing and conning. To penetrate the secret defence, security system. Spread religious hatred and create a civil-war like situation in vulnerable areas like north-east and eastern states of Sikkim and West Bengal. Else, one simply doesn't find any logic to so many violators of Indian law with such impunity by the same country. 

The worst part is that they are gaining confidence that despite such brazen acts, the Indian system will not act owing to its weakness and corruption. Else why doesn't the Government of India impose COFEPOSA on these foreign nationals for such flagrant violations of law by resorting to smuggling, thereby endangering the security of the state? Will India wake up? India is not a banana republic.