TMI Blog2021 (1) TMI 523X X X X Extracts X X X X X X X X Extracts X X X X ..... he domestic trade, possession or breeding by any person including aviaries, but only international trade. It was further observed that internal trade i.e. domestic trade within India, of exotic species is not found in any schedule of the Wildlife (Protection) Act, 1972 and was never prohibited. Only external trade i.e. international trade is governed by the conditions of Foreign Trade Policy. The Hon ble Allahabad High Court further held that domestic trade in exotic birds/ animals is not prohibited and substantial export of the exotic birds from India is seen since several years in view of large scale breeding of exotic species in India. It is further held that no documents are specified and no permission is required as per Customs Act for keeping, breeding, buying, selling and exhibiting of such exotic birds/ animals within the country. It is further held that the exotic birds/animals are not notified under Section 123 of the Customs Act. Thus, there is no presumption of smuggling on the person who is in possession of such exotic birds/ animals, also do not attract the provisions of Chapter IV-A of the Customs Act. The Wildlife Department headed by the. Chief Wildlife Wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncis are involved in trade/exchange of exotic birds/animals in Indore, for last many years. 2.4 Based on a purported intelligence that the animals and exotic birds are of foreign origin, are smuggled into India, a search was conducted by the officers of DRI, Indore, along with the Forest Officials at the premises of the Appellant on 04.05.2019. A Panchnama was drawn by the officers of the DRI at the premises of the Appellant. 2.5 Vide seizure memo dated 04.05.2019, the officers of the DRI seized 192 exotic species (birds and animals) under the reasonable belief that they had been smuggled into India in contravention of the Customs Act, 1962 (the Customs Act). Subsequently, the said exotic birds and animals were handed over to the zoo authorities under supardanama dated 04.05.2019. 2.6 During the course of the investigation, statement of various persons including the appellant and the co-noticees others were recorded under Section 108 of the Act. The appellant has consistently submitted that he had purchased the exotic birds and animals domestically (within India). 2.7 Subsequently, show cause notice dated 01.11.2019 was issued by Joint Director, DRI, proposing to conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The aforementioned suppliers have also inter-alia stated that they sourced the birds/ animals from various suppliers located in India. The supplier also stated in their statement the name of few persons from whom they have sourced, who were located at Mumbai, Chennai, etc. It also came out in the statement of the suppliers located at Indore, that some of these exotic birds/ animals may have been smuggled into India by other persons. The suppliers also stated that all the trade in the exotic animal is normally carried out in cash and they have supplied the exotic birds/ animals to the appellant on payment received in cash. 2.12. The statement of other members of the NGO Sanstha Karuna Sagar namely Sandeep Garg alias Sandeep Sagar was recorded, wherein he also confirmed the welfare activities for birds/ animals by their organizations. He also stated that Sanstha Karuna Sagar is a registered organization and the founders are Shri Mohan Lal Garg alias Mohan Lal Sagar, the appellant, Pushpak Agarwal alias Pushpak Sagar and Karan Sagar. The main object of the Sanstha Karuna Sagar is the well being of birds and animals. They look after many species of birds and animals. That, San ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia, no breeding and keeping permission/ licenses have been provided in India of the seized Non-native birds / animals. 2.16. On enquiry by Revenue, the ADG Wildlife who is the implementing agency for CITES (Convention of International Trade in Endangered Species of Flora Fauna) India, vide his letter dated 07.06.2019 (RUD-25) submitted that no CITES permit or documents have ever been issued for the import of seized exotic/animals and birds. It further appeared that fourteen out of twenty two species of birds/ animals seized are specified in the appendix of CITES. 2.17. It further appeared to Revenue that as per the import policy, Condition 5 of Chapter 1- Import of Live Animals, that is, the wild animals as defined under Wildlife Protection Act, 1972 is permissible against the license to Zoos, Zoological parks, circus companies, private individuals, on the recommendation of Chief Wild Life Warden of the State, subject to the provisions of the Convention of International Trade in Endangered Species of Fauna and Flora (CITES). Under Condition No. 6 it appeared that import of Wild Animals (including their parts and products) as defined in the Wildlife Protection Act, is prohib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... firmed that they have sourced from traders/ suppliers located in India and thereafter have supplied to the appellant. Revenue have not led any evidence of smuggling on the part of the appellant or the immediate suppliers to the appellant, save and except suspicion raised. 3.2 While passing the impugned Orders, the authorities below erred in appreciating the fact that- (a) domestic trade in exotic animals and birds is not prohibited; (b) exotic birds/animals do not come under the purview of Wild Life Protection Act, 1972, inasmuch as the same are not included in the schedule. There is no provision under the Wildlife (Protection) Act, 1972 to issue license or permission for dealing in exotic birds. There are no Rules and Regulations and procedures for keeping, breeding, buying, selling and exhibiting exotic animals and birds within country which have been bred in India; (c) No permissions are required as per the Customs Act for domestically keeping, breeding, buying, selling and exhibiting exotic birds and animals; (d) The exotic animals/birds are not notified under Section 123 of the Customs Act, 1962, therefore, there is no burden of proof on the appellant regarding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l and statutory requirement governing the trade/ breeding within India, it is not possible to get the census of exotic birds/ animals. It is further urged that as per the law in India, no registration, certificate, license, bills is required for the possession of exotic birds/ animals. It is legal to possess and trade in exotic birds and animals within India, which are of foreign origin. As a buyer of such exotic animal and birds, the appellant has got no means to find out the exact source of supply. That there is no violation of the provisions of the Customs Act, 1962 for possession of exotic birds/ animals. It is further urged that the jurisdiction of the Customs Department is confined to the point of entry at the time of import. 