TMI Blog2022 (5) TMI 1053X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3 is bad in law and illegal. It certainly amounts to abuse of the process of law. Appeal allowed - decided in favor of appellant. - MAT 684 of 2022 With CAN 1 of 2022 And CAN 2 of 2022 - - - Dated:- 19-5-2022 - HON BLE JUSTICE PRAKASH SHRIVASTAVA, CHIEF JUSTICE HON BLE JUSTICE KRISHNA RAO, JUDGE Present:- Mr. R. Senthil Kumar Mr. Abhinav Rakshit ... for the appellant Ms. Manasi Mukherjee ... for the Respondent Nos. 2 to 4 Krishna Rao, J: There is a delay of 13 days in filing this appeal. Hence, CAN 1 of 2022 has been filed by the appellant with a prayer to condone the delay. Having regard to the explanation which has been furnished in the application, we are of the opinion that the appellant was prevented from filing the appeal within time on account of bona fide reason. Hence, CAN 1 of 2022 is allowed and delay in filing the appeal is condoned. The appellant has preferred an appeal against the order passed by the Ld. Single Judge in WPA No. 1554 of 2022 dt. 16.03.2022 wherein the Ld. Single Judge had disposed of the writ petition by passing the following order:- Be that as it may, the Customs Authority shall complete investigation with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declare their stock of Exotic Live Species, if any, that lies in their possession with them, within six months from the concerned date in June, 2020 and further the last date for declaring has been extended till March, 2021. The said Scheme of the Central Government is made clear that who have made their voluntarily disclosure of Exotic Live Species were exempted from furnishing the purchased details of breeding details or the income source. The Counsel for the appellant submits that in accordance with the said Advisory cum Voluntarily Disclosure Scheme, the appellant had declared particulars of their stock of the Exotic Live Species stating that the appellant is in possession of two male and two female Green Wing Macaw, (scientific name Ara Chloroptera) on 15.11.2022. The Counsel for the appellant further submits that subsequently, three numbers of Green Wing Macaw were born at the appellant s farm on 02.06.2021 as a result of breeding between the exotic bird declared vide proposal no. WL/WB/SPECIESA/56844/2020 and thereafter the appellant had declared the relevant particulars of such newly born Green Wing Macaw at the Parivesh Portal vide Proposal dt. 26.06.2021. The C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at according to Clause I (e) and III (3) of the advisory, it is clear that the Chief Wildlife Warden after conducting physical verification, registered the stocks and maintain record in their office and issue an Online Certificate of possession within six months from the date of voluntary disclosure and further regarding Clause I (g) it is mandate for the declarer to make a disclosure regarding any acquisition/death/trade/change of possession after the declaration should be informed to the respective Chief Wildlife Warden within 30 days of such acquisition/death/trade and the Chief Wildlife Warden shall issue an acknowledgement to the regard. The Ld. Counsel for the appellant further submits that the appellant has complied with the provisions of advisory and had not committed any unlawful act. The Ld. Counsel further submits that the Customs Officer can interfere only in the matter of import and export of goods and that under Section 123 and Section 11 of the Customs Act, 1962, the Exotic Live Birds were not mentioned and included. The Ld. Counsel for the appellant further submits that the respondent authorities have erroneously issued show cause notice and trying to confi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of West Bengal and this order shall by itself to be treated as prohibition with public notice. The Counsel for the respondents relied upon the said judgment had submitted that the appellant was apprehended by transporting the live birds and thus the appellant is liable to be prosecuted in accordance with law. Considered the rival submissions of the parties, documents available on record and the judgment relied by the parties. The appellant is having the Certificate of Enlistment of the trade of selling of livestock (birds - live exotic birds). As per the Clause I (e) of the advisory issued by the MOEFCC, a period of six months from the date of the order is given for voluntary disclosure of those who are in possession of Exotic Live Species in the country. As per Clause III (3), the Chief Wildlife Warden shall after verification of the details issue an Ownership Certificate for such progenies of Exotic Live Species as per Annexure-V. The appellant had declared the stock of Exotic Live Species through the portal on 15.11.2020. The appellant has further informed about the birth of two male and one female of Green-Wing Macaw through the portal on 26.06.2021. The