2006 JTR(SC) 587
2006 44 AIC 106 ; 2006 4 AICLR 468 ; 2006 AIR(SC) 3606 ; 2006 AIR(SCW) 3565 ; 2006 AllMR(Cri)(SC) 2368 ; 2006 3 APLJ 29 ; 2006 3 CriCC 739 ; 2006 3 Crimes(SC) 83 ; 2006 CrLJ 3632 ; 2006 4 EastCrC(SC) 96 ; 2006 3 JCC 1412 ; 2006 6 JT 228 ; 2006 3 RCR(Cri) 525 ; 2006 7 SBR 415 ; 2006 7 Scale 3 ; 2006 6 SCC 64 ; 2006 3 SCC(Cri) 17 ; 2006 Supp3 SCR 357 ; 2006 2 WLC 215 ; 2006 KHC 900 ; 2006 5 Supreme 427
2006(5) Supreme 427
SUPREME COURT OF INDIA
(From Madras High Court)
Arijit Pasayat and C.K. Thakker, JJ.
Ibrahim Nazeer — Appellant
versus
State of Tamil Nadu and Anr. — Respondents
Criminal Appeal No. 732 of 2006
(Arising Out of S.L.P. (Crl.) No. 1194 of 2006)
Decided on 10-7-2006
Counsel for the Parties :
For the Appellant : K.K. Mani, Advocate.
For the Respondents : Mohan Parasan, ASG, V. Krishnamurthy, Manish Sharma and B. Krishna Prasad, Advocates.
IMPORTANT POINT
In a preventive detention where detenu is in custody, only requirement was that detaining authority was aware that detenu was already in custody and was likely to be released on bail which subjective satisfaction should be on basis of material.
Act Referred :CONSERVATION OF FOREIGN EXCHANGE AND PREVENTION OF SMUGGLING ACTIVITIES ACT : S.3
(A) The case involves the application of Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA), which empowers the government to issue detention orders to prevent an individual from indulging in smuggling activities. The statutory framework allows for preventive detention based on the subjective satisfaction of the Detaining Authority, provided there is sufficient material to believe that the detenu is likely to engage in smuggling. In this instance, the detention order was issued following the seizure of high-value electronic goods, with the authority relying on the likelihood of the detenu being released on bail as a catalyst for further smuggling activities.
(B) The core legal principle discussed is the nature of 'subjective satisfaction' of the Detaining Authority regarding the imminent possibility of a detenu being released on bail. The court held that such satisfaction, if based on available materials and general judicial trends in similar cases, does not require a pending bail application to be valid and should generally not be interfered with by the courts.
Facts of the case:
An individual arriving from Singapore was intercepted by Customs authorities after declaring electronic goods of low value. Upon inspection, three bags containing a significant quantity of car stereos, RAMs, digital video cameras, and mobile phones were recovered, with a market value exceeding 11 lakhs. One bag was tagged in another person's name, but the detenu admitted ownership. Consequently, a detention order was passed under the COFEPOSA Act to prevent future smuggling. The detenu challenged the order, arguing that the Detaining Authority lacked a factual basis to assume an imminent possibility of release on bail since a previous bail petition had been withdrawn.
Findings of Court:
The court found that the Customs authorities were justified in attributing the baggage to the detenu based on his own admissions and the fact that the named owner of one bag never claimed it. Regarding the bail issue, the court observed that the Detaining Authority's conclusion was based on the observation that bail is commonly granted in similar cases. The court noted that the requirement is simply that the authority be aware the detenu is in custody and likely to be released; it does not require a current pending application.
Issues:
Whether the detention order was invalid due to a lack of material evidence regarding the imminent possibility of the detenu being released on bail.
Ratio Decidendi:
The subjective satisfaction of the Detaining Authority regarding the likelihood of release on bail is based on the materials available and the general legal climate of similar cases. Such a conclusion is not an 'ipsi-dixit' if supported by the reality that courts often grant bail in similar smuggling cases, and the absence of a current bail application does not negate the possibility of future release.
Result:
Appeal dismissed; detention order upheld.
(A) The case involves the application of Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA), which empowers the government to issue detention orders to prevent an individual from indulging in smuggling activities. The statutory framework allows for preventive detention based on the subjective satisfaction of the Detaining Authority, provided there is sufficient material to believe that the detenu is likely to engage in smuggling. In this instance, the detention order was issued following the seizure of high-value electronic goods, with the authority relying on the likelihood of the detenu being released on bail as a catalyst for further smuggling activities.
(B) The core legal principle discussed is the nature of 'subjective satisfaction' of the Detaining Authority regarding the imminent possibility of a detenu being released on bail. The court held that such satisfaction, if based on available materials and general judicial trends in similar cases, does not require a pending bail application to be valid and should generally not be interfered with by the courts.
Facts of the case:
An individual arriving from Singapore was intercepted by Customs authorities after declaring electronic goods of low value. Upon inspection, three bags containing a significant quantity of car stereos, RAMs, digital video cameras, and mobile phones were recovered, with a market value exceeding 11 lakhs. One bag was tagged in another person's name, but the detenu admitted ownership. Consequently, a detention order was passed under the COFEPOSA Act to prevent future smuggling. The detenu challenged the order, arguing that the Detaining Authority lacked a factual basis to assume an imminent possibility of release on bail since a previous bail petition had been withdrawn.
Findings of Court:
The court found that the Customs authorities were justified in attributing the baggage to the detenu based on his own admissions and the fact that the named owner of one bag never claimed it. Regarding the bail issue, the court observed that the Detaining Authority's conclusion was based on the observation that bail is commonly granted in similar cases. The court noted that the requirement is simply that the authority be aware the detenu is in custody and likely to be released; it does not require a current pending application.
Issues:
Whether the detention order was invalid due to a lack of material evidence regarding the imminent possibility of the detenu being released on bail.
Ratio Decidendi:
The subjective satisfaction of the Detaining Authority regarding the likelihood of release on bail is based on the materials available and the general legal climate of similar cases. Such a conclusion is not an 'ipsi-dixit' if supported by the reality that courts often grant bail in similar smuggling cases, and the absence of a current bail application does not negate the possibility of future release.
Result:
Appeal dismissed; detention order upheld.
JUDGMENT
Arijit Pasayat, J. — Leave granted.
2. 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.
3. 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.
4. 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.
5. 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 Authoritys 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.
6. Per contra learned counsel for the respondent-State and the Union of India supported the impugned judgment of the High Court.
7. 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.
8. The inevitable result is that the appeal is without merit and is accordingly dismissed.
Appeal dismissed.
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