2007 (9) TMI 532 - HC - Customs

Animal article - whether the phrase animal article excludes animal hair ? Held that - It is evident that the petitioner s plea contending that the definition of Trophy includes the term hair and thus excludes it from the definition of Animal article would lead to an absurd result and would be contrary to known canons of interpretations and the legislative intent derived from the explicit statutory terms and the statement of objects and reasons. If there was any doubt or ambiguity in Section 2(2) and 2(31), such ambiguity was fully clarified by the legislative intent discernible from Sections 49A(a) and 49A(b) of the Act which shows that the manufacture of scheduled animal articles is completely prohibited under Section 49B of the Act. In our view, any person who is found to be carrying on trade or dealing in Shahtoosh is liable to be proceeded under the Act as Shahtoosh is made from hair which is a derivative of animal Chiru, which falls under the definition of scheduled animal article . The wild animal Chiru falls in Part I Schedule I of the Act, trading in which is strictly prohibited under Section 49B of the Act. Against assessee.

Issues:

1. Whether the phrase "animal article" excludes "animal hair" under the Wildlife (Protection) Act, 1972.
2. Whether the seizure of shawls suspected to be made of 'Shahtoosh wool' is justified under the Wildlife (Protection) Act, 1972 and the Customs Act, 1962.
3. Whether the export of shahtoosh shawls is prohibited under the Exim Policy 1992-97.

Analysis:

Issue 1: Definition of "Animal Article" and "Animal Hair"

The main question raised in this writ petition is whether the phrase "animal article" excludes "animal hair." The petitioners argued that the Wildlife (Protection) Act, 1972, prohibits dealing with 'Animal Article' or 'Trophy' but does not explicitly include 'hair' in the definition of 'animal article.' They cited Section 2(2) of the Act, which defines 'Animal Article' as an article made from any captive or wild animal, excluding vermin, and includes an article or object in which the whole or any part of such animal has been used. They contrasted this with Section 2(31), which defines 'Trophy' to include 'hair.'

The petitioners contended that 'Animal Article' requires human skill, while 'Trophy' includes parts of animals preserved by natural or artificial means. They argued that 'hair,' once woven into a shawl, ceases to be preserved in its natural form and does not find a specific mention in the definition of 'animal article.'

The respondents countered that the legislative intent was to prohibit trade in all parts and derivatives of scheduled animals. They cited various provisions, including Section 49A(a) and (b), which define 'Scheduled Animal Article' to include any article made from a scheduled animal, except for specific exclusions like peacock feathers and snake venom. They argued that the definitions of 'uncured trophy,' 'trophy,' and 'Scheduled Animal Article' are complementary and not mutually exclusive.

The court held that the legislative intent was clear in prohibiting trade in all parts and derivatives of scheduled animals, including 'hair.' The court emphasized that the definitions should be interpreted harmoniously to give effect to the legislative purpose. The court rejected the petitioners' argument that 'hair' is excluded from the definition of 'animal article' merely because it is included in the definition of 'trophy.'

Issue 2: Seizure of Shawls

The petitioners challenged the seizure of 12 shawls suspected to be made of 'Shahtoosh wool' by the Customs Authorities and Wildlife officials. They argued that the shawls do not fall within the definition of 'animal article' and hence are not subject to seizure under the Wildlife (Protection) Act, 1972, or the Customs Act, 1962.

The respondents contended that the shawls were made from the wool of the Tibetan Antelope or Chiru, a scheduled animal under the Wildlife (Protection) Act, 1972. They argued that trading in shahtoosh wool is strictly prohibited and that the shawls are liable to be confiscated under both the Wildlife Act and the Customs Act.

The court held that the seizure of the shawls was justified. The court noted that the legislative intent was to prohibit trade in all parts and derivatives of scheduled animals, including shahtoosh wool. The court emphasized that the definitions of 'animal article' and 'trophy' should be interpreted to include 'hair' and its derivatives, such as shahtoosh shawls.

Issue 3: Prohibition of Export

The petitioners argued that the export of shahtoosh shawls is not explicitly prohibited under the Exim Policy 1992-97. They contended that the shawls do not fall within the 'Negative List' of prohibited items under the policy.

The respondents countered that the Exim Policy 1992-97 prohibits the export of all forms of wildlife, including their parts and products. They argued that shahtoosh shawls, being made from the wool of the Tibetan Antelope or Chiru, fall within the prohibited items under the policy.

The court held that the export of shahtoosh shawls is prohibited under the Exim Policy 1992-97. The court noted that the policy explicitly includes all forms of wildlife and their parts and products in the 'Negative List' of prohibited items. The court emphasized that the legislative intent was to prohibit trade in all parts and derivatives of scheduled animals, including shahtoosh wool.

Conclusion:

The court dismissed the writ petition, holding that 'hair' is included in the definition of 'animal article' under the Wildlife (Protection) Act, 1972. The court upheld the seizure of the shahtoosh shawls and confirmed that their export is prohibited under the Exim Policy 1992-97. The court emphasized the legislative intent to prohibit trade in all parts and derivatives of scheduled animals to ensure ecological and environmental security.

← Previous Next →