2020 (7) TMI 750 - HC - Indian Laws

Licit acquisition and possession of the exotic animals/birds - Issuance of direction to enable the officers of the Directorate of Revenue Intelligence and the officers of Wildlife Crime Control Bureau, to inquire from the 'declarants' under the newly introduced Voluntary Disclosure Scheme - HELD THAT - Apparently, by introducing this Voluntary Disclosure Scheme the Central Government has given an option to all citizens to voluntarily declare their stock of exotic species named under the Appendices I, II and III of CITES, if any with them, within six months from the concerned date in June, 2020. The Scheme requires citizens to submit themselves to the provisions of the scheme and to thereafter maintain the statutory record as prescribed under the Scheme for any addition or reduction in declared stock of exotic species. This would enable the Government to have a unified information system available for stock of exotic species at the State/Central level. This would also enable the Central Government to introduce further provisions regulatory as well as penal, after giving this window of six months for voluntary disclosure by allowing immunities only to those, who opt to file their voluntary disclosure declaration within this six months window. Immunity is not provided to the declarants opting to disclose the stock after this limited window of six months. After expiry of this six months' window, the Scheme clearly states that- . For any declaration made after 6 months of the date of issue of this advisory, the declarer shall be required to comply with the documentation requirement under the extant laws and regulations. It is settled law that Government shall speak in same voice. The Central Government, Ministry of Environment, Forest and Climate Change, through Wildlife Division has already introduced the voluntary disclosure scheme in wider public interest by announcing immunity for a limited window of six months to promote and invite voluntary disclosure declaration from all concerned. The scheme so introduced by the Central Government shall be promoted by all the departments in wider public interest. During this limited interregnum of six months, any inquiry or action against procession, breeding or transportation of exotic species within India by officers of any government agency or department, whether of Central or State, would be wholly illegal, arbitrary, unreasonable, unsustainable and would defeat the purpose of the voluntary disclosure scheme. In this period of six months, whosoever declares the stock of exotic species and thereby submits himself to registration and further requirements of the scheme, shall have immunity from any inquiry into source of licit acquisition or possession of the voluntarily declared stock of exotic species - thus, dragging the declarant and chasing him for subjecting him to any penal or confiscatory measures under any enactment in connection with such timely and voluntarily declared stock of exotic species would be highly unreasonable, arbitrary and illegal, being contrary to legitimate expectation. Thus, no such directions as sought by the petitioner can be issued - petition dismissed.

Issues Involved:
1. Validity of the immunity promised under the Voluntary Disclosure Scheme.
2. Requirement of documentation for declared exotic species.
3. Jurisdiction of Customs/DRI officers in detecting and preventing smuggling of exotic species.
4. Legal position regarding domestic trading, possession, and breeding of exotic species.
5. Legitimacy of government actions against declared exotic species during the six-month window.

Issue-wise Detailed Analysis:

1. Validity of the Immunity Promised Under the Voluntary Disclosure Scheme:
The petitioner challenged the immunity promised under the Voluntary Disclosure Scheme, arguing that it should not prevent investigations into the acquisition or possession of exotic species. The court noted that the scheme aims to develop an inventory of exotic live species within India and regulate their import and possession. The scheme provides immunity for declarations made within a six-month window, which is in the wider public interest. The court emphasized that during this period, any inquiry or action against the possession, breeding, or transportation of exotic species would be illegal and contrary to the scheme's purpose.

2. Requirement of Documentation for Declared Exotic Species:
The scheme specifies that declarants are not required to produce documentation for exotic live species declared within the six-month window. After this period, compliance with documentation requirements under existing laws is mandatory. The court upheld this provision, stating that it is designed to encourage voluntary disclosure and create a unified information system for exotic species.

3. Jurisdiction of Customs/DRI Officers in Detecting and Preventing Smuggling of Exotic Species:
The court reaffirmed that Customs/DRI officers have jurisdiction to detect and prevent the smuggling of live animals and birds at the point of import/export. They can seize smuggled exotic species and subject the concerned persons to penal and confiscatory provisions under the Customs Act, 1962. This jurisdiction remains unaffected by the Voluntary Disclosure Scheme.

4. Legal Position Regarding Domestic Trading, Possession, and Breeding of Exotic Species:
The court referred to an earlier judgment (PIL Civil No. 22903 of 2019) which established that exotic birds/animals do not fall under the Wildlife (Protection) Act, 1972. There are no specific rules or permissions required for dealing with exotic animals bred in India. The court reiterated that there is no restriction on domestic trade, possession, or captive breeding of exotic species under the Wildlife (Protection) Act, 1972, Customs Act, 1962, or Foreign Trade (Development & Regulation) Act, 1962.

5. Legitimacy of Government Actions Against Declared Exotic Species During the Six-Month Window:
The court held that any government action against the possession, breeding, or transportation of exotic species declared within the six-month window would be illegal and arbitrary. The Voluntary Disclosure Scheme's immunity must be respected by all government departments to promote voluntary disclosure in the public interest. The court emphasized that dragging declarants into penal or confiscatory measures for voluntarily declared stock during this period would be unreasonable and contrary to legitimate expectations.

Conclusion:
The writ petition was dismissed, and the court upheld the Voluntary Disclosure Scheme's provisions, emphasizing the scheme's purpose of encouraging voluntary disclosure and creating a unified information system for exotic species. The court reiterated the legal position regarding the domestic trade and possession of exotic species and confirmed the jurisdiction of Customs/DRI officers in preventing smuggling at the point of import/export. The petitioner's request for directions was denied, and the court emphasized that government actions against declared exotic species during the six-month window would be illegal and contrary to the scheme's purpose.

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