Ibrahim Nazeer Vs. State of Tamil Nadu and Anr  Insc 385 (10 July 2006)
Pasayat & C.K. Thakker
Out of S.L.P. (Crl.) No. 1194 of 2006) ARIJIT PASAYAT, J.
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.
background facts which led to the detention of the detenu as set out in the
grounds of detention are as follows:
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/-.
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.
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.
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.
contra learned counsel for the respondent-State and the Union of India
supported the impugned judgment of the High Court.
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.
High Court was justified in rejecting the stand of the appellant.
inevitable result is that the appeal is without merit and is accordingly