Tripura High Court: In a public interest litigation seeking issuance of show cause to the respondents as to why a writ of Mandamus shall not be issued, declaring the possession of all exotic animals/ birds illegal and the person in possession of them be forthwith prosecuted for violation under the Customs Act by the Department of Revenue Intelligence and under the Wildlife (Protection) Act, 1972(‘Wildlife Act’), Indrajit Mahanty, CJ. and S.G. Chattopadhyay, J. has observed that despite the settled legal position, the Court cannot direct the Central Government to forthwith make amendments against legislative will to include all exotic species in the Wildlife Act, 1972 and in the Notifications issued under Section 11-B, 123 and 135 of the Customs Act, 1962. Further, it can neither direct seizure/ confiscation contrary to existing provisions, nor can direct change in 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 / birds.
The Court noted that the respondent has 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 said advisory.
The Court cited the decision in Dinesh Chandra Sharma v. Union of India, (PIL CIV 12032 of 2020), wherein the Court has considered pre and post advisory period and observed that “exotic birds/ animals do not come under the purview of Wildlife (Protection) Act, 1972 and there is no provision under the Wildlife Act to issue licence or permission for dealing in exotic birds”. Further, it also referred to the ruling in Swetab Kumar v. Ministry of Environment, Forest & Climate Change and Others (Writ Petition (Civil) No. 540 of 2022), wherein the Court approved Dinesh Chandra (supra) and held that “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”. It was also observed that the same advisory has also been the subject matter of challenge before various other High Courts. However, it has been upheld at all junctures.
The Court observed that the advisory is an executive direction to maintain inventory of exotic species and regulate the import of such species and the exemption that is provided in the advisory is limited to dispensation with explanation of source of exotic species. Further, the consequence of non-declaration within the time stipulated in the advisory is that the owner of exotic species is required to comply with all requisite documentation under the extant laws and regulations.
Moreover, the Court viewed that there is no change in the statutory provisions regarding the pre or post advisory period and cited the judgment of Anil Naidu v. UOI (Writ Petition No. 807 of 2019) as well as the judgment of Dinesh Chandra (supra), wherein it was clarified that the position regarding the inapplicability of the penal provisions of Wildlife Act, 1972 and the Customs Act 1962 regarding exotic species continue to apply as per extant laws and regulations despite advisory dated 11.06.2020.
The Court observed that it is settled as per the extant laws and regulations that:
(i) Domestic trade, possession, transportation and breeding of undeclared exotic animals/ exotic birds within India continues to be out of the purview of Wildlife 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.
(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 11-C to 11-F of the Customs Act 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 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” and bail continues to be statutory as well as fundamental right.
The Court viewed that it can neither direct, nor expect the Government to take such drastic steps in haste, without assessment of impact and without detailed study, as such amendments in statutory provisions may result in drastic penal action against common man. Further, there are sufficient safeguards available in law to prevent cruelty to animals which are also applicable to exotic species and directing amendments in the Acts would lead to chaos and no public purpose will be achieved.
Thus, the Court observed that 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, as it would be unreasonable and violation of rights guaranteed under Article 14 and 21 of Constitution of India.
[Adwitiya Chakrabarti v. Union of India, 2022 SCC OnLine Tri 633, decided on 21.09.2022]
Advocates who appeared in this case:
Manoj Kumar Biswas, Advocate, for the Petitioner;
Government Counsel Mr. Biswanath Majumder, Advocate, for the Respondent.
