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2015 (9) TMI 1018 - MADRAS HIGH COURT

2015 (9) TMI 1018 - MADRAS HIGH COURT - 2016 (331) E.L.T. 193 (Mad.) - Challenge to Notification bearing No.110(RE-2013)/2009-2014 dated 06.02.2015 - prohibition on the export of Shark fins of all species of Shark - Held that:- Convention by itself does not prohibit the adoption of more stricter standards by any Member country, depending upon the local conditions and the Municipal laws. Apart from the fact that the Convention itself gives a leverage to the Member countries, it is settled law in .....

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ard, it is needless to point out that a Municipal law which prescribes a higher standard, will prevail over the prescription contained in the Convention

Domestic market and the foreign market does not deserve equal treatment. The parameters for including a species of animal or plant in the Wild Life (Protection) Act, are different from including the same in the Foreign Trade Policy. The scope, object and purpose of the Wild Life (Protection) Act and the Foreign Trade (Development and .....

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even the export of the same cannot be prohibited.

There is no conflict between the legal framework under the Wild Life (Protection) Act, 1972 and the Foreign Trade (Development and Regulation) Act, 1992. In fact, the legal framework has been developed in such a manner that the Ministry of Environment and Forests works in close coordination with the Ministry of Commerce. What is prohibited under the Wild Life (Protection) Act, 1972, cannot even be hunted and hence, there is no question .....

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to find out whether the facts and figures relied upon by someone to propagate his view point is correct or not. The Food and Agriculture Organisation (FAO) of the United Nations has pointed out in their official website that an estimated 73 million Sharks are killed each year, at the rate of 10,000 sharks per hour. According to their statistics, 90% of the large Sharks have been wiped out regionally. - mere fact that the quantity of depletion is not mentioned is no ground to hold that the decisi .....

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nt at any point of time.

Very negligible percentage of population captures Shark for domestic consumption. The fact that there is no prohibition for the capture of Sharks for domestic consumption, is no ground to hold the ban on export of Shark fins as arbitrary. If there is no prohibition for export, the total quantity of Shark captured, may increase manifold. Therefore, the distinction that the respondents have made between domestic consumption and export, is actually a reasonable .....

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the Director General of Foreign Trade, prohibiting the export of Shark fins of all species of Shark. 2. Heard Mr.S.Murugappan, learned counsel for the petitioner, Mr.S.Makesh, learned Additional Central Government Standing Counsel appearing for respondents 1 to 4, Mr.V.Sundareswaran, learned counsel appearing for the 5th respondent and Mr.M.T.Arunan, learned counsel appearing for the 6th respondent. 3. The petitioner is an Association of Exporters of Dried Marine Products. It is registered as a .....

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e Policy 2009-2014. By the said Notification, the Central Government has banned the export of Shark fins of all species of Shark. 5. The case of the petitioner is that India, which has a long coastal line of about 7500 Kms., has thousands of fishing villages along the coastal line. Though Shark meat is consumed only by a very small percentage of the Indian population, Shark fins are used extensively by the Chinese, who consider the same to have medicinal effect. Therefore, several countries expo .....

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ernational Trade in Endangered Species of Wild Fauna and Flora, known in brief as CITES, only 18 species out of 480 species of Shark are protected and hence, a total ban on export is contrary to the Convention; (ii) that even under Schedule I to the Wild Life Protection Act, only 6 species of Shark and 3 species of Ray are prohibited of being hunted and hence, the Notification issued under the Foreign Trade Policy is contrary to law; (iii) that the decision to impose a total prohibition was take .....

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Trade has filed a counter affidavit on behalf of the second respondent as well as the others. It is stated in the counter affidavit that Section 5 of the Foreign Trade (Development and Regulation) Act, 1992, confers power upon the Central Government to formulate and announce the Foreign Trade Policy and also to amend the policy from time to time. In paragraphs 10 and 11 of the counter affidavit, the second respondent has stated the rationale behind the imposition of the ban. Therefore, paragrap .....

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rt Development Authority (MPEDA) and the representative of People for Animals. During the meeting it was felt that while there was a ban on the export of 9 species of sharks as notified by Ministry of Environment Forests & Climate change, it is extremely difficult, at the time of capture of fishes/sharks, for anyone to differentiate between the prohibited species and non-prohibited species. The representative of MPEDA was of the view that since export of shark/shark fins both in terms of qua .....

