2021 (4) TMI 977 - HC - Customs

Bail application - Seizure of articles along with vehicle in question as well as accused petitioner also arrested - trading of exotic animals and birds - restricted items or not - notified under Section 123 of the Act or not - HELD THAT - Although no specific notification under Section 11-B of the Customs Act is brought on record about the species of exotic birds/animals under the Customs Act, but such criminals and birds of foreign origin enlisted in the Customs Tariff Act and in view of the fact the petitioners did not produce any sort of document, whatsoever, in support of possession of such valuable animals and birds, which is more than 4 crores and any other supportive evidence, it is difficult to accept that the same has been transported for domestic purpose. Having regard to the submissions of the Customs Department that the area from which it was purchased is nearer to the international border of Myanmar, the matter of smuggling and/or illegal import to India cannot be ruled out - as per the Schedule I of the Import Policy, 2017, import of live animals, other than wild animals and as defined under Wildlife Protection Act, 1972 (as amended) is permitted against a licence to Zoos and Zoological Park, Circus Companies, Private individuals on the recommendation of the Chief Wildlife Warden of a State Government, subject to provision of CITES. As in the present case, the petitioners have no sort of any documents in their possession in support of the seized animals. The Customs Officer, under Section 110 the Customs Act, is empowered to seize such articles, which are liable to confiscation under Section 111 of the Act - burden lies upon the accused to justify that those are not smuggled goods. The accused could not justify possession of such valuable animals and birds of foreign origin. In absence of any legitimate document in support of purchase of seized articles, allegation of prosecution cannot be denuded. Market value of the exotic animals and birds assessed by DFO (annexed with the report) is another aspect, which has raised the occasion to believe that the petitioners may be involved in smuggling activities. As per Section 104 (4) of the Customs Act, any offence relating to prohibited goods is cognizable offence and in view of the high value of the articles, in-depth investigation is required to unearth the entire gamut. Bail application rejected.

Summary

Issues:
1. Granting regular bail under Section 439 CrPC in connection with Customs Case No. 05/CL/IMP/CUS/CPF/NML/2020-21 under Section 135 (a) & (b) of the Customs Act, 1962.
2. Whether accused persons were rightfully arrested in connection with the case.
3. Interpretation of provisions of the Customs Act, 1962 and Wildlife Protection Act, 1972 regarding the possession and import of exotic animals and birds.
4. Application of Section 110 and Section 123 of the Customs Act in the case.
5. Burden of proof on the accused regarding the seized goods being smuggled.

Analysis:
1. The petitioners sought regular bail in connection with a Customs case under Section 135 (a) & (b) of the Customs Act, 1962. The accused were arrested for possessing exotic animals and birds of foreign origin without proper documentation. The defense argued that no offence under the Customs Act could be attributed to the accused as the seized animals were not covered under the Wildlife Protection Act and no legislative measures implementing CITES provisions existed in India. The defense contended that the Customs Act could not be invoked as the seized articles were not notified under the Act, and no evidence of smuggling was presented.

2. The Customs Department opposed bail, citing that the accused illegally imported foreign origin animals in violation of the Livestock Importation Act, 1898, and existing Import Policy of India. The defense failed to produce legal importation documents, and the animals were seized under Section 110 of the Customs Act due to suspicion of smuggling. The Department highlighted the high value of the seized animals and the absence of legitimate documents supporting legal possession. The Court considered the proximity of the purchase location to an international border, raising suspicions of illegal importation.

3. The Court analyzed the provisions of the Customs Act and Wildlife Protection Act, emphasizing the need for proper documentation for importing live animals. The defense argued that the seized animals were for domestic purposes, but without supporting documentation, the Court found it difficult to accept this claim. The Court noted that import of live animals required licenses and fulfillment of sanitary conditions, which the accused failed to provide.

4. Section 110 of the Customs Act empowers officers to seize articles liable for confiscation under Section 111. The burden of proving seized goods are not smuggled lies on the accused under Section 123. As the accused could not justify possession of the valuable foreign origin animals and birds, the burden of proof remained unfulfilled. The Court highlighted the absence of legitimate documents and the odd timing of apprehension as factors supporting the prosecution's allegations.

5. Due to the serious nature of the offence, the high value of the seized animals, and the need for in-depth investigation, the Court rejected the bail plea in the interest of the ongoing investigation. The Court emphasized the cognizable nature of offences related to prohibited goods under the Customs Act and the necessity for thorough examination in cases involving smuggling activities.