app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication of to DWLW for an NOC for import of Exotic Live Species; (iv) Annexure I- IV- Form for Application for Registration of Progeny of Previously held Exotic Live Species Stock, and (v) Annexure V- Ownership Certificate for Progeny of Exotic Species. It is clarified in Para I (a) of the Scheme that:- a. The phrases exotic live species used in this advisory shall be construed to mean only the animals named under the Appendices I, II and III of the Convention of International Trade in Endangered Species (CITES) of WILD Fauna and Flora for the purpose of this advisory and does not include species from the Schedule of the Wild Life (Protection) Act,1972. The Central Government by introducing the Voluntary Disclosure Scheme has given an option to all citizens to voluntarily declare their stock of exotic species under the Appendices I, II and III of CITES, if any with them, within six months from the concern date in June, 2020. The Scheme requires citizens to submit themselves to the provisions of the scheme and to thereafter maintain the statutory record as prescribed under the scheme for any addition or reduction in declared stock of exotic species. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cies within India, at least for a period of six months 1from the date of introduction of present voluntary disclosure scheme as the Clause (b) of Part I of this Voluntary disclosure scheme also provides that the declarer would not be required to produce any documentation in relation to the exotics live spices if the same has been declared within six months of the date of advisory. The judgment referred by the Counsel for the appellant in the case of Khodiyar Animal Welfare Trust Anr. versus- The Ministry of Environment and Climate Change Ors., dt. 23.10.2020 the Hon ble Division Bench of Delhi High Court held that:- 15. The window of six months for voluntary disclosure by allowing immunities only to those declarer who opt to file their voluntary disclosure declaration within six months from the date of issuance of Advisory. Immunity is not provided to the declarers opting to disclose the stock once the period of six months is over from the date of issuance of the Advisory. The immunity contained in Clause I (b) of the Advisory as stated herein above for the declarer is not further clarified in the said Advisory. The petitioner is seeking directions so far as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Customs Act which provides for detection of illegally imported goods and prevention of their disposal thereof compromising of section 11A to 11G are also inapplicable. Admittedly, the Central Government has not notified the exotics birds and animals in question under section 11B of the Customs Act. There are safeguards in place to detect the illegally smuggled goods at the point of entry and exit which are regulated under the Customs Act. Even the Foreign Trade Policy and the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES) aid in prevention of illegal smuggling of exotics species. It is also trite that not all exotic species are necessarily imported. On account of captive breeding, it is possible to find exotic birds and animals in India, outside their native origin. Thus, neither there is any statutory presumption exists to presume that all the exotic species in the domestic area are imported in India nor there is legal requirement which compels domestic keeper, breeder or transporter of such exotic species to produce any proof of valid importation or documents establishing his licit acquisition. As already held by the Allahabad High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cies of Birds) is not applicable in the instant case as in the said case the Division Bench of this Court directed the concern authorities including Custom Authorities to ensure the transportation of live birds and other small and big animals which are part of Wild Life but the Exotic Birds are neither notified under any Schedule of Wild Life Act nor under the Custom Act. The appellant, by virtue of the Advisory had declared the stock of Exotic Live Spices on 15.11.2020 i.e. within six months from the issuance of the Advisory and thus in view of the judgments referred above the seizure made by the respondent no. 3 on 24.12.2021 and subsequent summon issued to the appellant by the respondent no. 3 is bad in law and illegal. It certainly amounts to abuse of the process of law. In the result, we allow the appeal and the impugned order passed by the Learned Single Judge in WPA No. 1554 of 2022 dt. 16th March, 2022 is set aside and the proceeding initiated by the respondent no. 3 being Seizure Case No. 39/IMP/CL/Macaw/CUS/BCD/DPU/2021-22 dt. 24.12.2021 is also set aside and quashed. MAT No. 684 of 2022 with CAN 1 of 2022 with CAN 02 of 2022 is accordingly disposed of. - - TaxT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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