3.7. In para 23 of the show cause notice, it is alleged that smuggling of marmoset monkeys is clearly established from the statement of co-noticee No. 2 and 3 i.e. Golu and Monu, which is further corroborated by the statement of Imran. Further, noticee No. 2 Golu, in his statement has stated that he is aware that the birds/animals are smuggled into India through sea route. It is further urged that the Court below have erred upheld the allegation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per Customs Act for keeping, breeding buying, selling and exhibiting such animals (exotic animals) within country which have been bred in India. Animals have been bred in captivity in India, Customs Act does not have role in it . 38. From plethora of material adduced by the petitioner, which are referred in preceding paragraphs, it is very clear that trade, possession, transportation and breeding of exotic animals/exotic birds within India is not governed and restricted by Wildlife (Protection) Act, 1972. 41. The exotic animals/birds are not notified under Section 123 of the Customs Act, 1962. Thus, there is no burden on the person who is in possession of exotic animals/birds, to prove his lawful acquisition or lawful importation into India under the provisions of Customs Act, 1962 . (emphasis supplied) 42. The 'exotic animals/birds' do not attract provisions of Chapter IVA- Detection of illegally imported goods and prevention of disposal thereof, containing Sections 11A to 11G, as they are not notified under Section 11B. Thus, the person in possession of 'exotic animals/Birds is not bound to comply with requirements of Section 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any direction be given to the Government in this regard to amend Wildlife (Protection) Act, 1972 or Customs Act, 1962. At the point of Import/Export, a Customs/DRI officer has jurisdiction to detect and prevent International Trade, i.e., import/ export of live animals and birds into or out of India, if found in violation of the provisions of Customs Act, 1962 read with the 'CITES' and Foreign Trade Policy. Thus, any live animals and birds, while being smuggled through the Indian Customs Frontiers, can be seized at the point of Import/Export by DRI/Customs and the concerned persons can be subjected to penal and confiscatory provisions in accordance with the provisions of the Customs Act, 1962. There is no restriction on domestic trade, keeping, captive breeding, buying, selling and exhibiting 'exotic animals/exotic birds' within India, either under the Wildlife (Protection) Act, 1972 or under the Customs Act, 1962 or under the Foreign Trade (Development Regulation) Act, 1962 or CITES. Any person in possession of 'exotic animals/exotic birds' within India, is not bound to comply with the requirements of Section 11C to 11F of the Customs Act, 1962 regarding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reason to believe that the said goods are liable for confiscation. Admittedly, it is not the case of the petitioner that M/s. SRK Exotic Birds, Nagpur had imported any consignment of such species. Documents filed in support of the petition, in fact, would establish that M/s. SRK Exotic Birds, Nagpur is not only engaged in keeping and trading of such birds, but are also into breeding of them irrespective of the fact that origin of such birds is not actually traced in India. As such, we do not find any manner whatsoever in which exotic species in possession of any such person can be ascertained as smuggled into India or locally bred in-captivity in the absence of any statutory ban imposed upon such in-captive breeding. (emphasis supplied) In that view of the matter, we do not find any reason to issue any directions to initiate action as prayed for under the provisions of the Customs Act 1962 on any domestic keeper of the exotic species, as issuance of any such directions would be contrary to law, as it stands on today. However, we note that, if violation of any of the provisions of the Prevention of Cruelty to Animals Act, 1960 is found, in that event, appropriat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Section 11(B) of the Customs Act, 1962. Thus, a person in possession of exotic live species is not required to comply with Section 11 (C) to Section 11(F) of the Customs Act, 1962 regarding intimation of the place of storage, precautions to be taken in acquiring and maintaining the accounts or sale thereof. Further, in absence of the term exotic live species being covered under Section 123 of the Customs Act, 1962. . 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 cannot be ruled out. However, we a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchased the exotic birds/ animals in domestic area within India, which has been corroborated by the two suppliers based at Indore namely Golu and Monu who are also the co-noticees. Further, there is no evidence on record that the said Golu and Monu have smuggled the exotic birds/animals in India. Further, I find that the Revenue has failed to establish the allegation of smuggling with any cogent evidence, either by the appellant or the other two co-noticees. The burden of proof lies on Revenue to support its allegation of smuggling. 6. Further, the Hon ble Allahabad High Court in the case of Dinesh Chandra (supra) have held that CITES do not govern the domestic trade, possession or breeding by any person including aviaries, but only international trade. It was further observed that internal trade i.e. domestic trade within India, of exotic species is not found in any schedule of the Wildlife (Protection) Act, 1972 and was never prohibited. Only external trade i.e. international trade is governed by the conditions of Foreign Trade Policy. The Hon ble Allahabad High Court further held that domestic trade in exotic birds/ animals is not prohibited and substantial export of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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