TMI Blog2020 (10) TMI 646X X X X Extracts X X X X X X X X Extracts X X X X ..... ssession, under any law. HELD THAT:- The writ jurisdiction under Article 226 of the Constitution of India can be exercised even to protect the apprehended violation of right or to enforce statutory duty. The advisory introduced by the Central Government is in public interest and for a limited period of six months. We do not find it just and expedient to consider the apprehension raised by the petitioner and deal with the issue raised on their own merits. At the present juncture, the advisory issued by the Ministry of Environment, Forest Climate Change sought to bring within its control such exotic live species since there was no requirement to maintain any statutory record of possession, acquisition, storage, captive breeding and domestic trade of wild animals/birds within India under the Wild Life (Protection) Act, 1972, the Customs Act, 1962, the Code of Criminal Procedure nor the Indian Penal Code - Therefore, it appears that the Government of India in the absence of any regulation to cover exotic species appears to have framed the scheme of Voluntary Disclosure (Annexure-2) and provide for making declarations, whereby the declarant would not be required to produce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or a limited period of six months from the date of issue of such notification to the public at large, the object behind such Voluntary Disclosure Scheme being in larger public interest, is required to be promoted by all Government Departments in order to ensure that any declarer under the scheme is not subjected to any other penal or confiscation under any enactment. If any action is initiated, in such circumstances within the period stipulated in the notification, the same would be clearly, manifestly arbitrary and illegal. Section 108 of the Customs Act, 1962 is intra vires accordingly declining the prayer impugning the said provision. Insofar as the prayer for issuance of circular in this regard is concerned, we refrain from issuing any such direction, as prayed for, while leaving the same to the wisdom and discretion of the appropriate departments including the Central Board of Indirect Taxes. Petition disposed off. - D.B. Civil Writ Petition No. 7491/2020 - - - Dated:- 14-10-2020 - HON'BLE THE CHIEF JUSTICE INDRAJIT MAHANTY And HON'BLE MR. JUSTICE PRAKASH GUPTA For the Petitioner : Mr. Karan Bharihoke through Video Conferencing Mr. H.V. Nandwana throu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may deem fit and proper in the circumstances of the case. 2. It appears from the pleadings that the Government of India, Ministry of Environment, Forest and Climate Change has issued an Advisory on 11.06.2020 (Annexure-1) under the heading Government issues advisory to streamline the process for import and possession of exotic live species in India and thereafter in furtherance thereof, a Voluntary Disclosure Scheme was issued by the Wildlife Division, Government of India under Annexure-2. The Voluntary Disclosure Scheme is apparently issued for the purpose of collecting stock information for persons who have in their possession exotic live species i.e. exotic live animals and birds within India through such voluntary disclosure and limited such disclosure upto the period till December, 2020. Such scheme was evolved by the Government of India since it did not possess necessary information of such stock of exotic species either by the State or the Union. 3. On perusal of the Voluntary Disclosure Scheme, it appears that options have been provided to persons to avail the benefit of the scheme within the stipulated time limit of six months and thereafter to maintain statut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ension that in the event of or before filing of the declaration under the advisory issued by the Government of India under the Ministry of Environment Forest and Climate Change, the Customs Authorities/ DRI may exercise powers under Section 108 of the Customs Act, 1962 and to initiate coercive measures thereunder. 8. The petitioner has referred to and relied upon the judgment dated 30.08.2019 delivered by the Division Bench of the Allahabad High Court in PIL Civil No.22903/2019, Dinesh Chandra Vs. UOI, in support of his submissions regarding legal position prevailing with regard to domestic possession, acquisition, trade, breeding, transportation as against the international trade of exotic species, which is extensively dealt with in the said judgment. 9. On the other hand, Mr. R.D. Rastogi, learned Additional Solicitor General has opposed the challenge to the validity of Section 108 of the Customs Act, 1962 and submitted that validity of the provisions of Section 108 is beyond any reasonable doubt and the prayer made in this respect ought to be outrightly rejected. He further submitted that neither any action was initiated against the petitioner under the Customs Act or any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Protection) Act, 1972. (c) The Customs Act, 1962 as well as the Foreign Trade (Development and Regulation) Act, 1992 are applicable only, qua International Trade of exotic live species and India is signatory to the Convention of International Trade in Endangered Species of Wild Fauna and Flora (CITES). The CITES is an International Convention aimed and ensuring that international trade of wild animals, birds specified in various appendices available thereto, does not threaten their existence and their native habitats. The enforcement of CITES provisions at the point of import or export is by Custom/DRI Officers. (d) The enforcement of CITES provisions within India at any place other than the point of import/export is carried out by the State/Union Territories. The Wild Life Department is headed by the Chief Wildlife Warden under the Wild Life (Protection) Act, 1972, however it is clear therefrom that such officers have no jurisdiction in the matter of possession, breeding domestic trade/ transportation of exotic live species , since the same is not covered by the Wild Life(Protection) Act, 1972. (e) The term exotic live species has not been notified under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... veterinary care, housing and other aspects of well being of such species. Once the database for exotic species is available with the Government of India, it would assist it in effective control and management of zoonotic diseases and whose guidance would be available from time to time for ensuring safety of animals and humans. 15. The apparent objective behind the scheme further appears to be to streamline the CITES compliances and provide procedure for import of exotic live species and requires their registration/declaration of the progenies of such imported exotic live species . 16. Insofar as the Voluntary Declaration Scheme is concerned, the Hon'ble Supreme Court in Hira Lal Hari Lal Bhagwati Vs. CBI, New Delhi, (2003) 5 SCC 257, although in the context of another Voluntary Disclosure Scheme, observed as follows:- 30....The true fact and import of the Kar Vivad Samadhan Scheme, 1998, in our view, is that once the said Scheme is availed of and all the formalities complied with including the payment of the duty, the immunity granted under the provisions of the Customs Act, 1962 also extends to such offences that may prima facie be made out on indentical allegat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y charge of smuggling or dealing in or possessing the smuggled exotic species, whether on conjectures or surmises, or on the strength of any oral statement. 19. Since the Union Government acting through the Ministry of Environment, Forest and Climate Change for granting immunity, though for a limited period of six months from the date of issue of such notification to the public at large, the object behind such Voluntary Disclosure Scheme being in larger public interest, is required to be promoted by all Government Departments in order to ensure that any declarer under the scheme is not subjected to any other penal or confiscation under any enactment. If any action is initiated, in such circumstances within the period stipulated in the notification, the same would be clearly, manifestly arbitrary and illegal. 20. It would be pertinent herein also to take note of the judgment of the Hon'ble Supreme Court in D.K. Basu Vs. State of West Bengal (1997) 1 SCC 416 and in A. Tajudeen Vs. Union of India (2015) 4 SCC 435, wherein their Lordships have noted various instances of compelled testimony by misuse of provisions such as Section 108 of the Customs Act, 1962, therefore, misuse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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