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Regional Deputy Director Versus Zavaray S. Poonawala

2015 (3) TMI 1134 - SUPREME COURT

Import of prohibited goods - The first respondent herein wanted to import into India a trophy of one stuffed leopard which he shot in Zambia. Leopard is a protected and prohibited species under Schedule I of the Wild Life (Protection) Act, 1972 and also under the Convention of International Trade on Endangered Species of Wild Fauna and Flora (CITES). Therefore, requisite permission under the aforesaid provisions is needed to import such a trophy.

Held that:- What flows from the conjo .....

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species involved and further the proposed recipient is suitably equipped of house and care for it. Insofar as the Management Authority is concerned, it is to satisfy itself that the specimen is not to be used for primary commercial purposes.

The High Court while observing that the only function of the Management Authority was to ensure that ‘specimen’ is not to be used for commercial purpose looked into the function of Management Authority alone. Error is committed by glossing over t .....

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t No. 1 to apply to the Scientific Authority for necessary permission in the light of the observations made hereinabove. - Civil Appeal No. 7130 of 2003 - Dated:- 26-3-2015 - A.K. Sikri and Rohinton Fali Nariman, JJ. JUDGMENT [Judgment per : A.K. Sikri, J.]. - The first respondent herein wanted to import into India a trophy of one stuffed leopard which he shot in Zambia. Leopard is a protected and prohibited species under Schedule I of the Wild Life (Protection) Act, 1972 and also under the Conv .....

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159) E.L.T. 44 (Bom.)] has come to the conclusion that the authorities which were required to give the permission had accorded due permission to the respondent No. 1 and further that in such circumstances CITES had no locus to entertain the application or to reject it. The writ petition was, accordingly, allowed. Present appeal, via grant of special leave, arises out of the aforesaid judgment. 3. Now, some facts in detail : Respondent No. 1 hunted certain animals in Zambia in June, 2000. No .....

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rd is a protected and prohibited specie under Schedule I of the Wildlife (Protection) Act, 1972 (hereinafter referred to as the Act ). It is also treated as an endangered species at the international level. Therefore, for import of such a trophy into India, various statutory or legal permissions are required to be taken. 5. Respondent No. 1 for import of the aforesaid trophy of stuffed leopard made his first application on 27-4-2002 to the Regional Deputy Director, Wild Life Protection (WLP .....

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Inspector General (W.L.). 6. On 23-7-2002, permission was granted by the Joint Director, DGFT. Permission was granted in the form of a license. This license was, however, issued subject to certain conditions stipulated therein. Condition No. 4 thereof, with which we are concerned, reads as under : The applicant to obtain the clearance and certificate from DGFT and CITES Authorities wherever required . 7. It would be pertinent to mention here that after the aforesaid permission was gra .....

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ich are set out in Appendix-I of the Convention, their import and export is to be restricted inasmuch as the spirit of the prohibition against import/export/trade of trophies of prohibited and protected animals is that it is reprehensible to hunt and display endangered species which are fast vanishing from the earth. Such animals and trophies should not be made objects of aggrandizement and display in homes and commercial establishments. 8. On CITES apprising the DGFT with the aforesaid pos .....

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resaid show cause notice was issued by the Customs Authorities, respondent No. 1 filed the writ petition in the High Court, as mentioned above, under Art. 226 of the Constitution challenging the validity of CITES letter dated 8-11-2002 as well as show cause notice issued by the Customs Authorities under Sec. 124 of the Customs Act. In the writ petition, interim orders were passed by the High Court directing Regional Dy. Director CITES to treat the communication dated 8-11-2002 as the show cause .....

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petition on two counts: in the first place it is observed that the competent authorities to grant the permissions were DGFT and the Chief Wildlife Warden and respondent No. 1 had the requisite permissions from these two authorities. Secondly, in the opinion of the High Court, CITES had no role to play and did not have any locus to examine the issue of permission. As per the High Court, the only role of the CITES is to see that the imported item is not used for commercial purposes. 11. Afte .....

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en any permission. On the contrary it had first issued letter dated 1-11-2002 which was treated as the show cause notice and thereafter, it passed the order dated 17-1-2003 specifically refusing the permission. Thus, the conditions mentioned in the approval granted by the DGFT as well as Chief Wildlife Warden, were not met by respondent No. 1 and in the absence thereof it cannot be treated that there were any proper or valid approval/permission given by the DGFT or by the Chief Wildlife Warden w .....

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d by CITES, we deem it necessary to state the background and the objective with which the Convention was signed at global level. 14. As a result of indiscriminate killing of the animals and birds by human beings, either for its flesh or for trade or as a matter of hobby, several species of animals/birds have virtually become extinct. To curb the ecological imbalance caused by the ruthless killings of the animals and birds various legislations have been enacted by several countries worldwide .....

