9911796707
TMI Blog2022 (5) TMI 1053X X X X Extracts X X X X X X X X Extracts X X X X ..... iod of one month from date, mandatorily and positively. The Wild Life Warden shall ensure that the process of registration and acceptance thereof, under the aforesaid Advisory, is completed in acceptance or otherwise, of the birds registered by the petitioner, preferably within a period of three months from the date of communication of a copy of this order. The petitioner shall not be permitted to trade in the said birds until clearance by the Wildlife Warden. Let a copy of this order be served by the Registry on the Chief Wildlife Warden of the State of West Bengal. With the aforesaid direction, the instant writ petition shall stand disposed of." The appellant has filed a writ petition for quashing in connection with the Seizure Case No. 39/IMP/CL/Macaw/CUS/BCD/DPU/2021-2022 dt. 21.12.2021 wherein the Superintendent of Customs, Barasat Customs Division (DPU) had seized one number of Live Exotic Bird Macaw from the appellant on 24.12.2021 at 19.30 hours at Air Cargo Complex (Domestic) N.S.C.B.I. Airport, Dum Dum, Kolkata. After the seizure of the said Live Exotic Bird Macaw, the respondent no. 3 had issued summon to the appellant under Section 108 of the Customs Act, 1962 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmits that one person namely Sibi S. Thomas had contacted the appellant had proposed to purchase one Green Wing Macaw from the appellant and for the said purpose, the concern Exotic Bird needed to be transferred and accordingly, as per the guidelines of MOEFCC, the appellant had declared the particular of such transfer at the Parivesh Portal vide proposal dt. 20.12.2021. Accordingly, the petitioner had made necessary arrangements for transport the Green Wing Macaw bird through Air Cargo of Air India from N.S.C.B.I. Airport, Kolkata to Madras International Airport, Chennai and for the said purpose the appellant had packed the cage in a proper form and booked a slot with Air India for transportation of the cage containing the bird from Kolkata to Chennai. The Counsel for the appellant further submits that on 24.12.2021 at about 14:30 hours, the petitioner was informed that the Customs Officers have taken possession of the cage and accordingly, the petitioner went to the office of the respondents wherein the said bird was seized and subsequently, it was released on provisional basis. The Counsel for the appellant submits that Clause III (3) of the advisory did not indicate any stip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant to produce the financial record like bank statements, income tax returns and balance sheets which are totally against the scope of the objects of the advisories and various judgments passed by the Hon'ble Supreme Court and various High Courts. The Counsel for the appellant relied upon the judgment reported in (2003) 5 SCC 257, judgment passed by the Delhi High Court in the case of Khodiyar Animal Welfare Trust & Anr. -Versus- Ministry of Environment Forest and Climate change dt. 23.10.2020, order passed by the Meghalaya High Court in the case of Ms. J.S. Wahalang vs. Union of India & Ors., dt. 28.10.2021, the order passed by the Hon'ble Allahabad High Court in the case of Dinesh Chandra Vs. Union of India & Ors., dt. 30.07.2022 and submitted that it is well established principle of law that the matter which has been adjudicated and settled need not to be dragged into the criminal courts unless and until the act of the appellant could have been described as culpable. Per contra, the Ld. Counsel for the respondents no. 2 and 3 submits that the respondent no. 3 has got an information that the appellant was transporting the exotic birds without any permission and without any pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of one male Green Wing Macaw from Kolkata to Thiruvananthapuram, Kerala in the name of Sibi S. Thomas and the date of transfer was mentioned as on 20.12.2021. Admittedly the appellant was transporting the Exotic Bird (Green Wing Macaw) from Kolkata to Madras International Airport Meenambakkam Chennai and during transportation, the respondent no. 3, the Inspector of Customs had seized the said bird under section 110 of the Customs Act, 1962 and subsequent the respondent no. 3 had issued summons under Section 108 of the Customs Act, 1962 to the appellant to appear before the respondent no. 2 for inquiry. The appellant had appeared before the respondent no. 3 and on the prayer of the appellant the respondent had released the said bird in favor of the appellant provisionally subject to furnishing bond with certain conditions. As per the advisory issued by the Government of India, Ministry of Environment and Climate Change (Wild Life Division) the appellant had declared the stock of Exotic Live Species i.e. two (2) Male and two (2) Female Green Wing Macaw on 15.11.2020 through Portal i.e. within 6 months from the date of issuance of advisory. The "Voluntary Disclosure Scheme" is i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the State/Central level. This would also enable the Central Government to introduce further provisions regulatory as well as penal, after giving this window of six months for voluntary disclosure by allowing immunities only to those, who opt to file their voluntary disclosure declaration within six months window. Immunity is not provided to the declarant opting to disclose the stock after this limited window of six months. It in inter alia provided in Part I of the Scheme that :- "(b). It is stated through this advisory that the declarer would not to produce any documentation in relation to exotics live species if the same has been declared within six months of the date of issue of the advisory. For any declaration made after six months of the date of issue of advisory, the declarer shall be required to comply with the documentation requirement under the extant laws and regulations." The judgment referred by the counsel for the appellant passed by the Division Bench of Hon'ble High Court at Allahabad in the case of (Dinesh Chandra -versus- Union of India & Ors.) dt. 30.07.2020 wherein the Hon'ble Court had referred the order passed in PIL Civil No. 22903 of 2019 (Dinesh Chandr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exotic species once the declarer voluntarily discloses as per the Scheme. As per petitioners, once the declaration is made within a period of six months, the declarer should not be subject to any civil or criminal inquiry under any other law for the time being in force, especially about the ownership, possession, trade, transportation, breeding, act of keeping, buying, selling and exhibiting such exotic animals. 16. We are in full agreement with the arguments canvassed by the petitioner. Once the immunity is granted under the Voluntary Disclosure Scheme, the respondent cannot investigate about the ownership, possession, trade, transportation, breeding, act of keeping, buying, selling and exhibiting such exotics animals/birds which are voluntarily disclosed by the declarer. The declarer would not be required to produce any documentation in relation to exotics live species if the same has been declared within six months from the date of issuance of Advisory as per Part I Clause (b) of the Voluntary Disclosure Scheme. After six months' period is over, from the date of issuance of the Advisory the declarer shall be required to comply with the documentation requirement under the extan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies would be contrary to the provisions of Customs Act,1962 or even Wild Life Act. Hence no such directions to seize exotic species found within or being transported through the State of Meghalaya can be issued. There is no prohibition, restriction or regulation to sale purchase, possession or breeding of exotic species within India under the provisions of Customs Act,1962 and no such direction be issued." The judgment referred by the appellant reported (2003) 5 SCC 257 in the case of (Hira Lal Hari Lal Bhagwati -versus- CBI, New Delhi) held inter alia : "30. In our view, under the penal law, there is no concept of vicarious liability unless the said statute covers the same within its ambit. In the instant case, the said law which prevails in the field i.e. the Customs Act, 1962, the appellants have been there under wholly discharged and the GCS granted immunity from prosecution. It is well established principle of law that the matter which has been adjudicated and settled need not to be dragged into the criminal courts unless and until the act of the appellants could have been described as culpable. The true fact and import of Kar Vivad Samadhan Scheme 1998, in our view, is th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