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omestic consumption by the local fisherman, it is the large lines/trawlers of the foreign origin who were obtaining permits from Ministry of Agriculture are involved in the gruesome practice of fining of sharks, resulting in decline in shark numbers and hence requested that there should be a complete ban of shark fishing for fins in the Indian EEZ as it was resulting in not only destruction of Indian Fish resources and threatening the livelihood of food security of Indian Fishermen, but also res .....

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Agriculture and Department of Fisheries may take a call on whether to ban capture of sharks for shark fins/shark oil, for domestic consumption. 11. The respondent humbly submits that the Secretary and Director General of Department of Agriculture Research and Education and Indian Council of Agricultural Research had also endorsed the proposal to ban export of shark fins. It is further submitted that in addition, representations were received from certain activities groups for preservation of th .....

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It appears that the text of the Convention was finalised at a meeting of representatives of about 80 countries on 03.3.1973 and the Convention entered into force on 01.7.1975. 10. Interestingly, this Convention was not a product of any resolution passed by the General Assembly of the United Nations Organisation. However, almost all Member States of the United Nations, with the exception of a few, are parties to this Convention. It is stated that as of May 2014, 180 countries have ratified the C .....

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ieties of Shark (about 18 species of shark) are protected as per Article IV of the Convention. There are about 480 varieties of Shark, all of which are not protected by the Convention. Therefore, it is contended by the petitioner that the impugned notification travels beyond the scope of the Convention to which India is a party. 12. But, at the outset, this contention of the petitioner is liable to be rejected outright, for two reasons. The first reason is that under Article XIV of the very same .....

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e, taking, possession or transport of species not included in Appendix I, II or III." 13. Therefore, the Convention by itself does not prohibit the adoption of more stricter standards by any Member country, depending upon the local conditions and the Municipal laws. Apart from the fact that the Convention itself gives a leverage to the Member countries, it is settled law in this country that an International Convention ratified by India is enforceable, only to the extent that it is not in c .....

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iption contained in the Convention. Hence, the first ground of attack is rejected. Ground No.2 14. The second ground of attack to the notification has 2 limbs. The first is that even under Schedule I to the Wild Life Protection Act, only 6 species of Shark and 3 species of ray are prohibited of being hunted and hence, the Notification issued under the Foreign Trade Policy is contrary to law. The second limb of this ground of attack is that thenotification is also self contradictory. 15. On the f .....

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9 varieties of Shark and Ray are included. Therefore, it is clear that the hunting of all varieties of Whale Shark and 9 varieties of Shark and Ray is prohibited under the Wild Life (Protection) Act, 1972. 16. It is also true that the Central Government is empowered by Section 61 of the Wild Life (Protection) Act to amend Schedules I and III from time to time, depending upon the need. Therefore, in exercise of the power so conferred by Section 61(1), the Central Government amended Part II-A of S .....

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ent. The parameters for including a species of animal or plant in the Wild Life (Protection) Act, are different from including the same in the Foreign Trade Policy. The scope, object and purpose of the Wild Life (Protection) Act and the Foreign Trade (Development and Regulation) Act, 1992 are completely different. As a matter of fact, if a species of animal or plant is prohibited of being hunted under the Wild Life (Protection) Act, it cannot also be exported and hence, any Foreign Trade Policy .....

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nt and Forests. A look at the historical background of the creation of this Bureau may be essential. 19. On 24th May 1994, the Ministry of Environment and Forests, Government of India, constituted a Committee on Prevention of Illegal Trade in Wildlife and Wildlife Products. The committee submitted its report on 8th August 1994. The Committee observed that illegal trade in wildlife has raised its head in an organized manner in the country and lack of well - structured enforcement machinery and a .....

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ligence network. 20. In the year 2000 international attention focused on India due to apparent escalation in illegal wildlife trade in the country, following significant seizures of wildlife articles in Ghaziabad (18/12/1999) and Khaga (12/01/2000). In the 11th COP of CITES (Kenya 2000) India promised to open a Wildlife Crime Cell to tackle poaching of tiger and illegal trade in tiger parts and derivatives. Therefore, the Minister of Environment and Forests approved the constitution of Wildlife .....

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quire into the disappearance. CBI investigation revealed that since July 2002, poachers had been killing tigers in the reserve and that the last six tigers were killed in the summer - monsoon of 2004. 21. Consequently, the Ministry of Environment and Forests set up Tiger Task Force on April 19, 2005, to review the management of tiger reserves. Task Force suggested to set up a wildlife crime bureau at the central level, with nodes in each tiger range state with capacity to both investigate and fo .....

