2025 (8) TMI 731 - HC - Customs

Magistrate's Order Set Aside for Seized Shark Fins; Return Ordered Under Conditions Despite Trade Evidence Gaps

The HC set aside the Magistrate's order dismissing the petition for return of seized shark fin properties. The petitioner failed to prove exclusive ... Smuggling of prohibited shark fins - petitioner has not produced any documents to show that they were trading only inside the State - offences punishable under Chapter I Section 2(11), 2(14), Chapter V 39(1) (a)(b)(d), Section 47, Chapter V-B, Section 49 D(m)(n), Section 49 (H-1), Section 49(I-1), Chapter VI 50 r/w Section 51(1) of Wild Life Protection Act, 1972 (2022 Amendment) - HELD THAT:- No doubt, the petitioner has produced the copies of the invoice and also the affidavit of the proposed purchaser Ghori Mohammed, who stated in his affidavit that the petitioner had paid the GST for the said purchases and the same has also been reflected in the petitioner's GSTIN portal as well as in his GSTIN portal. The learned Government Advocate (Criminal Side) has produced a letter sent by the officer of the Superintendent of Central Goods and Service Tax & Central Excise, Ramnad Range to the respondent dated 26.02.2025 stating that the tax payer has submitted that he has not received any invoice or any items mentioned in the invoices produced by the petitioner and that the registered premises of the petitioner's company were visited but the premises remain closed. The fact remains that Item Nos. 1 and 3 of the seized properties are not prohibited species. As already pointed out, those properties cannot be exported to the foreign country without prior permission of the competent authorities and as such, there is no total prohibition for export or import of the said species. In the case on hand, admittedly, the properties came to be seized near Ramanathapuram Railway Station. It is not the case of the prosecution that the said consignment was booked for any foreign country. Though the learned Government Advocate (Criminal Side) would submit that the petitioner has only been attempting to transport the seized properties to Sri Lanka, there is absolutely no materials to substantiate the said stand. In the case on hand, as already pointed out, it is not the case of the prosecution that the petitioner has been attempting to transport the goods to any foreign country. In the absence of any such material, this Court is at loss to understand as to how the prosecution has proceeding with the present case and is objecting the release of the goods - the objections raised by the prosecution are absolutely devoid of merits and the learned Magistrate, without considering the above aspects in proper perspective, has mechanically dismissed the petition. Consequently, this Court concludes that the impugned order is liable to be set aside and the petitioner is entitled to get return of the property. The impugned order dated 27.08.2024 passed in Crl.M.P.No.2881 of 2024 by the learned Judicial Magistrate No.1, Ramanathapuram, is hereby set aside and the properties in dispute are ordered to be returned to the petitioner on the fulfilment of conditions imposed - this Criminal Revision Case stands allowed. 1. ISSUES PRESENTED and CONSIDERED 1. Whether the seized shark fins fall under the category of prohibited species under the Wildlife Protection Act, 1972, and if so, whether possession and trade within Indian territory are prohibited. 2. Whether the petitioner has established ownership over the seized properties to entitle them to possession under Section 451 of the Code of Criminal Procedure. 3. Whether the learned Magistrate erred in dismissing the petition for return of property without considering the DNA test report and relevant statutory provisions. 4. Whether the seizure and retention of the shark fins pending investigation are justified in light of the nature of the species and the alleged offence. 5. Whether there is sufficient material to show that the petitioner intended or attempted to export the seized species to a foreign country without permission, thereby committing an offence under the Wildlife Protection Act. 6. The conditions under which the seized properties may be returned to the petitioner, balancing the interests of justice and prevention of illegal trade. 2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Classification of Seized Shark Fins under the Wildlife Protection Act, 1972 - Relevant legal framework and precedents: The Wildlife Protection Act, 1972, as amended in 2022, classifies species under various Schedules. Schedule II lists prohibited species, while Schedule IV includes species for which export/import requires prior permission but possession or trade within India is not prohibited. Sections 49-H and 49-I regulate international trade of species listed under Schedule IV. - Court's interpretation and reasoning: The Court noted the DNA test report from the Advanced Institute of Wildlife Conservation Laboratory, which identified the seized species as Scalloped Hammer Head and Sharpnose Guitarfish under Schedule IV, and Pigeye Shark not listed under any Schedule. The Court emphasized that Schedule IV species are not prohibited for possession or trade within Indian territory but require permission only for export/import. - Key evidence and findings: The laboratory report dated 06.02.2024 conclusively established the species classification. The prosecution did not produce evidence that the seized consignment was intended for foreign export. - Application of law to facts: Since the seized species fall under Schedule IV and not under the prohibited Schedule II, and there was no material evidence of export attempt, the possession and trade within the State are not offences under the Act. - Treatment of competing arguments: The prosecution argued that international trade requires certification and permits, but failed to prove any attempt or intention to export. The Court found the prosecution's assertion unsubstantiated. - Conclusion: The seized shark