2019 (12) TMI 72 - HC - Customs

Direction to join the authorities from the Wildlife Crime Control Bureau, Western Region, Mumbai (Maharashtra) as party respondents - investigation under Section 135 of the Customs Act, 1962 - petitioner submitted that under the provisions of Section 110 of the Customs Act, 1962, unless the petitioner is in a position to prove that he has legally imported such species to India, they are liable to confiscation under the said provisions - HELD THAT - Admittedly, import of exotic species of birds or animals is not permitted unless it is under valid license or payment of appropriate customs duty. So far as Wildlife Protection Act is concerned, admittedly, exotic species of birds or animals are not covered under the schedule thereunder and as such, we do not find that there can be any restriction to their domestic trade, possession or keep for breeding under the said Act. It is specifically noted that simply because exotic species are those birds or animals whose origin is not placed to Indian Wildlife by itself does not mean that unless the person who is in possession of same, said birds or animals are presumed to be smuggled into India, in view of the fact that provisions of the Foreign Trade Policy are applicable only in international foreign trade and not in relation to domestic possession or trading or breeding. Perusal of the provisions of Section 123 of the Customs Act, 1962 would reveal that it has no application to the exotic species of birds and animals and thus, owners or persons claiming ownership or are in possession of such exotic species are not required to establish that they are smuggled in India. Admittedly, it is not the case of the petitioner that M/s. SRK Exotic Birds, Nagpur had imported any consignment of such species. Documents filed in support of the petition, infact, would establish that M/s. SRK Exotic Birds, Nagpur is not only engaged in keeping and trading of such birds, but are also into breeding of them irrespective of the fact that origin of such birds is not actually traced in India - there are no manner whatsoever in which exotic species in possession of any such person can be ascertained as smuggled into India or locally bred in-captivity in the absence of any statutory ban imposed upon such in-captive breeding. There are no reason to issue any directions to initiate action as prayed for under the provisions of the Customs Act, 1962 on any domestic keeper of the exotic species, as issuance of any such directions would be contrary to law, as it stands on today - The provisions of Sections 123 and 110 of the Customs Act, 1962 are clear and unambiguous and, therefore, any seizure of such exotic species from one who is in possession and acquisition of same would be contrary to the provisions of the said Act. The petition is based on mere surmises and conjectures as the petitioner failed to prove any legal support in the background of his case - Petition dismissed.

Summary

Issues:
1. Whether directions should be issued to register a case against a specific entity and investigate it under the Customs Act, 1962.
2. Whether the possession and trading of exotic species of birds by a certain entity are legal.
3. Whether the provisions of the Customs Act, 1962 apply to the possession of exotic species of birds.
4. Whether the petition has legal merit and should be dismissed.

Analysis:
1. The petitioner sought directions to register a case against "M/s. SRK Exotic Birds, Nagpur" under Section 135 of the Customs Act, 1962, and to initiate prosecution by monitoring the investigation. The court noted that the petitioner failed to establish the tenability of the petition, and it was not necessary to add the mentioned respondents at that stage. The court found no grounds to issue directions without legal support, and the petition was dismissed.

2. The petitioner alleged that "M/s. SRK Exotic Birds, Nagpur" engaged in illegal trading of exotic birds without a valid import license. The court observed that possession and trading of exotic species of birds in India are not restricted under the Wildlife Protection Act unless there is a statutory ban. The court emphasized that the absence of proof of legal importation does not automatically imply smuggling, especially in the context of domestic possession or trading. The petition lacked legal basis, and no directions were issued against the entity.

3. The court analyzed Sections 110 and 123 of the Customs Act, 1962 concerning the confiscation of goods. It was clarified that the provisions did not apply to exotic species of birds and animals, and there was no requirement for owners to prove that the species were legally imported. The court highlighted that the mere possession of exotic species did not establish smuggling without statutory restrictions on in-captive breeding. As a result, the court found no legal grounds to initiate action under the Customs Act, 1962.

4. The court concluded that the petition was speculative and lacked legal support. It emphasized that there was no statutory presumption regarding the importation of exotic species into India, and domestic keepers were not obligated to provide proof of acquisition. Since there were no prohibitions or regulations under the Customs Act, 1962 regarding the sale, purchase, possession, or breeding of exotic species within India, the court dismissed the petition for lacking merit and being based on conjectures.