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reation of the said Bureau as a statutory authority under the Wild Life Protection Act, 1972. The Wild Life (Protection) Amendment Act, 2006, was passed in the Parliament during its monsoon session of 2006, providing enabling provisions for constituting the Bureau. The Act received the assent of the President on 3rd September 2006, and its provisions came in to force on 4th September 2006. The Government of India notified the constitution of the Tiger and Other Endangered Species Crime Control B .....

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ral heads of information provided in the website. One of the heads of information available in the website of WCCB is "CITES and Trade facilitation". In the page relating to this CITES and Trade Facilitation, there is a link to "Legal Framework for International Trade". 24. The relevant portions of the said "Legal Framework for International Trade", available in the website of WCCB are as follows: "1. POLICY AND LAWS CONCERNING CITES IN INDIA International trad .....

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972 Hunting of wild animals has been prohibited under Sec. 9 of the Wild Life (P) Act, 1972. No person is allowed to hunt any wild animal specified in Schedule I, II, III and IV except as provided under sections 11 and 12 of the Act. The Act also prohibits under section 17A, the collection or the trade in specified plants (whether alive or dead or part or derivative) i.e. those listed in Schedule VI of the Act, from any forest land and any area specified by notification by the Central Government .....

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s and products is, however, allowed for the purpose of scientific research and exchange of animals between Zoos and is subject to licensing by the Director General of Foreign Trade (DGFT), Government of India. The Act has been amended in 2006 leading to the establishment of the National Tiger Conservation Authority and the Wildlife Crime Control Bureau (WCCB) with a statutory backing. 1.2 Foreign trade (Development and Regulation) Act 1992 This Act replaces the earlier Imports and Exports (Contr .....

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by order published in the official gazette, make provision for prohibiting, restricting or otherwise regulating in all cases or in specified classes of cases and subject to such exceptions, if any, as may be made by or under the order the import or export of goods. As per section 3(3) all goods to which any order under sub - section (2) applies shall be deemed to be goods the import or export of which has been prohibited under section 11 of the Customs Act, 1962, and all the provisions of that A .....

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t Authority for CITES in India as far as matter relating to wild fauna and flora are concerned and is enforced through the Customs Act, 1962. The Foreign Trade Policy is brought out under the provisions of the Foreign Trade (Development & Regulation) Act 1992, and it regulates the import and export of all goods including Wild Life. 1.3.2 Export policy The Export Policy permits re-export of commodities except to the extent such exports are regulated by any other provisions of this Policy or a .....

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c birds except 6 species listed under Table B of Schedule 2 is also prohibited at present. Further, the Ministry oof Commerce vide Public Notice No.47 (PN) 92-97 dated 30.3.1994 had prohibited the exports of a number of plants, plant portions and their derivatives if obtained, from wild. This list has been amended from time to time." 25. Therefore, it is clear that there is no conflict between the legal framework under the Wild Life (Protection) Act, 1972 and the Foreign Trade (Development .....

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ign Trade Policy issued in terms of the Foreign Trade (Development and Regulation) Act, 1992. There is no conflict between the two if an item not prohibited under the Wild Life (Protection) Act, 1972, is prohibited of being exported under the other enactment. A conflict will arise only when what is prohibited by the Wild Life (Protection) Act is permitted to be exported under the Foreign Trade (Development and Regulation) Act. Hence, the first limb of the second ground of attack is also liable t .....

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or exports and other species listed in CITES are subject to the provisions of the CITES." 27. But, Entry 31-A in the Table below Chapter 3 indicates that Shark fins of all species of Shark are prohibited for export. Therefore, the contention of the learned counsel for the writ petitioner is that Entry 31-A goes contrary to Note 1 under Chapter 3. 28. But, we fail to understand as to how Entry 31-A goes contrary to Note 1. Note 1 under Chapter 3 indicates the broad policy of the Government n .....

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(Protection) Act, 1972, is permitted by the notification issued under the Foreign Trade (Development and Regulation) Act, 1992 to be exported. Therefore, the second limb of the second ground of attack should also be rejected. Ground No.3 29. The third ground of challenge to the impugned notification has three limbs. The first is that the decision to impose a total prohibition on the export of Sharks was taken in a meeting convened by the Commerce Secretary. No officer from the Ministry of Enviro .....

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s made by the participants in the meeting held on 13.01.2015, were not supported by any evidence, statistics or a scientific analysis of the data relating to marine eco system. 30. Drawing our attention to the copy of the Minutes of the Meeting dated 13.01.2015 and elaborating on the above three limbs of the third ground of attack, it is submitted by Mr.S.Murugappan, learned counsel for the petitioner, that a notification issued in terms of a parliamentary enactment is a piece of subordinate leg .....

