2006 (7) TMI 594 - SC - FEMA

Dismissal of habeas corpus petition filed by one Rizwana Ziyath seeking release of her husband, the present appellant Ibrahim Nazeer ( 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 Held 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. 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. Appeal dismissed.

Summary

Issues:
- Legality of judgment dismissing habeas corpus petition seeking release of detenu under COFEPOSA Act.
- Detention based on smuggling goods, valuation, and imminent possibility of detenu coming out on bail.
- Challenge to Detaining Authority's view on detenu's bail possibility.
- Subjective satisfaction of detaining authority and interference with such satisfaction.
- Comparison with precedent of Rajesh Gulati v. Govt. of NCT of Delhi.

Analysis:
The Supreme Court addressed the legality of a judgment by the Madras High Court dismissing a habeas corpus petition seeking release of a detenu detained under the COFEPOSA Act for smuggling goods. The detenu was found in possession of various electronic items upon arrival in Chennai, leading to his detention under Section 3(1)(i) of the COFEPOSA Act to prevent future smuggling activities. The detenu's wife challenged the detention, arguing lack of independent inquiry by the Detaining Authority and disputing the imminent possibility of the detenu coming out on bail.

The High Court upheld the detention, noting that the detenu was in possession of the goods and that there was a compelling necessity to prevent him from smuggling activities. The Detaining Authority's view on the detenu's bail possibility was considered justified based on the materials collected, even though the detenu had withdrawn a previous bail petition. The High Court dismissed the habeas corpus petition, leading to the appeal before the Supreme Court.

In the appeal, the appellant contended that the Detaining Authority's view on the detenu's bail possibility was incorrect, emphasizing the lack of a subsequent bail application by the detenu. The Supreme Court highlighted that the detaining authority's subjective satisfaction on the bail possibility should not be interfered with unless there is material to the contrary. The Court noted that the Detaining Authority's conclusion was based on existing materials and previous bail orders in similar cases.

The Supreme Court compared the present case with the precedent of Rajesh Gulati v. Govt. of NCT of Delhi, where multiple bail applications had been rejected, leading to a different outcome. In the current case, the Court found no merit in the appeal and upheld the judgment of the High Court, emphasizing the subjective satisfaction of the detaining authority and the lack of grounds to interfere with such satisfaction. The appeal was dismissed accordingly.