TaxTMI 
TaxTMI 
2019 (9) TMI 881
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....suitable amendments in the Wildlife (Protection) Act, 1972 as well as the Customs Act, 1962, to enable the officers of Respondent No.2 - the Directorate of Revenue Intelligence and the officers of Respondent No.3 - Wildlife Authority under CITES, to seize/ confiscate/ regulate/ restrict/ prohibit within India, the domestic trade, possession and breeding of exotic animals/ birds. (ii) Issue any appropriate writ, order or direction, directing the Wildlife Authorities and the Central Government to make urgent and serious efforts for collecting breeding data, trade data and census data of all exotic animals/birds kept in captivity within India in the residence, shops, aviaries, breeding farms etc. to ascertain the entire picture of the status of each exotic species, so that appropriate statutory amendments are carried out. (c) Pass such further Order(s) as this Hon'ble Court may deem fit and proper in the circumstances of the case." 3. The petitioner seeks to protect the world's wild fauna mainly exotic animals/birds and to protect and improve the natural environment including the wildlife. Article 48-A of the Constitution mandates that the State shall ende....
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....(331) ELT 193 (Mad.HC)] wherein said Clause 1 of Article XIV of CITES has been referred to show that CITES by itself does not prohibit the adoption of more stricter standards by any Member Country. Thus, there is no bar in preventing and penalizing the domestic trade, possession, captive breeding and transportation etc of all exotic animals/birds by enacting strict provisions for the same. The said judgment was also followed by Kerala High Court in Marine Fins vs Union of India [2018 (362) ELT 451 (Ker.HC)]. 7. The petitioner submits that India, being a party, which ratified the CITES on 20.7.1976, is obliged to take appropriate measures to enforce the provisions of CITES not only for International Trade, but shall also apply the same for any domestic trade and possession etc within India. According to him, appropriate Statutory Amendments are thus required to regulate and penalize the trade, possession and breeding activities concerning the exotic animals/birds specified in CITES or not, to give effect to the aforesaid Article VIII (1) of CITES. 8. As per report (Annual Report under CITES), huge numbers of exotic animals/birds have been officially imported into India, which ....
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....India from customs on regular basis, it is practically impossible to form a reasonable belief on the basis of any reliable cogent material that any exotic animals/bird when found in domestic area, had been imported clandestinely into India. The exotic animals/birds are not notified under Section 123 of the Customs Act, 1962. Thus, under the provisions of Customs Act, 1962, there is no burden on the person, who is in possession of exotic animals/birds at any place within India other than Customs Area, to prove his lawful acquisition or lawful importation into India. Further, the exotic animals/birds do not attract provisions of Chapter IVA - Detection of illegally imported goods and prevention of disposal thereof, containing Sections 11A to 11G, inserted in Customs Act, 1962 with effect from 03.01.1969. They are not notified under Section 11B, so as to bind the person in possession of exotic animals/birds 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 acquisition, maintaining accounts or sale thereof. 11. She submitted that the possession, breeding and domestic trade of exotic animals....
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....of any statutory restriction, the 'possession', 'captive breeding', and 'domestic trade' of exotic animals/birds has continued in India since several decades. Learned counsel for the petitioner submits that the preservation of wildlife in its natural habitat is very important to maintain the ecological balance in the environment and sustaining the ecological chain and disturbing it may cause serious unfathomable repercussions. 15. To throw light on the scope and purport of CITES, the petitioner has placed on record information provided by the 'American Federation of Aviculture, Inc", (Annexure - P9 to the writ petition) which is granted official NGO status by the United States Fish and Wildlife Service (USFWS), and monitors or participates in the CITES meetings, CITES animal's committee meetings and/or assists the USFWS. The petitioner relies upon the following extracts from the information on CITES provided by the said 'American Federation of Aviculture, Inc" to seek a direction to the Wildlife Authorities and the Central Government to make urgent and serious efforts for collecting breedings data, trade data and census data of all exotic a....
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....ments to enable the DRI and other Customs Authorities to legally seize and confiscate non-notified exotic animals/exotic birds in any area elsewhere than the entry/exit points of Customs Barriers. 17. Learned Counsel for the respondents opposed grant of any relief in the instant petition and submitted that no direction can be issued to the Central Government to amend the concerned Statutes. The petitioner cannot seek directions to the respondents to act contrary to what is stipulated in the respective Statutes, and instructions issued thereunder and prayed for dismissal of writ petition. 18. We have carefully perused the entire material annexed with the petition and considering the submissions of the parties. 19. "CITES Annual Report 2015" (Annexure - P10 to the writ petition) issued by the Government of India, Ministry of Environment, Forest and Climate change, in Chapter 1 thereof, contains the 'Legal Framework. It inter alia provides as under:- "1. POLICY AND LAWS CONCERNING CITES IN INDIA International trade in all wild fauna and flora in general, and the specifies covered under CITES in particular, is regulated jointly through the provisions o....
