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.

Headnote:COFEPOSA Act, 1974 — Section 3 — Preventive detention order — Appellant-petitioner arrived from Singapore and declared that he was in possession of electronic goods worth Rs.30,000/- — Examination of his baggage revealed electronic goods in his possession worth Rs. 8,22,500/- (CIF) and Rs. 11,51,500/- (Market value) — Appellants stand was that there was no basis for holding that there was imminent possibility of detenu coming out on bail — High Court noted that Detaining Authority indicated that it was aware of fact that detenu had filed petition for bail which was withdrawn and dismissed the writ — Appeal — As regards prayer for bail by detenu, only requirement was that detaining authority should be aware that detenu was already in custody and was likely to be released on bail — Subjective satisfaction of detaining authority that there was likelihood of detenu being released on bail was subjective satisfaction based on material — High Court was justified in rejecting the stand of appellant.
Held : 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. (Para 7)

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 al

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2006 Supreme(SC) 587

IMPORTANT POINTIn 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.

Cases Referred (1)

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.