2020 (10) TMI 646 - HC - Customs

Exotic species - Constitutional Validity of Section 108 of the Customs Act, 1962 - vires of Article 14 and 21 of the Constitution of India - issuance of suitable Circular/Instructions to enable the citizens in domestic possession of exotic species to make declaration under the voluntary disclosure scheme without any fear of actions under the customs Act, 1962 - summon of petitioner for seeking any information relating to the acquisition of the exotic species in possession of the petitioner in respect of which the petitioner is contemplating filing of a declaration under the Voluntary Disclosure Scheme - prohibition on officers of the Respondents from taking any action of summoning the petitioner in connection with inquiry or seizure/confiscation of exotic species in domestic possession, under any law. HELD THAT - The writ jurisdiction under Article 226 of the Constitution of India can be exercised even to protect the apprehended violation of right or to enforce statutory duty. The advisory introduced by the Central Government is in public interest and for a limited period of six months. We do not find it just and expedient to consider the apprehension raised by the petitioner and deal with the issue raised on their own merits. At the present juncture, the advisory issued by the Ministry of Environment, Forest Climate Change sought to bring within its control such exotic live species since there was no requirement to maintain any statutory record of possession, acquisition, storage, captive breeding and domestic trade of wild animals/birds within India under the Wild Life (Protection) Act, 1972, the Customs Act, 1962, the Code of Criminal Procedure nor the Indian Penal Code - Therefore, it appears that the Government of India in the absence of any regulation to cover exotic species appears to have framed the scheme of Voluntary Disclosure (Annexure-2) and provide for making declarations, whereby the declarant would not be required to produce any documentation in relation to exotic live species in its possession, provided the same is declared within six months from the date of issue of advisory. It is clear from the advisory that any declaration made after six months from the date of issue of such scheme, a declarant would be required to comply with the documentation requirements under the extant laws and regulations. Therefore, persons who are holders of such exotic species in the country within India are required to upload the requisite form on the official website of the Government of India in order to complete the stock registration process. Such registration will be done for the stock of animals/new progeny as well as for import and exchange. The apparent objective behind the scheme further appears to be to streamline the CITES compliances and provide procedure for import of exotic live species and requires their registration/declaration of the progenies of such imported exotic live species . Once a person has made a declaration under the Voluntary Disclosure Scheme under Annexure-1 Annexure-2, the immunity provided under the said advisory scheme introduced by the Government of India cannot be set at naught by use of Section 108 of the Customs Act, 1962, in order to compel a declarant to divulge the information in respect of such immunity, as promised to the declaration under the Voluntary Disclosure Scheme by the Central Government. It is clear therefrom that once a person has made a declaration under the Voluntary Disclosure Scheme under Annexure-1 Annexure-2, such persons cannot be proceeded against on the basis of information provided in such declaration and it would not be proper to allow any investigation under the provisions of the Customs Act, 1962, to be initiated at-least till the limited time provided under the Voluntary Disclosure Scheme in order to make declaration thereunder - a declarer who files a declaration of course within the time stipulated therunder, cannot be made subject to any action under the Customs Act, 1962 or any other law in respect of the stock in the guise of any charge of smuggling or dealing in or possessing the smuggled exotic species, whether on conjectures or surmises, or on the strength of any oral statement. Since the Union Government acting through the Ministry of Environment, Forest and Climate Change for granting immunity, though for a limited period of six months from the date of issue of such notification to the public at large, the object behind such Voluntary Disclosure Scheme being in larger public interest, is required to be promoted by all Government Departments in order to ensure that any declarer under the scheme is not subjected to any other penal or confiscation under any enactment. If any action is initiated, in such circumstances within the period stipulated in the notification, the same would be clearly, manifestly arbitrary and illegal. Section 108 of the Customs Act, 1962 is intra vires accordingly declining the prayer impugning the said provision. Insofar as the prayer for issuance of circular in this regard is concerned, we refrain from issuing any such direction, as prayed for, while leaving the same to the wisdom and discretion of the appropriate departments including the Central Board of Indirect Taxes. Petition disposed off.

Summary

Issues Involved:
1. Constitutionality of Section 108 of the Customs Act, 1962.
2. Issuance of Circulars/Instructions for Voluntary Disclosure Scheme.
3. Prohibition against summoning under Section 108 of the Customs Act, 1962.
4. Prohibition against actions related to exotic species under any law.
5. Interim relief against proceedings under the Customs Act, 1962.

Issue-wise Detailed Analysis:

1. Constitutionality of Section 108 of the Customs Act, 1962:
The petitioner challenged the validity of Section 108 of the Customs Act, 1962, claiming it was arbitrary and violated Articles 14 and 21 of the Constitution of India. The court observed that Section 108 is a crucial investigative tool for Customs Officers to record voluntary statements and cannot be deemed unconstitutional solely based on potential misuse. The court referred to judgments in D.K. Basu Vs. State of West Bengal and A. Tajudeen Vs. Union of India, emphasizing that misuse of power does not justify declaring the provision unconstitutional. Consequently, the court upheld Section 108 as intra vires, rejecting the challenge to its validity.

2. Issuance of Circulars/Instructions for Voluntary Disclosure Scheme:
The petitioner sought a writ of mandamus directing the respondent to issue suitable circulars or instructions to enable citizens to declare exotic species without fear of actions under the Customs Act, 1962. The court refrained from issuing such directions, leaving the matter to the discretion of the appropriate departments, including the Central Board of Indirect Taxes.

3. Prohibition against summoning under Section 108 of the Customs Act, 1962:
The petitioner feared that Customs Authorities might exercise powers under Section 108 of the Customs Act, 1962, to initiate coercive measures before or after filing a declaration under the Voluntary Disclosure Scheme. The court clarified that once a person makes a declaration under the Voluntary Disclosure Scheme, they cannot be compelled to divulge information related to the acquisition of exotic live species in their possession. The court emphasized that any use of Section 108 to initiate proceedings against a declarant under the scheme would lack bona fides and be manifestly arbitrary.

4. Prohibition against actions related to exotic species under any law:
The petitioner requested a writ of prohibition against any action by the respondents under any law concerning the exotic species in their possession. The court held that once a declaration is made under the Voluntary Disclosure Scheme, the declarant cannot be subjected to any action under the Customs Act, 1962, or any other law concerning the declared stock. The court stated that no officer, including those from Customs, DRI, WCCB, or police, could act in a manner that deprives a person of the opportunity to become a declarant under the scheme.

5. Interim relief against proceedings under the Customs Act, 1962:
The petitioner sought interim relief to restrain the respondents from initiating any proceedings under the Customs Act, 1962, pending the final disposal of the writ petition. The court observed that the Voluntary Disclosure Scheme introduced by the Ministry of Environment, Forest, and Climate Change aimed to streamline the process for the import and possession of exotic live species in India. The court noted that the scheme provided immunity for a limited period of six months from the date of issue of the advisory. The court emphasized that any action initiated within this period would be arbitrary and illegal, thus granting the petitioner the interim relief sought.

Conclusion:
The court upheld the constitutionality of Section 108 of the Customs Act, 1962, and provided clarity on the applicability of the Voluntary Disclosure Scheme. The court emphasized that declarants under the scheme should not face coercive measures or actions under any law concerning their declared exotic species. The petition was disposed of with these observations, and all pending applications were also disposed of.