TMI Blog2020 (10) TMI 1329X X X X Extracts X X X X X X X X Extracts X X X X ..... the declared stock of exotic species, which will enable the Government to have a unified information system for the stock of exotic species at the State or Central Government level. The window of six months for voluntary disclosure by allowing immunities only to those declarers who opt to file their voluntary disclosure declaration within six months from the date of issuance of the 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 hereinabove for the declarers is not further clarified in the said Advisory. The petitioner is seeking directions so far as immunity is concerned, under the Voluntary Disclosure Scheme that there shall be no investigation into the acquisition or possession of exotic species once the declarer voluntarily discloses as per the Scheme - 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 exotic animals/birds which ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hekhar Rao, Mr. Kshitij Maheshwari Mr. Karthik Sundar, Advocates For the Respondent : Mr. Rajesh Gogna, CGSC with Mr.Akshya, Mr. Karan Chhibber Mr. Vedansh Anand, Advocates JUDGMENT D.N.PATEL, Chief Justice (Oral) Proceedings in the matter have been conducted through video conferencing. 1. This public interest litigation has been preferred with the following prayers:- (a) Issue an appropriate writ, order or direction, in the nature of mandamus, directing the Respondent to include other vulnerable exotic animals/birds species in the definition of exotic live species in Part I (a) of the Advisory for dealing with import of exotic live species in India and declaration of stock dated 11th June 2020; (b) Direct the Respondent to clarify the nature and extent of immunity contemplated by the Advisory as also whether it would cover other vulnerable exotic live species which are not mentioned in the Appendices to the CITES; (c) Pass any other or further order/s as this Hon‟ble Court may deem fit and proper. 2. Petitioner No.1 is an establishment involved in maintenance of rescue shelters for animals of Indian origin as well as exotic species. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted by the learned counsel for the respondent that so far as inclusion of other vulnerable exotic animals and birds species are concerned, it is implementing the provisions of the International Convention CITES. It is submitted by the learned counsel for respondent that at present the scope of the Advisory issued is limited to the species included in Appendices I, II and III of the CITES. It is further submitted by the learned counsel for respondent that the suggestion of the petitioners to enlarge the scope of the Advisory to all exotic live species which are listed in Wild Life (Protection) Act, 1972 is acknowledged. The relevant part of para 8AA to 9E reads as under: 8AA to 9E: In response to the corresponding Para of this Petition, it is submitted that the scope of the Advisory is presently limited to only such species listed in Appendix I, II and III of CITES (excluding those listed in Wild Life (Protection) Act, 1972) considering India's commitment to the CITES Convention. It may be recalled that there is already a very high degree of protection to threatened species in the country that are notified in various schedules of Wild Life (Protection) Act, 1972. Howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and as such coverage of CITES with regard to threatened species that need additional efforts is already very comprehensive. Further, it is also reiterated that the intent of the Advisory on conservation is to build country-wide awareness and confidence to genuine wildlife enthusiasts and conservationists by providing that the declarer would not be required to produce any documentation in relation to the exotic live species if the same has been voluntarily declared within six months of the date of the Advisory. It will be abundantly clear from this scheme to all that once this six-month period is over there is certified stock information available to the wildlife authorities, and necessary follow-up action both with regard to welfare of the existing exotic wildlife stock as well as future strict monitoring of the CITES provisions will be in place. This will help wildlife conservation and development, and legal compliance of CITES, immensely. The suggestion of the Petitioner to enlarge the scope of the Advisory to all Exotic Live Species has already been responded to in previous paragraphs and shall be considered by the answering Respondent. (emphasis supplied) 9. Having heard t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ften by people. Many citizen of the country have kept CITES (Convention of International Trade in Endangered Species) enlisted exotic animal species in their possession but there is no unified information system available of such stock of species at the State/Central level. Ministry of Environment, Forest and Climate Change has decided to collect stock information from the holders of such species through voluntary disclosure in next six months. The registration will be done for the stock of animals, new progeny, as well as for import and exchange. This will help in better management of the species and guide the holders about proper veterinary care, housing and other aspects of well-being of the species. The database of exotic animals will also help in control and management of zoonotic diseases on which guidance would be available from time to time to ensure safety of animals and humans. The declarer would not be required to produce any documentation in relation to the exotic live species if the same has been declared within six months of the date of issue of the advisory. For any declaration made after 6 months, the declarer shall be required to comply with the documentation re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isclosure Scheme has been introduced by the Central Government which gives an option to all the citizens of India to voluntarily declare their stock of exotic species enumerated in Appendices I, II and III of the CITES International Convention, if at all they are in possession thereof, within six months from the date of issuance of Advisory i.e. w.e.f. 11th June, 2020 (Annexure P-2 collectively to the memo of this writ petition). As per the Scheme, the declarer will submit themselves to the provisions of the Scheme and thereafter maintain a statutory record as prescribed under the Scheme for any addition or reduction in the declared stock of exotic species, which will enable the Government to have a unified information system for the stock of exotic species at the State or Central Government level. 