2022 (9) TMI 1174 - HC - Indian Laws

Court dismisses challenge on possessing exotic animals without disclosure; emphasizes need for thorough assessment before legislative changes.

Smt. Adwitiya Chakrabarti, Versus Union of India, The Chief Wild Life Warden and Principal Chief Conservator of Forests (Wildlife), Director General of the Department of Revenue Intelligence, Chairman of the Custom and GST Board, New Delhi

The court dismissed the petition challenging the legality of possessing exotic animals/birds without voluntary disclosure, emphasizing that failure to ... Legality of possession of all exotic animals/ birds by persons (other than those who have made voluntary disclosure with the time contemplated in Advisory, dated 11.06.2020(Annexure -3), issued by Respondent No. 1 - whether the person in possession of such exotic animals/ birds be forthwith prosecuted for violation under the Customs Act by Department of Revenue Intelligence and under the Wild Life (Protection) Act, 1972? - HELD THAT:- The Advisory is an executive direction to maintain inventory of exotic species and regulate the import of such species. The exemption that is provided in the Advisory is limited to dispensation with explanation of source of exotic species. 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 regulation. There is no change in 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 non-bailable offence, to enable arrest and prosecution of all the persons concerned with such undeclared stock of exotic animals / exotic birds. There are sufficient safeguards available in law to prevent cruelty to animals which are also applicable to exotic species. Directing the amendments in the tow Acts as suggested or even to suggest the Respondents to legislate such amendments, would lead to chaos and no public purpose will be achieved - 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. Petition dismissed. Issues Involved:1. Legality of possession of exotic animals/birds without voluntary disclosure.2. Applicability of the Wild Life (Protection) Act, 1972, and the Customs Act, 1962, to exotic species.3. Legislative amendments to include exotic species under the Wild Life (Protection) Act, 1972, and the Customs Act, 1962.4. Validity and implications of the Advisory dated 11.06.2020.5. Jurisdiction and limitations of the court in directing legislative amendments.Issue-wise Detailed Analysis:1. Legality of possession of exotic animals/birds without voluntary disclosure:The petitioner argued that possession of exotic animals/birds without making a voluntary disclosure as per the Advisory dated 11.06.2020 should be deemed illegal, and such persons should be prosecuted under the Customs Act and the Wild Life (Protection) Act, 1972. The petitioner emphasized that treating compliant and non-compliant individuals equally would violate Article 14 of the Constitution of India. However, the court noted that the Advisory provides a window for voluntary disclosure, and failure to declare within this period does not automatically imply illegal possession. The court referred to previous judgments, including those of the Allahabad High Court and the Supreme Court, which upheld that exotic species are not covered under the Wild Life (Protection) Act, 1972, and thus, their possession does not attract penal consequences under the existing laws.2. Applicability of the Wild Life (Protection) Act, 1972, and the Customs Act, 1962, to exotic species:The court reiterated that exotic species are not included in the schedules of the Wild Life (Protection) Act, 1972, and there are no specific provisions under the Customs Act, 1962, that mandate documentation or penalize possession of such species within India. The court cited the Allahabad High Court's judgment, which clarified that domestic trade, possession, and breeding of exotic species do not fall under the purview of these Acts. The court also noted that the Bombay High Court had declared offenses related to exotic species under the Customs Act as bailable.3. Legislative amendments to include exotic species under the Wild Life (Protection) Act, 1972, and the Customs Act, 1962:The petitioner sought directions for legislative amendments to include exotic species in the Wild Life (Protection) Act, 1972, and the Customs Act, 1962. The court emphasized that it cannot direct the government to legislate in a particular manner or interfere with governmental policy decisions. The court highlighted the need for a detailed study and assessment of the impact of such amendments, considering the widespread ownership of exotic pets and the potential ramifications of drastic penal actions against common citizens.4. Validity and implications of the Advisory dated 11.06.2020:The court examined the Advisory, which aims to develop an inventory of exotic species through a voluntary disclosure scheme, streamline CITES compliance, and regulate the import and registration of exotic species. The court noted that the Advisory provides immunity from prosecution for those who declare their exotic species within the stipulated period. However, failure to declare within this period does not automatically lead to penal consequences. The court referred to the Supreme Court's approval of the Advisory, which upheld that the declarant or transferee of declared exotic species is exempt from explaining the source and is immune from prosecution under any civil, fiscal, or criminal statute.5. Jurisdiction and limitations of the court in directing legislative amendments:The court reiterated that it must be cautious not to encroach upon the domain reserved for the Executive and the Legislature. The court cannot direct the government to initiate legislation or amend existing laws. The court also noted that directing amendments to include exotic species in the Wild Life (Protection) Act, 1972, and the Customs Act, 1962, would lead to chaos and have far-reaching implications, including penal actions against common citizens who own exotic pets. The court emphasized that such drastic steps cannot be taken in haste without a detailed study and assessment of their impact.Conclusion:The court dismissed the petition, stating that the existing legal framework does not support the petitioner's demands. The court upheld the validity of the Advisory dated 11.06.2020 and emphasized that any legislative changes must be made by the government through a detailed and considered process. The court also highlighted the limitations of its jurisdiction in directing legislative amendments and interfering with governmental policy decisions.