SUPREME COURT OF INDIA
Ibrahim Nazeer
Vs
State of Tamil Nadu and Another
Appeal (Crl.) 732 of 2006(Arising Out of S.L.P. (Crl.) No. 1194 of 2006)
(Arijit Pasayat and C. K. Thakker, JJ)
10.07.2006
ARIJIT PASAYAT, J.
Leave granted.
Appellant calls in question legality of the judgment rendered by a Division
Bench of the Madras High Court dismissing the habeas corpus petition filed by
one Rizwana Ziyath seeking release of her husband, the present appellant
Ibrahim Nazeer (hereinafter referred to as the 'detenu') who was detained and
kept in custody in the Central Prison of Chennai under the Conservation
of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in
short the 'COFEPOSA Act'). The order of detention was passed under Section
3(1)(i) of COFEPOSA Act with a view to prevent the detenu from indulging in
smuggling goods in future. The order of detention is dated 20.9.2005.
The background facts which led to the detention of the detenu as set out in the
grounds of detention are as follows:
On 31.8.2005, the detenu-Ibrahim Nazeer, arrived Chennai from Singapore by
Indian Airlines Flight IC 558 with Ticket No. 51671263862. After immigration
clearance, he collected three bags from the conveyor belt and proceeded to
Customs Table No.8 where he declared that he was in possession of electronic
goods worth Rs.30, 000/-. At this point, he was intercepted by the Customs
Officer who questioned him about the contents of his baggage. He reiterated the
declaration given at the table that he was in possession of electronic goods of
the value of Rs.30, 000/-. Since his reply was not convincing, his three bags
were taken up for examination in the presence of two independent mahazar
witnesses. He produced two claim Tags bearing Nos. SQ 441432 and SQ 441433 and
further stated in the presence of independent witnesses that the cardboard
carton bearing Tag No. SQ 442077 tagged in the name of Smt. Selvi Narayanan
actually belonged to him and that as he was already having excess weight, he
made use of her baggage weight entitlement. Enquiries by the officer showed
that the said Selvi Narayanan had already left the arrival hall and that she
had not filed any claim for missing baggage. In the presence of witnesses, his
three bags were opened and examined one by one. Examination of navy blue colour
bag bearing baggage Tag No. SQ 441432 resulted in the recovery of 12 Nos.
Pioneer (model DEH-P 7750 MP) Car Stereos and 500 Nos. of Hynix 256 MB RAMs.
Examination of indigo colour bag bearing baggage Tag No. SQ 441433 resulted in
the recovery of 10 Nos. of Panasonic (model NV-GS 25 GC) digital video cameras,
5 Nos. of Sony (model DCR-TRV 285E) digital video cameras, 3 Nos. of Pioneer
Car Stereos and 10 Nos. of Motorola V3 mobile phones (without accessories).
Examination of Pioneer cardboard carton bearing baggage Tag No. SQ 442 077
resulted in the recovery of 4 Nos. of Panasonic (model No. NV-MD 9000 EN)
Digital Video Cameras. It is also stated in the grounds that after fulfilling
all the formalities, the value of the seized goods was ascertained. On the date
of seizure, the value of the seized goods was Rs.8, 22, 500/- (CIF) and Rs.11,
51, 500/- (Market Value) approximately. After finding that the adjudication and
prosecution proceedings are likely to be initiated under Customs
Act, 1962 (in short the 'Customs Act'), the State Government after
satisfying itself with the materials placed, arrived at a conclusion that it is
necessary to detain him under the provisions of the COFEPOSA Act, with a view
to prevent him from indulging in smuggling goods in future. The grounds further
show that while arriving at the subjective satisfaction to detain him under the
COFEPOSA Act, the State Government has taken into consideration facts and
materials referred to and relied upon in the grounds mentioned above and also
the statements, bail petition, representation and mahazars etc.
The detention was questioned by the wife of the appellant by filing a habeas
corpus petition. Stand of the appellant before the High Court essentially was
that the Detaining Authority has merely, without application of mind, followed
the allegations of the Custom authorities without any independent inquiry.
Further there was no basis for holding that there was imminent possibility of
the detenu coming out on bail. The High Court noted the factual position and
found that though one of the bags was in the name of Selvi Narayanan, it was in
the possession of the detenu who collected three bags from the belt and carried
them to the customs examination table. The customs declaration slip clearly
established this fact. Further the said Selvi Narayanan went out of the airport
without claiming any baggage and did not complain of any loss of baggage.
Therefore, the customs authorities were justified in holding that the baggage
belongs to the detenu. So far as the valuation is concerned, it was noted that
though the appellant claimed so, the Valuation Rules, 1988 are not applicable
to cases of baggage of passengers who are governed by the Baggage Rules, 1988.
So far as the plea relating to imminent possibility of the detenu coming out on
bail, the High Court noted that the Detaining Authority clearly indicated that
it was aware of the fact that the detenu had filed petition for bail on
8.9.2005 which was withdrawn on 17.9.2005. It was also noted that the Detaining
Authority was of the view on the basis of the materials collected that the
detenu was likely to indulge in activities again while on bail and there was
compelling necessity to prevent him from smuggling of goods. Accordingly the
habeas corpus petition was dismissed.
In support of the appeal learned counsel for the appellant submitted that the
only plea raised was that the High Court was not justified in holding that the
Detaining Authority's view about imminent possibility of detenu coming out on
bail was correct. It was also submitted that since the detenu had not filed any
bail application after withdrawal of the first petition, the detaining
authority could not have inferred that there was possibility of his being
released on bail. Reference has been made to several decisions of this Court to
contend that there must be material to show about such imminent possibility.
Per contra learned counsel for the respondent-State and the Union of India
supported the impugned judgment of the High Court.
It has to be noted that whether prayer for bail would be accepted depends on
circumstances of each case and no hard and fast rule can be applied. The only
requirement is that the detaining authority should be aware that the detenu is
already in custody and is likely to be released on bail. The conclusion that
the detenu may be released on bail cannot be ipsi-dixit of the detaining
authority. On the basis of materials before him, the detaining authority came
to the conclusion that there is likelihood of detenu being released on bail.
That is his subjective satisfaction based on materials. Normally, such
satisfaction is not to be interfered with. On the facts of the case, the
detaining authority has indicated as to why he was of the opinion that there is
likelihood of detenu being released on bail. It has been clearly stated that in
similar cases orders granting bail are passed by various courts. Appellant has
not disputed correctness of this statement. Strong reliance was placed by
learned counsel for the appellant on Rajesh Gulati v. Govt. of NCT of Delhi and
Another 3. The factual scenario in that case
was entirely different. In fact, five bail applications filed had been already
rejected. In that background this Court observed that it was not
"normal" case. The High Court was justified in rejecting the stand of
the appellant.
The inevitable result is that the appeal is without merit and is accordingly
dismissed.