15. The window of six months for voluntary disclosure by allowing immunities only to those declarers who opt to file their voluntary disclosure declaration within six months from the date of issuance of the 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... settled need not 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 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 identical allegations i.e. of evasion of customs duty and violation of any notification issued under the said Act. xx xx xx xx 40. It is settled law, by a catena of decisions, that for establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. From his making failure to keep promise subsequently, such a culpable intention right at the beginning that is at the time when the promise was made cannot be presumed. It is seen from the records that the exemption certificate contained necessary conditions which were required to be complied with after importation of the machine. Since the GCS could not comply with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Finance (No. 2) Act of 1998. If a person against whom criminal proceedings were pending, relating to offence under Chapter IX or XVII IPC or who stood convicted under any of the provisions of those chapters, he would not have been eligible to seek benefit under the Scheme and after accepting that position and the due settlement, there was no occasion to initiate and continue the criminal proceedings, which could bring about the conviction of the same persons, in case prosecution ended successfully in favour of the State and against the appellants. If such a condition is provided that on a particular date a criminal proceeding should not be pending against a person nor should he have been convicted of an offence, as a condition precedent for a settlement, and on that basis a settlement is brought about, it does not mean that later on, one could turn around and get the declarant convicted for a criminal offence too, after settlement of the liability. More so, when in view of Section 90 sub-section (4) of the Scheme the declarant is obliged to withdraw an appeal or proceedings regarding tax liability pending before the High Court or the Supreme Court, which had also been done in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the investigating agency intends to investigate the same on apprehension that the exotic species declared by a person might be one smuggled into India. According to the petitioner, if the direction as sought is not granted, the same may lead to discriminated and arbitrariness. A declarant who is in domestic possession of any exotic animal. 9. An earlier PIL Civil No. 22903 of 2019 : Dinesh Chandra vs. Union of India and others, filed by the very same petitioner against the same respondents was dismissed vide a detailed judgment dated 30.08.2019. It is not in dispute that the said judgment attained finality and binds the parties, as the same has not been challenged by any of the parties. It was inter alia observed that :- 37. From the aforesaid, it is very clear that exotic birds/animals do not come under the purview of Wild Life Protection Act, 1972. There is no provision under the Wildlife (Protection) Act, 1972 to issue licence or permission for dealing in exotic birds. There are no Rules and Regulations and procedures for keeping, breeding, buying, selling and exhibiting such animals (exotic animals) within country which have been bred in India. No documents are specifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not notified under Section 11B. Similarly, mere 'acquisition', 'purchase', or 'possession' of the exotic animals or exotic birds within India, shall not invite any penal consequences under the Customs Act, 1962 or Wildlife (Protection) Act, 1972. 49. For all the reasons mentioned above, the present Public Interest Litigation petition is hereby dismissed without costs. (emphasis supplied) 10. The said judgment dated 30.08.2019 was much before the issuance of the subject Voluntary Disclosure Scheme, announced and published on 11.06.2020 by the Central Government through the Ministry of Environment, Forest and Climate Change. So far as any smuggling activities if noticed at the point of Import/Export, a Customs/DRI officer would continue to have 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, and 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 per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chasing him for subjecting him to any penal or confiscatory measures under any enactment in connection with such timely and voluntarily declared stock of exotic species would be highly unreasonable, arbitrary and illegal, being contrary to legitimate expectation. (emphasis supplied) 20. It is further submitted by the learned counsel for petitioner that, against the aforesaid judgment of the Hon ble Allahabad High Court, SLP(C) 11659/2020 was dismissed by the Hon ble Supreme Court vide order dated 13th October, 2020. 21. We are in full agreement with the aforesaid decision rendered by the Allahabad High Court, especially with the meaning of the immunity attached therein, to the effect that the declarer would not be required to produce any documentation in relation to the exotic live species if the same has been declared within six months from the date of issuance of the Advisory and no civil or criminal inquiry can be conducted by the respondent after the declarer has voluntarily disclosed the stock of live exotic species, especially about the ownership, possession, trade, transportation, breeding, act of keeping, buying, selling and exhibiting of the exotic species etc. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , IV and V, any export of a specimen taken in accordance with paragraph 4 of this Article shall only require a certificate from a Management Authority of the State of introduction to the effect that the specimen was taken in accordance with the provisions of the other treaty, convention or international agreement in question. 6. Nothing in the present Convention shall prejudice the codification and development of the law of the sea by the United Nations Conference on the Law of the Sea convened pursuant to Resolution 2750 C (XXV) of the General Assembly of the United Nations nor the present or future claims and legal views of any State concerning the law of the sea and the nature and extent of coastal and flag State jurisdiction. (emphasis supplied) 23. In view of the aforesaid Article XIV to be read with affidavit filed by the respondent No. 1, especially in para 8L and 8AA to 9A, it has been expressed by the respondent that suggestion of the petitioner to enlarge the scope of the Advisory to all exotic live species is acknowledged because there are still other vulnerable exotic live species which are not mentioned in the Appendices I, II and III to the International Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory changes. Stability and change are the two sides of the same law coin. In their pure form they are antagonistic poles; without stability the law becomes not a chart of conduct, but a game of chance: with only stability the law is as the still waters in which there is only stagnation and death. xx xx xx xx 62. That the appellants used to trade in ivory stands admitted. They, thus, would come within the purview of the definition of trader also is undisputable. The manner in which despite legal ban on trade a person may not take recourse to illegal trading is a matter which squarely falls within the purview of the legislative competence. It is now well settled that Parliament can not only enact a law for avoidance or evasion of commission of an illegal trade but also may make law to see that the law is not evaded by taking recourse to machination or camouflage. The loopholes, if any, in such matters can and should be plugged. Means affecting means principle as adumbrated in United States v. Darby [312 US 100 : 85 L Ed 609 (1941)] is an illustration on the point. Both substantial and procedural provisions can be made to make a law in furtherance of the object for which th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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