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....istance in controlling illegal trade in wildlife." 20. The extract of the above Para 3.2.2. clearly shows that at the point of Import/Export enforcement of CITES provisions is carried out by the Customs officials/DRI and WCCB through the Customs Act, 1962 and by the State/UTs Wildlife Departments headed by Chief Wildlife Wardens under the Wildlife (Protection) Act, 1972. 21. Chapter II of the said Annual Report contains relevant extracts from the Foreign Trade Policy (2009 - 2014). Chapter III contains relevant extracts from ITC (HS) Classification of Export and Import items. Chapter IV contains data of Import and Export of CITES Listed Species. Annexure IIA contains the 'List of Contracting Parties to CITES' with corresponding dates of Accession, Acceptance, Approval, Continuation, Succession or Ratification, as the case may be. India is at Sl. No.25 and the date of 'ratification' is 20.07.1976. The order of entry into force is 18.10.1976. 22. Import of all live animals and birds is subject to Policy conditions of Chapter 1 "Life Animals' in Section 1, of the ITC (HS), 2017 - Schedule - I, Import Policy, of the Foreign Trade Policy 2015- 2020. The Poli....
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.... the birds to be exported are from Captive Bred Stock. Export if allowed shall be subject to pre-shipment inspection & CITES certificate. Export of all other exotic birds is prohibited. 27. Thus, at the point of Import/Export, a Customs/DRI officer is obliged and has jurisdiction, to detect and prevent smuggling of live animals and birds into or out of India, so that the smugglers of exotic birds and animals can be penalized for 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 and the concerned persons can be subjected to penal and confiscatory provisions in accordance with the provisions of the Customs Act, 1962. Regional Deputy Directors, Wildlife Crime Control Bureau is obliged to assist in the same. 28. Vide instructions dated 07.10.2014, issued from File No.2- 9/2014/WL, the Government of India, Ministry of Environment, Forest & Climate Change (Wildlife Division) has directed all States/UTs and Chief Wildlife Warden to take immediate custody of live animals/birds whenever they are sought....
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....or & Asstt. Management Authority Under CITES" 32. Questions and Answers dated 22.05.1990 (Annexure - P14 to the writ petition) in Rajya Sabha Debates, show the following response to question no.296:- (i) Internal trade in all species listed in Schedule 1 and Part II of Schedule of the Wildlife (Protection) Act, 1972 only is prohibited under Section 49 B of the Act. (ii) External trade in wild animals and their derivatives for import and export is governed by the Import and Export Policy (1990-93). Relevant extracts of the Policy are given in the statement below." 33. Thus, "Internal Trade" i.e., domestic trade within India, of 'exotic species' not in any Schedule of the Wildlife (Protection) Act, 1972 was never prohibited. Only 'External Trade' i.e., International Trade is governed by the conditions of Foreign Trade Policy. 34. Answers to Questions raised in Lok Sabha (Annexure - P13 to the writ petition), as recorded in the Lok Sabha debates dated June 8, 1998 reveal as under-- "WRITTEN ANSWERS TO QUESTIONS - LOKSABHA DEBATES DATED JUNE 8, 1998 Trade of Wild Birds 176 SHRI PRABHUNATH SINGH SHRI MOHAN RAWAL....
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....n wildlife and wildlife products. (iii) Training programmes on enforcement and implementation of wildlife and other related laws and international conventions have been organised for various enforcement agencies. (iv) Raids are carried out by the wildlife authorities, in cooperation with other enforcement agencies, whenever information of illegal trading in wildlife is received. (v) India is a signatory to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) under which international trade in endangered species and their parts and derivatives is strictly regulated; (vi) Rewards are given to informers for gathering intelligence regarding illegal trade and smuggling of wildlife products. (vii) Regional and Sub-regional offices of Wildlife Preservation have been set-up mainly at the major export centres of the country to prevent illegal trade and smuggling of wildlife products." 35. Similarly, Questions and Answers dated 04.09.2012 in Rajya Sabha (Annexure - P15 to the writ petition) under the heading "Export of exotic birds" shows the details of export from India of "exotic birds" during 2009 to 20....
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....ve, provided these authorities do not transgress their constitutional limits or statutory power". So observed the Supreme Court in Ashif Hamid v. State of J &K [1989] 3 SCR 19 Judicial enquiry is confined to whether the decision taken by the Government is against any statutory provisions, or whether it violates the fundamental rights of the citizens, or whether it is opposed to the constitutional provisions - cautions the Supreme Court in State of Orissa v. Gopinath Dash - AIR 2006 SC 661. Even if the Government's decision does not appear to be aggreable to the Court, it cannot interfere. 58. In Parisons Agrotech (P) Ltd. v. Union of India - (2015) 9 SCC 657 = 2015 (323) E.L.T. 3 (S.C.), the Supreme Court has held that once the court finds that there is sufficient material for the Government to take a particular policy decision, even by bringing Article 14 of the Constitution inito play, courts cannot judicially review and determine the correctness of the policy decision. Backed by cogent material, if the authorities demonstrate that the decision is not arbitrary or irrational, but is taken in public interest, the Court must respect the Executive's decision." 40....
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.... Existence of 'reasonable belief' that the concerned goods would be liable to confiscation, is a sine qua non for any valid seizure under Section 110. Any confiscation would be governed by the principles governing onus of proof in town seizures. Thus, confiscation or town seizure would not be authorized by law, when it would be merely on suspicion that an exotic bird in possession of a person within India may have been smuggled into India, on the basis such as - that person is not an importer, or is not having any proof of any valid importation under a License/ CITES permit or proof of duty payment or any reliable purchase voucher or proof of any other legal acquisition or on the strength of oral statements of any other co-accused. In such situation, mere 'acquisition', 'purchase', or 'possession" of the exotic animals or exotic birds, shall not invite penal consequences under the Customs Act, 1962. If at the entry/exit point, some consignment of import/export of exotic animals/birds is intercepted, upon establishing violation of the statutory provisions or CITES, the same would be liable for confiscation. 45. The direction is being sought by the p....