TaxTMI 
TaxTMI 
2020 (10) TMI 646
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....tion 108 of the Customs Act, 1962 as ultra vires on the vice of Article 14 and 21 of the Constitution of India for being manifestly arbitrary or to read down, clarify or expound the scope of the said impugned Section 108 of the Customs Act, 1962, to save it from unconstitutionality; (b) To issue a writ of mandamus or in the nature of mandamus to the Respondent No.2 to issue suitable Circular/Instructions to enable the citizens in domestic possession of exotic species to make declaration under the voluntary disclosure scheme without any fear of actions under the customs Act, 1962; (c) To issue a writ of prohibition, or any other writ, order or direction, prohibiting the officers of the Respondent No.2 and 3 from summoning the petitioner under Section 108 of the Customs Act, 1962 for seeking any information relating to the acquisition of the exotic species in possession of the petitioner in respect of which the petitioner is contemplating filing of a declaration under the Voluntary Disclosure Scheme issued by the Central Government vide the Advisory (at Annexure-2); (d) To issue a writ of prohibition, or any other writ, order or direction, prohibiting the o....
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....he "exotic live species", if such information has been provided to the Government in terms of the declaration appended to such scheme i.e. within six months from the date of issue of advisory. It appears from the said scheme that once the declaration is made by the declarant, he/she would be obliged to maintain such records and would subject himself/herself to such reporting and licensing requirements under the scheme in terms of the procedure prescribed. Whereas Para (I) of the advisory deals with disclosure of "exotic live species" in India through Voluntary Disclosure Scheme, Para (II) of the advisory deals with import of exotic live species and stock maintenance. 5. Apart from issuing the aforesaid advisory, Standard Operating Procedure (SOP) has been made out, which is required to be followed by an applicant and it appears that online help desk, titled as "Parivesh Help Desk" has also been created by the Government to enable the Central Government to regulate and monitor the voluntary disclosure, and if such disclosure is not made voluntarily by a person in possession of exotic birds and animals, no immunity is contemplated for those who do not make the declaration within t....
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....n and only if such declaration is made, summons would be issued to him for any enquiry concerning the acquisition of the declared stock, he then could have sought for any statutory relief available under the law and/or invoke the writ jurisdiction. He further submitted that the apprehension advanced is without any foundation. 10. We have perused the records and carefully considered the submissions advanced by the parties. 11. We are of the view that writ jurisdiction under Article 226 of the Constitution of India can be exercised even to protect the apprehended violation of right or to enforce statutory duty. The advisory introduced by the Central Government is in public interest and for a limited period of six months. We do not find it just and expedient to consider the apprehension raised by the petitioner and deal with the issue raised on their own merits. 12. On the basis of the pleadings filed before this Court, following facts are not in dispute:- (a) The Government's advisory under Annexure-1 and Annexure-2 clearly shows that "exotic live species" are animals or plant species moved from their original range (location) to a new place. In other words, the....
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.... (f) The possession, breeding, transportation and domestic trade of the "exotic live species" within India appears to have grown in massive proportions without there being any effective control or restriction, specifically in the absence of any statutory term worked in this regard. 13. At the present juncture, the advisory issued by the Ministry of Environment, Forest & Climate Change sought to bring within its control such "exotic live species" since there was no requirement to maintain any statutory record of possession, acquisition, storage, captive breeding and domestic trade of wild animals/birds within India under the Wild Life (Protection) Act, 1972, the Customs Act, 1962, the Code of Criminal Procedure nor the Indian Penal Code. 14. Therefore, it appears that the Government of India in the absence of any regulation to cover "exotic species" appears to have framed the scheme of Voluntary Disclosure (Annexure-2) and provide for making declarations, whereby the declarant would not be required to produce any documentation in relation to "exotic live species" in its possession, provided the same is declared within six months from the date of issue of advisory. It is ....
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....f any voluntary disclosures made under the scheme introduced by the advisory is used for initiation of any proceeding against a declarant under the Customs Act, 1962, or any other law, the same would lack bona fides. 18. Once a person has made a declaration under the Voluntary Disclosure Scheme under Annexure-1 & Annexure-2, the immunity provided under the said advisory scheme introduced by the Government of India cannot be set at naught by use of Section 108 of the Customs Act, 1962, in order to compel a declarant to divulge the information in respect of such immunity, as promised to the declaration under the Voluntary Disclosure Scheme by the Central Government. It is clear therefrom that once a person has made a declaration under the Voluntary Disclosure Scheme under Annexure-1 & Annexure-2, such persons cannot be proceeded against on the basis of information provided in such declaration and it would not be proper to allow any investigation under the provisions of the Customs Act, 1962, to be initiated at-least till the limited time provided under the Voluntary Disclosure Scheme in order to make declaration thereunder. No officer far less to that of Custom, DRI, WCCB and poli....