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CASE NO.: Appeal (crl.)  732 of 2006

PETITIONER: Ibrahim Nazeer                                                   

RESPONDENT: State of Tamil Nadu and Anr.                             

DATE OF JUDGMENT: 10/07/2006

BENCH: ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT: J U D G M E N T (Arising Out of S.L.P. (Crl.) No. 1194 of 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

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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

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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 [2002 (7) SCC 129]. 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.