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to exercise the power in a reasonable way. 31. We have carefully considered the above submissions. 32. It is true that no officer from the Ministry of Environment and Forests attended the meeting held on 13.01.2015. But, it is seen from the Annexure to the Minutes of the Meeting that the following persons attended the meeting: (i) The Commerce Secretary, (ii) The Director General of Foreign Trade, (iii) Joint Secretary, Department of Commerce, (iv) Joint Secretary, Ministry of Agriculture, (v) D .....

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onment and Forests would have affected the outcome of the meeting. The ultimate decision taken in the meeting, has not gone against the interests of the Ministry of Environment and Forests. Aquaculture is also an area that comes within the Ministry of Agriculture, especially in the Department of Animal Husbandry, Dairying and Fisheries. Therefore, the non participation of anyone from the Ministry of Environment and Forests, is no ground to hold that the decisions taken at the meeting was vitiate .....

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ummarised by the Commerce Secretary in the following lines: "At the outset CS stated that while there was a ban on the export of 9 species of Sharks as notified by the Ministry of Environment and Forests, it is extremely difficult, at the time of capture of fishes/sharks, for anyone to differentiate between the prohibited species and non-prohibited species." 36. The representative from the Department of Agriculture seems to have suggested in the meeting that the export of Shark fins/Sh .....

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e meeting that since the quantum of exports of Sharks and Shark Fins was very small, both in terms of quantity and in terms of value, they would have no objection to a total ban, as it would safeguard the environment. 37. What was stated by the representative of a non-governmental organisation by name "People for Animals", was recorded in paragraph 6 of the Minutes of the Meeting. It reads as follows: "Ms. Gauri Maulekhi of "People for Animals" stated that while they wer .....

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urces and threatening the livelihood of food security of Indian fishermen, but also resulting in the degradation of the marine environment. She urged that the Department of Commerce may consider discontinuation of shark fins export." 38. The Minutes of the Meeting dated 13.01.2015 show that the participants aired different view points on the subject matter and that there was a free discussion of the pros and cons of a prohibition. Relevant factors have been taken into consideration and the .....

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e a transcript of whatever happens in the meeting hall. In any case, in the world of internet in which we live today, it is not difficult for anyone to find out whether the facts and figures relied upon by someone to propagate his view point is correct or not. The Food and Agriculture Organisation (FAO) of the United Nations has pointed out in their official website that an estimated 73 million Sharks are killed each year, at the rate of 10,000 sharks per hour. According to their statistics, 90% .....

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anada, British Columbia, Oman, South Africa, New South Wales (Australia), United Arab Emirates, Spain, Namibia, Gambia, Nicaragua, etc. which ban either in total or partially, the finning of Sharks. 43. It appears that in the United States, a Bill known as "Justice Attributed to Wounded Sharks (JAWS) Act" was introduced by Congressman Blake Farenthold, seeking the prohibition of the grant of foreign assistance to countries that do not prohibit Shark finning in the territorial waters of .....

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le dealing with a matter relating to Ecology and Environment is that if the benefits of a project that may have an adverse impact upon the environment are not clearly decipherable, then the Courts should follow the Precautionary Principle. In this case, the Committee had taken note of the fundamental fact that there had been a depletion of Sharks in the marine environment, especially in the Indian waters. Therefore, the mere fact that the quantity of depletion is not mentioned is no ground to ho .....

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of only 9 species of Shark and Ray was prohibited under the notification dated 05.12.2001. After a gap of about 13 years and 2 months, the Government had re-introduced a total prohibition once again. Therefore, no mala fides can be attributed in the exercise of power conferred by the statute. 46. As rightly admitted by the learned counsel for the petitioner, the population of different species of Shark, are not static, but floating, both in the literal sense as well as figuratively. They are al .....

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ken exception to. In any case, the notification is amenable to amendment at any point of time. Therefore, the third ground of attack is also liable to be rejected. Ground No.4 48. The fourth ground of attack to the impugned notification is that when the hunting of Shark for domestic consumption is not prohibited, the total prohibition of export of Shark fins, is irrational, arbitrary and unjustified. 49. But, we do not think that there is any merit in this contention. It appears that a very negl .....

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14. Hence, the fourth ground of attack should also fail. 50. One more incidental ground raised by the petitioner is that the impugned notification was issued all of a sudden, without even providing a breathing time for enabling the exporters to make transitional arrangements. 51. But, it is seen from paragraph 1.5 of Chapter 1-A of the Foreign Trade Policy that there is no compulsion to provide the facility of transitional arrangements. However, paragraph 1.5 states that whenever an export or im .....

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