IBRAHIM NAZEERversusSTATE OF TAMIL NADU AND ANR.

                              IBRAHIM NAZEER                                         A
                                        V.

                   STATE OF TAMIL NADU AND ANR.

                                JULY I0, 2006

              [ARIJIT PASA YAT AND C.K. THAKKER, JJ.]                                B

      Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974; Section 3(/)(i):

       S111uggling of goods by accused-Detention-Filing of habeas corpus             C
petition by wife of the deten11-Dis111issed by High Court obsen,ing that the
detaininft authority on the basis of the material available had shown compelling
necessity to continue detention of the accused so as to prevent him ji-0111
s11111ggling goods-On appeal, Held: Five bail applications filed earlier by the
accused had already been rejected-It was not a normal case-Subjective                D
satisfaction of the authority that the detem1 is likely to he released on bail was
based on material available before him-Under the circumstances, the High
Court was right in dismissing the appeal.

      The appellant-detenu was intercepted by the Customs Officer at the
airport. On examination of his baggage, he was found in possession of                E
smuggled goods. The goods so recovered were seized by the authorities
and the order of detention was passed against him under Section 3(1 )(i)
of the Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act to prevent him from indulging in smuggling of goods. 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
                                                                                     F
was that the Detaining Authority had merely, without application of mind
followed the allegations of the Customs 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 Petition
was dismissed by the High Court. Hence the present appeal.                           G
      Appcllant-detenu contended that since he did not file any bail
application after withdrawal of the first petition, the detaining authority
could not hal'e inferred that there was possibility of his being released on

                                       357                                           H
    358                       SUPREME COURT REPORTS [2006] SUPP. 3 S.C.R.

A   bail.

            Dismissing the appeal, the Court

          HELD: I.I. Whether prayer for bail would be accepted depends on
    circumstances of each case and no hard and fast rule can be applied. The
B   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. [361-C)

            1.2. On the basis of materials before the detaining authority, it came
C 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 indi<:ated as to why he was of the opinion that there
    is likelihood of detenu being released on bail. In fact, five bail applications
D   filed by the detenu had already been rejected. Thus, it was not "normal"
    case. Hence, the High Court was justified in rejecting the stand of the
    appellant. (361-D-EI

          Rajesh Gulati v. Govt. of NCT of Delhi and Anr, (2002[ 7 SCC 129,
    distinguished.
E
         CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 732
    of 2006.

         From the Judgment and Order dated 15.2.2006 of the Madras High
    Court in H.C.P. No. 1126/2005.
F
            K.K. Mani for the Appellant.

         Mohan Parsaran, AGG, V. Krishnamurthy, Manish Sharma and B.
    Krishna Prasad for the Respondent.

G           The Judgment of the Court was delivered by

            ARIJIT PASA YAT, 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
H   petition filed by one Rizwana Ziyath seeking release of her husband, the
              IBRAHIMNAZEER v.STATEOFTAMlLNADU[PASAYAT,J.]                    359

      present appellant Ibrahim Nazeer (hereinafter referred to as the 'detenu')     A
      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   B
      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-lbrahim Nazeer, arrived Chennai from C
      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 D
      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. E
      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 F
      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 G

...   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 H
    360                     SUPREME COURT REPORTS (2006] SUPP. 3 S.C.R.

A 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
B   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.                                        .,,
                                                                                       '

c
         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
D 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
E 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
F 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 ef the materials collected that the detenu was likely to indulge
G 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.                                                                          .,.
         Jn 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
H that the Detaining Authority's view about imminent possibility of detenu
                                                                                      --
          IBRAHIMNAZEER v.STATE OF TAMIL NADU [PASAYAT, J.]                  361
coming out on bail was correct. It was also submitted that since the detenu A
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.
                                                                                     B
      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 C
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. D
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 E
placed by learned counsel for the appellant on Rajesh Gulati v. Govt. of NCT
of Delhi and Anr., [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.
                                                                                     F
      The inevitable result is that the appeal is without merit and is accordingly
dismissed.

 S.K.S.                                                       Appeal dismissed.