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TMI Blog2022 (9) TMI 1174X X X X Extracts X X X X X X X X Extracts X X X X ..... rosecuted for violation under the Customs Act by Department of Revenue Intelligence and under the Wild Life (Protection) Act, 1972. 3. Petitioner relies upon news articles (Annexure - 1 & 2) to demonstrate that there is proliferation of trade in exotic wildlife species in the State. 4. Petitioner submits that Birds and Animals can be categorized under following heads via a) Indigenous/ local or Indian animal species and b) Exotic/ Foreign or non-Indian animal species. Petitioner further submits that there is no provision/ prohibition under the Wild Life (Protection) Act, 1972 qua the second category. Petitioner further submits that Respondent No. 1 issued an Advisory dated 11.06.2020 for dealing with import of exotic live species in India and declaration of stock within six months of the issuance of the Advisory. 5. Petitioner in his written submissions further contends that - "3. Significantly, if a person who has availed the Advisory and made Voluntary disclosure is treated at par with a person who has not made declaration during the time period contemplated in the advisory; the legislative intent behind issuing advisory i.e., to grant immunity to a person making voluntary d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c species and to take stern action against the persons who are concerned with possession, transportation, dealing, breeding etc of exotic species, the directions as sought would be in public interest. 6. Only then persons in possession of such animals would be accountable under the said two Acts. Thus, this Hon'ble Court under the Writ Jurisdiction in public interest shall forthwith direct the Respondents to bring out appropriate legislative amendments to include exotic species in Schedule II of the Wile Life (Protection) Act, 1972 and to amend the Notifications issued under Sections 11B, 123 and 135(1)(i)(c) of the Customs Act, 1962 so that the owner of exotic species who have not made disclosure during the Advisory can be forthwith arrested and prosecuted under The Wild Life Act, 1972 as well as The Customs Act 1962 and exotic species can be confiscated by the Respondents." 6. We have examined the Advisory which is essentially concerning 4 issues: a. Developing an inventory of exotic live species in India through Voluntary Disclosure Scheme to streamline CITES compliance. b. Procedure for import of exotic live species. c. Registration/ Declaration of progenies of the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 intimation of place of storage, precautions to be taken in acquiring, maintaining accounts or sale, as they are not notified under Section 11B. Similarly, mere 'acquisition', 'purch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e noted that a Special Leave Petition, being SLP (C) No. 11659 of 2020, was filed against the abovementioned judgment of the Allahabad High Court which came to be dismissed by this Court vide order dated 13.10.2020. 4. The above judgment of the Allahabad High Court is a complete answer to the present PIL filed by the petitioner. Any interpretation to the contrary as suggested by the petitioner would defeat the very object of the Advisory. Once a declaration within the window of six months as provided under the Advisory is made, the exotic live species, including its progeny, the declarant or transferee(s) are fully exempt from explaining the source of exotic live species. The exotic live species which is declared or its progeny, are not liable to confiscation or seizure by any Central Agency or State Agency. Consequently, the declarant or the transferee(s) of such declarant will be immune from prosecution under any civil, fiscal and criminal statute by any Central or State Agency. Any other interpretation would lead to absurdity. 5. However, any declaration made after the expiry of the window under the Advisory shall carry no such exemption and the declarer shall have to comply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssession, transportation and breeding of undeclared exotic animals/ exotic birds within India continues to be out of the purview of Wildlife (Protection) Act, 1972. (ii) There is no reverse burden to prove licit importation into India, because such undeclared exotic species are not included in Notifications issued under Section 123 of the Customs Act, 1962. (iii) The undeclared 'exotic animals/ birds' continue to be out of purview of 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 undeclared 'exotic animals/ Birds would continue to be not bound to comply with requirements of Section 11C to 11F of the Customs Act, 1962 regarding intimation of place of storage, precautions to be taken in acquiring, maintaining accounts or sale thereof. (iv) The offence concerning exotic live species under Customs Act, 1962 continues to be 'bailable' under Section 104(7) of the said Act, in absence of any notification under Section 135(1)(i)(c) of Customs Act, 1962 notifying exotic animals/ birds as "prohibited goods" (as issued in cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gested or even to suggest the Respondents to legislate such amendments, would lead to chaos and no public purpose will be achieved. Even otherwise in light of the judgments discussed above the Court cannot direct the Central Government and the Central Board of Indirect Taxes to forthwith make amendments against legislative will to include all exotic species in the Wild Life (Protection) Act, 1972 and also in the Notifications issued under Section 11B, 123 and 135 of the Customs Act, 1962. Court can neither direct seizure/ confiscation contrary to existing provisions, nor can direct change I classification of such bailable offence to non-bailable offence, to enable arrest and prosecution of all the persons concerned with such undeclared stock of exotic animals / exotic birds. 16. We are unable to agree with the submission of the petitioner that, failure to arrest/prosecute such person who did/could not make declaration within the time stipulated in advisory would frustrate the purpose of the Advisory. Unless a person is caught smuggling exotic species on the international borders, no presumption can be drawn that domestic keeper have illegally imported the exotic species on the gro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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