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hink of Leonardo da Vinci, who drew flying machines as he watched the flight of bats. In the area of human health, animals and plants often show us the way to stay in shape. As species are lost it impacts the possibility of future discovery and advancement. The impacts of biodiversity loss include clearly into fewer new medicines, greater vulnerability to natural disasters and greater effects from global warming. In nature, everything is interconnected. Unfortunately, we often have very little i .....

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When we destroy the ability of ecosystems to function naturally, we not only lose these free services but all too often have to pay to replace them. 16. Protecting these species contributes to a thriving, healthy planet for people s health and well-being. Wildlife nurtures a sense of wonder. It is integral to maintain the balance of nature. Ultimately, by protecting these species, we save this beautiful, vulnerable and utterly irreplaceable planet we call home. By protecting species, we al .....

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evelt said, When I hear of the destruction of a species, I feel just as if all the works of some great writer have perished. 18. The leopard, Panthera pardus, is a member of the felidae family. This secretive and elusive large cat was once distributed across eastern and southern Asia and Africa. Now at the center of a severe man-animal conflict because of expanding agricultural practices and development projects, its habitat has depleted to mostly sub-Saharan Africa and fragmented populatio .....

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pendix-I in 1975, as part an overall move to protect spotted cats from commercial trade in their skins. Therefore, international trade in it or its products for primarily commercial purposes was prohibited. However it has been recognized that killing of specimens may be sanctioned by countries of export in defense of life and property and to enhance the survival of the species. Furthermore, this resolution also recognized that the leopard was not endangered in several African countries. Equally, .....

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in the country of import. The leopard quota system was reviewed through Resolution Conf. 4.13 and 6.9, when quotas were raised or added, but the recommendations remained practically the same. Resolution Conf. 7.7 allowed the system to continue without the usual biannual review, but any increase in quota or any State not previously having a quota required the consent of the Conference of the Parties. Importers were allowed two skins per person per calendar year. Resolution Conf. 8.10 (Rev.) was .....

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port to the Secretariat detailing the number of trophies and skins exported in the previous quota year. 20. Keeping in view the aforesaid spirit, CITES, as an International Treaty, was made at Washington in the year 1973 with a view to regulate the international trade in specimen of selected species subject to certain control set out therein. The clear intention behind this international Convention is that all the consenting countries come together and make joint efforts to save the animal .....

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s of the ever-growing value of wild fauna and flora from aesthetic, scientific, cultural, recreational and economic points of view; Recognizing that people and States are and should be the best protectors of their own wild fauna and flora; Recognizing, in addition, that international co-operation is essential for the protection of certain species of wild fauna and flora against over-exploitation through international trade; Convinced of the urgency of taking appropriate measures to this end; 22. .....

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tation through international trade, thereby contributing to the significant reduction of the rate of biodiversity loss. The Preamble to the Convention states that the objective of CITES is to prevent the over-exploitation of species through international trade and to ensure their long term survival. The ultimate aim of the Convention is undoubtedly to promote species conservation. However, legally the convention only has jurisdiction over the regulation of international trade and cannot be held .....

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nts to a vast array of wildlife products derived from them, including food products, exotic leather goods, wooden musical instruments, timber, tourist curios and medicines. Levels of exploitation of some animal and plant species are high and the trade in them, together with other factors, such as habitat loss, is capable of heavily depleting their populations and even bringing some species close to extinction. Many wildlife species in trade are not endangered, but the existence of an agreement t .....

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t Authority are also contemplated in this convention which have to perform some designated function as mentioned therein. Clauses (f) and (g) of Article I defines these authorities as below : (f)  Scientific Authority means a national scientific authority designated in accordance with Article IX; (g)  Management Authority means a national management authority designated in accordance with Article IX. 27. Article II which deals with the fundamental principles, inter alia, mentions .....

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ance of these authorities we reproduce clause (iii) of Article III as under : The import of any specimen of species included in Appendix-I shall require the prior grant and presentation of an import permit and either an export permit or a re-export certificate, etc. An import shall only be granted when the following conditions have been met : (a) a Scientific Authority of the State of import advised that the import will be for the purposes which are not detrimental to survival of the species inv .....

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resaid provisions is that before import of any specimen of species included in Appendix I, prior import permit of Scientific Authority and Management Authority is required and before such a permit is given, the opinion of Scientific Authority as well as the Management Authority on particular aspects is required. Insofar as the Scientific Authority is concerned, it would look into the matter from two angles, namely, that the import is not detrimental to the survival of the species involved and fu .....

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c Authority. This resulted in passing the impugned directions which are clearly erroneous. It is here where the High Court clearly erred. It is stated at the cost of repetition that [the] matter is to be placed before the Scientific Authority and it is this Authority which has to form an opinion as to whether the import will or will not be detrimental to the survival of the species involved. This becomes extremely important to carry out the objects of the aforesaid conventions read with the fund .....

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