fins are not prohibited species for possession or trade within India, and no offence under the Act is made out on this ground. Issue 2: Establishment of Ownership and Entitlement to Possession under Section 451 Cr.P.C. - Relevant legal framework: Section 451 Cr.P.C. allows for the return of seized property to the owner unless it is required as evidence or for other lawful reasons. - Court's interpretation and reasoning: The petitioner produced invoices, GST returns, and an affidavit from a purchaser supporting ownership claims. Though the prosecution challenged the authenticity of invoices and questioned the petitioner's business premises, the Court noted that the GST returns filed by the petitioner were reflected in the GSTN portal and corroborated by the recipient's returns. - Key evidence and findings: Copies of invoices, GSTIN portal records, affidavit of purchaser, and letters from the Superintendent of Central Goods and Service Tax & Central Excise. No conclusive evidence disproved ownership. - Application of law to facts: Ownership was sufficiently established for the purpose of Section 451 Cr.P.C., entitling the petitioner to possession unless contrary lawful reasons exist. - Treatment of competing arguments: The prosecution's objections regarding invoice authenticity and premises closure were noted but not found sufficient to disprove ownership. - Conclusion: The petitioner demonstrated prima facie ownership and entitlement to possession of the seized shark fins. Issue 3: Validity of the Learned Magistrate's Order Dismissing the Petition - Relevant legal framework: The Magistrate's discretion under Section 451 Cr.P.C. must be exercised considering all material facts, including scientific reports and ownership claims. - Court's interpretation and reasoning: The Court found that the learned Magistrate dismissed the petition mechanically, without considering the DNA test report and the statutory provisions relating to Schedule IV species. The Magistrate also held that the petitioner failed to prove ownership and that co-accused was not impleaded, which the Court found to be an erroneous approach. - Key evidence and findings: The impugned order, the DNA report, ownership documents, and statutory provisions. - Application of law to facts: The Magistrate's failure to consider the DNA report and statutory framework led to an erroneous dismissal of the petition. - Treatment of competing arguments: The Court rejected the prosecution's reliance on non-impleadment of co-accused and lack of ownership proof as grounds for dismissal. - Conclusion: The impugned order is set aside for failure to consider relevant materials and legal principles. Issue 4: Justification for Seizure and Retention of the Shark Fins Pending Investigation - Relevant legal framework: Seizure and retention of property under the Cr.P.C. is justified to prevent tampering with evidence or illegal use, but must be balanced against rights of ownership and lawful possession. - Court's interpretation and reasoning: The Court acknowledged the prosecution's concern about tampering but found no material evidence that the petitioner intended to export the species illegally or tamper with evidence. The seized species are not prohibited for possession or trade within India, reducing the justification for retention. - Key evidence and findings: Lack of evidence of export intent, DNA report, statutory provisions. - Application of law to facts: Retention of property without sufficient grounds was not justified. - Treatment of competing arguments: The Court rejected the prosecution's argument that release at the initial stage would lead to tampering without supporting evidence. - Conclusion: The seizure and retention were not justified indefinitely, and the property should be returned subject to conditions. Issue 5: Evidence of Intent or Attempt to Export the Shark Fins Without Permission - Relevant legal framework: Criminal liability arises from intention, attempt, or commission of offence. Mere preparation is not punishable; attempt requires overt acts towards commission. - Court's interpretation and reasoning: The Court noted that the prosecution failed to produce evidence that the petitioner intended or attempted to export the seized species to a foreign country. The seized consignment was found near a railway station, with no proof of booking or shipment abroad. - Key evidence and findings: Absence of documents or material indicating export intent, no evidence of booking or consignment to foreign destination. - Application of law to facts: Without evidence of attempt or intention to export, criminal liability under the relevant provisions cannot be established. - Treatment of competing arguments: The prosecution's assertion of attempted export to Sri Lanka was unsubstantiated and rejected. - Conclusion: No criminal liability for illegal export was established. Issue 6: Conditions for Return of Seized Properties - Relevant legal framework: Return of seized property may be subject to conditions to ensure compliance with law and prevent misuse. - Court's interpretation and reasoning: The Court allowed return of the seized shark fins subject to conditions ensuring no illegal export and safeguarding the interests of the investigation and prosecution. - Key conditions imposed: Execution of a bond of Rs. 2,00,000/- with two sureties of like sum to the satisfaction of the Magistrate. Undertaking not to transport Item Nos.1 and 3 to any foreign country without prior permission of competent authorities. Undertaking to deposit the value of the properties if required by the Court at any stage. - Application of law to facts: These conditions balance the petitioner's right to possession with the State's interest in regulating trade and preventing illegal export. - Treatment of competing arguments: The Court found these conditions adequate to address prosecution concerns without unduly restricting the petitioner. - Conclusion: The seized properties are ordered to be returned subject to the above conditions.