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2019 (9) TMI 881 - HC - Indian LawsProtection of world's wild fauna mainly exotic animals/birds and to protect and improve the natural environment including the wildlife - case of the petitioner is that the exotic animals/birds are not covered under the Schedules of the Wildlife (Protection) Act, 1972 - HELD THAT - The live animals and birds cannot be imported into India, save and except under a valid Import License issued by the DGFT. Further, as per Policy Condition No. 6, the import of species listed in CITES are subject to the provisions of CITES. Thus, import into India of the exotic animals and birds specified in CITES is restricted. The import of only wild animals defined in the Wildlife (Protection) Act, 1972 is prohibited. 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. The exotic birds/animals do not come under the purview of Wild Life Protection Act, 1972. There is no provision under the Wildlife (Protection) Act, 1972 to issue licence or permission for dealing in exotic birds.There are no Rules and Regulations and procedures for keeping, breeding, buying, selling and exhibiting such animals (exotic animals) within country which have been bred in India. No documents are specified and no permission are required as per Customs Act for keepin g, breeding buying, selling and exhibiting such animals (exotic animals) within country which have been bred in India. Animals have been bred in captivity in India, Customs Act does not have role in it - From plethora of material adduced by the petitioner, it is very clear that trade, possession, transportation and breeding of exotic animals/exotic birds within India is not governed and restricted by Wildlife (Protection) Act, 1972. The exotic animals/birds are not notified under Section 123 of the Customs Act, 1962. Thus, there is no burden on the person who is in possession of exotic animals/birds, to prove his lawful acquisition or lawful importation into India under the provisions of Customs Act, 1962 - 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, as they are not notified under Section 11B. Thus, the person in possession of 'exotic animals/Birds is not bound 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 acquiring, maintaining accounts or sale thereof. It is well settled that the Court must be extremely careful to see that under the guise of redressing public grievance it does not encroach upon the sphere reserved by the Constitution to the Executive and the Legislature. Thus, it cannot direct the government to initiate legislation or interfere in the matters of governmental policy, except in cases of violation of fundamental rights. The Central Government has consciously kept the exotic animals/ exotic birds out of the purview of Wildlife (Protection) Act, 1972 by not including them in its Schedules, and has thus permitted their domestic trading, possession and captive breeding in India. Such legislative intent and decision of the Government can neither be interfered with in writ jurisdiction, nor can any direction be given to the Government in this regard to amend Wildlife (Protection) Act, 1972 or Customs Act, 1962. At the point of Import/Export, a Customs/DRI officer has jurisdiction to detect and prevent International Trade, i.e., import/ export of live animals and birds into or out of India, if found in 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 by DRI/Customs and the concerned persons can be subjected to penal and confiscatory provisions in accordance with the provisions of the Customs Act, 1962. There is no restriction on domestic trade, keeping, captive, breeding, buying, selling and exhibiting 'exotic animals/exotic birds' within India, either under the Wildlife (Protection) Act, 1972 or under the Customs Act, 1962 or under the Foreign Trade (Development Regulation) Act, 1962 or CITES. The present Public Interest Litigation petition is hereby dismissed without costs.
Issues Involved:
1. Implementation of CITES provisions in India. 2. Amendments to the Wildlife (Protection) Act, 1972 and Customs Act, 1962. 3. Regulation of domestic trade, possession, and breeding of exotic animals/birds. 4. Collection of breeding, trade, and census data of exotic animals/birds. 5. Jurisdiction and enforcement by Customs and Wildlife Authorities. Issue-wise Detailed Analysis: 1. Implementation of CITES Provisions in India: The petitioner sought directions for the Central Government to implement CITES provisions and amend relevant statutes to enable the seizure, confiscation, regulation, restriction, and prohibition of domestic trade, possession, and breeding of exotic animals/birds. The court noted that India is a signatory to CITES, which aims to ensure that international trade in wild animals does not threaten their existence. However, CITES itself does not prohibit stricter domestic measures, and thus, there is no bar to enacting strict provisions for domestic trade and possession of exotic animals/birds. 2. Amendments to the Wildlife (Protection) Act, 1972 and Customs Act, 1962: The petitioner argued that the Wildlife (Protection) Act, 1972 does not cover exotic animals/birds, leading to unregulated domestic trade and breeding. The court observed that the Wildlife (Protection) Amendment Bill, 2013, which proposed to regulate the possession, breeding, and domestic trade of exotic species, was introduced but never enacted into law. The court emphasized that legislative intent and decisions of the government cannot be interfered with in writ jurisdiction, and no direction can be issued to the government to amend the Wildlife (Protection) Act, 1972 or the Customs Act, 1962. 3. Regulation of Domestic Trade, Possession, and Breeding of Exotic Animals/Birds: The court acknowledged that domestic trade, possession, and breeding of exotic animals/birds within India are not governed or restricted by the Wildlife (Protection) Act, 1972. The Customs Act, 1962, and Foreign Trade Policy regulate only international trade. The court noted that there is no requirement to maintain statutory records of possession, acquisition, storage, captive breeding, and domestic trade of exotic animals/birds within India under the existing legal framework. 4. Collection of Breeding, Trade, and Census Data of Exotic Animals/Birds: The petitioner sought directions for the collection of breeding, trade, and census data of exotic animals/birds to ascertain their status. The court noted that the petitioner relied on various documents, including the CITES Annual Report and instructions from the Ministry of Environment, Forest & Climate Change, to highlight the lack of jurisdiction and control over exotic animals/birds. However, the court did not find merit in issuing directions for data collection, as it falls within the domain of the executive. 5. Jurisdiction and Enforcement by Customs and Wildlife Authorities: The court clarified that at the point of import/export, Customs/DRI officers have jurisdiction to detect and prevent smuggling of live animals and birds, subjecting violators to penal and confiscatory provisions under the Customs Act, 1962. However, the enforcement of CITES provisions within India is carried out by State/UT Wildlife Departments under the Wildlife (Protection) Act, 1972. The court emphasized that there is no statutory presumption that all exotic animals/birds in India are smuggled, and mere possession or acquisition does not invite penal consequences under the Customs Act, 1962. Conclusion: The court dismissed the petition, stating that the Central Government's decision to keep exotic animals/birds out of the purview of the Wildlife (Protection) Act, 1972, and permit their domestic trade, possession, and breeding cannot be interfered with in writ jurisdiction. The court also highlighted that there is no restriction on domestic trade, keeping, captive breeding, buying, selling, and exhibiting exotic animals/birds within India under the existing legal framework.
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