2020 (8) TMI 847 - HC - Customs

Seeking enlargement on Bail - seizure of one live Kangaroo, three nos. of live exotic tortoises, 6 nos. of live blue Macaws, 2 nos. of live exotic monkeys - exotic animals - prohibited animals or not - violation of principles of natural justice - Wildlife (Protection) Act, 1972 - HELD THAT - Any criminal investigation can be initiated only when an offence is committed under any penal provision of any statute in this country. It is in this context one has to examine as to whether the wild animals which had been rescued and seized by the Forest authorities from the petitioners fall within the category of prohibited animals to be in possession of under the Wildlife (Protection) Act, 1972 so as to endow jurisdiction to the authorities under the Act to initiate the proceeding against the present petitioners in connection with which they are presently lodged in the jail - As clearly mentioned in the forwarding letter dated 29.07.2020, the forest authorities themselves had admitted that none of these animals come under the purview of the Wildlife (Protection) Act, 1972 because of which the Forest authorities themselves made the request to the Chief Judicial Magistrate, Cachar to hand over the investigation of the case to the Custom Department if deemed fit and proper. The forwarding report would clearly indicate that none of the seized animals come within the purview of the Wildlife (Protection) Act, 1972, in which event, the detention of the petitioners under the aforesaid Act would be prima facie not permissible. However, this Court is not making any observation as to the merit of the case at this stage as it is only for the purpose of considering the bail application on the basis of the aforesaid document, which is not disputed by the learned Special Public Prosecutor - this Court is also of the view that detention of the petitioners under the Wildlife (Protection) Act will not be proper as the petitioners cannot be said to have committed any offence under the Wildlife (Protection) Act, 1972. This Court has also noted that the Forest authority has mentioned the possibility of violation of the Customs Act, 1962 for which the Forest authorities also made the request to the learned CJM for handing over the investigation to the Custom Department if deemed fit and proper. This Court is also of the opinion that if these exotic animals are not notified under Section 123 of the Customs Act, 1962, perhaps handing over the case to the Customs Department will not serve any purpose, as possession or transportation of these birds cannot be considered to be offence under the Customs Act as well - the learned Special Public Prosecutor has not disputed the fact that these seized animals do not come within the purview of the Wildlife (Protection) Act, 1972 in view of the forwarding report submitted by the Range Forest Officer, Hawaithang Range, Dholai. This Court is satisfied that as seized animals do not come within the purview of the Wildlife (Protection) Act, 1972, the detention of the petitioners would not be permissible under the Wildlife (Protection) Act, 1972 and since the only case registered against the petitioners as on date is under the Wildlife (Protection) Act, 1972, this Court is of the view that the petitioners will be entitled to go on bail vis a vis the aforesaid case under the Wildlife (Protection) Act, 1972 unless wanted in connection with any other case. The petitioners are allowed to go on bail on furnishing bail bond of ₹ 50,000/- with 2 (two) sureties each of like amount, one of which will be a local resident and another, a Government employee to the satisfaction of the learned CJM, Cachar, and the petitioners will fully cooperate with the investigation of the case and shall present themselves before the Investigating Officer of the case as and when directed to do so - Bail application allowed.

Summary

Issues Involved:
1. Legality of the detention of the petitioners under the Wildlife (Protection) Act, 1972.
2. Jurisdiction of the authorities under the Wildlife (Protection) Act, 1972.
3. Consideration of bail application by the High Court.

Detailed Analysis:

1. Legality of the Detention of the Petitioners:
The petitioners were arrested in connection with C.R. Case No. 111/2020 under Section 44/48(A)/51 of the Wildlife (Protection) Act, 1972. The seizure memo dated 29.07.2020 indicated that one live Kangaroo, three exotic tortoises, six blue Macaws, and two exotic monkeys were seized while being transported by the petitioners. The petitioners argued that these animals are exotic and do not fall under the purview of the Wildlife (Protection) Act, 1972, making their detention illegal. The forwarding report by the Range Forest Officer, Hawaithang Range, Dholai, confirmed that the seized animals are not covered by the Wildlife (Protection) Act, 1972, and suggested handing over the investigation to the Customs Department.

2. Jurisdiction of the Authorities:
The court examined whether the seized animals fall within the category of prohibited animals under the Wildlife (Protection) Act, 1972. The forwarding letter dated 29.07.2020 from the forest authorities admitted that none of the animals come under the purview of the Wildlife (Protection) Act, 1972. The court noted that if the animals are not covered by the Act, the detention of the petitioners under this Act would be prima facie impermissible. The court also referenced a decision by the Allahabad High Court in PIL (Civil) No. 22903/2019, which stated that exotic animals under CITES are not notified under Section 123 of the Customs Act, 1962, and possession of these animals is not unlawful under the Act.

3. Consideration of Bail Application:
The petitioners' bail applications were previously rejected by the Court of Chief Judicial Magistrate, Cachar, on the grounds of early-stage investigation and incriminating materials against them. However, the lower court did not consider the petitioners' plea that no offense was committed under the Wildlife (Protection) Act, 1972. The High Court, upon reviewing the forwarding report and the lack of dispute from the Special Public Prosecutor, concluded that the detention under the Wildlife (Protection) Act, 1972, was not proper. The court allowed the bail application, requiring the petitioners to furnish a bail bond of ?50,000 with two sureties each, one being a local resident and another a government employee, and directed them to cooperate with the investigation.

Conclusion:
The High Court granted bail to the petitioners, emphasizing that the seized animals do not fall under the Wildlife (Protection) Act, 1972, and thus, their detention under this Act was not permissible. The court also directed that the seized animals be kept in the safe custody of the Assam State Zoo, Guwahati.