TMI Blog2015 (9) TMI 1018X X X X Extracts X X X X X X X X Extracts X X X X ..... iption 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 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 issued under the Foreign Trade (Development and Regulation) Act, 1992 cannot go contrary to the Wild Life (Protection) Act, 1972. But, the corollary is not true. If the hunting of something is not prohibited under the Wild Life (Protection) Act, it does not mean that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr S Murugappan For the Respondent : Mr S Makesh, ACGSC (Res 1 to 4) Mr Sundareswaran (Res ) Mr M T Arunan ( Res ) ORDER V. Ramasubramanian, J. The petitioner has come up with the above writ petition challenging the Notification dated 06.02.2015 issued by 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 Society under the Tamil Nadu Societies Registration Act, 1978. 4. The petitioner has come up with the above writ petition challenging a Notification bearing No.110(RE-2013)/2009-2014 dated 06.02.2015, issued by the Director General of Foreign Trade which is the second respondent herein. The Notification has been issued actually by the Central Government in exercise of the powers conferred by Section 5 of the Foreig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icy 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, paragraphs 10 and 11 are extracted as follows: 10. The respondent humbly submits that based on representation from different quarters on preventing cruelty to animals and request to Department of Commerce to ban export of shark fins, a meeting was held under the Chairmanship of Commerce Secretary on 13.01.2015 which was attended by the representatives of Department of Commerce, Department of Animal Husbandry Dairying Fisheries, Directorate General of Foreign Trade (DGFT), Marine Product Export 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 quantity a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meeting of the Members of the International Union for Conservation of Nature and Natural Resources. 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 Convention. Since the aim of this Convention is to ensure that International Trade in specimens of wild animals and plants does not threaten the survival of the species in the wild, the Secretariat of General Agreement on Tariffs and Trade (GATT) was consulted before the Convention was finalised. The Convention seeks to accord varying degrees of protection to more than 35,000 species of animals and plants. India is a party to the Convention. 11. Under Appendix II to the Convention, only a few varieties of Shark (about 18 species of shark) are protected as per Article IV of the Convention. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adictory. 15. On the first limb, it is true that under Section 9 of the Wild Life (Protection) Act, 1972, there is a prohibition of the hunting of any wild animal specified in Schedules I, II, III and IV except as provided under Sections 11 and 12. Sections 11 and 12 carve out some exceptions to the general rule in Section 9, in cases where a danger to human life is perceived or the hunting becomes necessary for education or scientific purposes. In Part II-A of Schedule I to the Act, all varieties of Whale Shark and 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 Schedule I, under a notification dated 11.7.2001, so as to include all types of Shark and Ray at serial No.2. But, by a subsequent notification dated 05.12.2001, only 9 vari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 Crime Cell in the Ministry of Environment Forests, and a notification to this effect was issued on July 18, 2001. But, in December 2004, the nation was shocked to know that tigers may have disappeared from the Sariska Tiger Reserve in Rajasthan. By March 2005, the Wildlife Institute of India (WII) confirmed in its interim report (which it followed up with detailed habitat monitoring) that there were indeed no tigers left in Sariska. The Central Bureau of Investigation (CBI) was asked to inquire 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 se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion) Act 1992, the Foreign Trade Policy of Government of India and Customs Act, 1962 and the Wild Life (Protection) Act 1972 is main legislation to protect the Wild Life in India. The Director of Wild Life Preservation, Government of India is the Management Authority for CITES in India. 1.1 Wild Life (Protection) Act, 1972 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. The Schedule VI of the Act lists all the six plants of Indian origin included in CITES appendices. Trade in Scheduled animals / animal article i.e. animals/animal articles covered under Schedule I and Part II of Schedule II which also include some inverterbrate such as insects, corals, molluscs and sea cucumber are prohibited under the said Act. Similarly, the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n) 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 any other law for the time being in force. Items prohibited for export are not permitted to be carried in the personal baggage also. It is worth mentioning that all forms of wild life including their parts and products are prohibited for export except in cases where it is specifically allowed under different parts of ITC (HS) Classification of Export and Import Items. Peacock tail feathers which were earlier allowed for Export under a limited ceiling are now prohibited for Export. Export of exotic 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 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Schedule. A conflict between Note 1 and an entry will arise only in cases where what is prohibited by CITES or what is prohibited by Wild Life (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 Environment and Forests attended the meeting. Therefore, proper officers, whose presence would have made all the difference, while taking such an important decision, were not available in the meeting. The second limb of the third ground of attack is that the credentials of the non governmental organisation People for Animals , whose representativeMs.GouriMaulehki participated in the meeting, are not known. The third limb of the third ground of attack is that the various claims and statements made by the participants in the meeting held on 13. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the decisions taken at the meeting was vitiated, especially when the decision had not gone against the interests of the Ministry of Environment and Forests. 34. The second limb of the third ground of attack is that the credentials of the organisation People for Animals were not known. But, this argument loses sight of the fact that the representative of the said organisation was not a loner at the meeting. This can be seen even from a bare perusal of the Minutes of the Meeting. 35. The very object of convening the meeting, was summarised 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/Sharks, except those 9 species banned under the Wild Life (Protection) Act, 1972, was under Open General License and that the entire export may be brought unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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% of the large Sharks have been wiped out regionally. 41. It appears that on the IUCN's Red List of Endangered Species, 50 Shark species are listed as being at high risk of extinction and 63 additional species are approaching threatened status. Another 199 species of Shark are considered data deficient . It is reported that many of the estimated 73 million Sharks killed each year, are killed only by the Shark Finning Industry. 42. There are several countries in the world, such as Canada, 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 Attri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in as such. Hence the absence of accurate data will not make the decision arbitrary. 47. It is common knowledge that at times and in cycles, even normal fishing activities are prohibited, so as to enable the aqua life to get nurtured. Therefore, the re-introduction of the total prohibition, after a gap of 13 years cannot be taken 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 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 tha ..... 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