TMI Blog2022 (9) TMI 1174X X X X Extracts X X X X X X X X Extracts X X X X ..... the statutory provisions in this regard to the period pre or post advisory - The judgment of Bombay High Court in the matter of Anil Naidu Versus UOI [ 2019 (12) TMI 72 - BOMBAY HIGH COURT ] as well as the judgment passed by the Allahabad High Court in the matter of Dinesh Chandra Versus UOI [ 2019 (9) TMI 881 - ALLAHABAD HIGH COURT ], which clarify the position in regard to the inapplicability of the penal provisions of Wild Life Act, 1972 and the Customs Act 1962 in regard to exotic species continue to apply as per extant laws and regulations despite advisory dated 11.06.2020. Despite the above settled legal position continuing even for the undeclared stock of exotic species, court can neither legislate, nor direct Government to legislate in a particular manner. The Court cannot direct the Central Government 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 in classification of such bailable offence to n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 disclosure within stipulated time stands defeated and the Advisory serves no purpose. By not carrying out amendments in the two Acts granting immunity from prosecution and forfeiture to a person who has not made voluntary disclosure under the Advisory issued by Respondent No. 1 and thereby treating him at par with a compliant citizen would be violative of Article 14 of Constitution of India. 4. The protection to the person found with exotic species as noticed in the judgments of in the matter of Anil Naidu Versus UOI (Writ Pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n) 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 imported exotic live species, d. The processes under this Advisory shall be dealt online through the Parivesh Portal. 7. Significantly, the Hon ble Allahabad High Court in the case of Dinesh Chandra versus UOI (PIL CIV 12032 of 2020) had considered pre and post Advisory period and held as under: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce 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 , 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. 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 thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 with all requisite documentation under the extant laws and regulations. 9. The same Advisory has also been the subject matter of challenge before various other High Courts. However, it has been upheld at all junctures. Reference may be made to the judgment of the Delhi High Court dated 23.10.2020 rendered in Khodiyar Animal Welfare Trust Anr. Vs. Ministry of Environment [Writ Petition (Civil) No. 6372 of 2020]; judgment of the Rajasthan High Court dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urview 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 case of Fake Indian Currency), and bail continues to be statutory as well as fundamental right. 14. Despite the above settled legal position continuing even for the undeclared stock of exotic species, court can neither legislate, nor direct Government to legislate in a particular manner. The Court cannot direct the Central Government to forthwith make amendments against legislative will to include all exotic species in the W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions 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 ground that such person has not declared ownership of exotic species within the stipulated time, or has acquired such species after the stipulated time, for any arrest/prosecution/confiscation based on presumption would be unreasonable and violation of rights guaranteed under Article 14 and 21 of Constitution of India. 17. This puts all the key issues raised by petitioner to rest in the negative. With above observation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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