2021 (12) TMI 1117 - HC - Customs

PIL - Smuggling - Validity of Voluntary Disclosure Scheme dated 11-06-2020 introduced by the Wildlife Division, Government of India - It was contended that, the main purpose of the Voluntary Disclosure Scheme was stated to collect stock information for persons who have in their possession exotic live species i.e., exotic live birds and animals within India through such voluntary disclosure . - seizure of all exotic birds and animals found within or being transported through the State of Meghalaya - HELD THAT - The question of presumption of exotic birds and animals as having been illegally smuggled does not arise since the exotic birds and animals are not notified under Section 123 of the Customs Act. The provision of Chapter IVA of the Customs Act which provides for detection of illegally imported goods and prevention of their disposal thereof comprising of Section 11A to 11G are also inapplicable. Admittedly, the Central Government has not notified the exotic birds and animals in question under Section 11B of the Customs Act. There are safeguards in place to detect the illegally smuggled goods at the point of entry and exit which are regulated under the Customs Act. Even the Foreign Trade Policy and the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES) aid in prevention of illegal smuggling of exotic species. Neither there is any statutory presumption exist to presume that all the exotic species in the domestic area are imported in India nor there is a legal requirement which compels domestic keeper, breeder or transporter of such exotic species to produce any proof of valid importation or documents establishing his licit acquisition. As already held by the Allahabad High Court in DINESH CHANDRA VERSUS U.O.I. THRU. ADDL. PRIN. CHIEF. CONSERVATOR OF FOREST OTHERS 2020 (7) TMI 750 - ALLAHABAD HIGH COURT , seizure of exotic species in domestic area on mere surmises or merely on the basis of statements recorded by Customs or Wildlife Authorities would be contrary to the provisions of the Customs Act, 1962 or even Wildlife Act. Hence, no such directions to seize exotic species found within or being transported through the State of Meghalaya can be issued. There is no prohibition, restriction or regulation to sale, purchase, possession or breeding of the exotic species within India under the provisions of the Customs Act, 1962 or even the Wildlife Act. Seizure of these exotic species would be contrary to the provisions of the Customs Act, 1962 and no such direction can be issued. Public Interest Litigation is without any merit and is dismissed.

Summary

Issues:
Challenge to the validity of the Voluntary Disclosure Scheme regarding exotic birds and animals in Meghalaya.

Analysis:
The petitioner filed a Public Interest Litigation seeking to declare the Voluntary Disclosure Scheme introduced by the Wildlife Division, Government of India as void ab initio. The petitioner argued that the scheme lacked statutory backing and the immunity provided against penalty for disclosure was against public interest. The petitioner contended that exotic birds and animals in Meghalaya should be seized for confiscation as their presence implied illegal smuggling. The petitioner referenced previous High Court and Supreme Court decisions to support their stance.

The Voluntary Disclosure Scheme aimed to collect information on exotic live species in possession within India through voluntary disclosure. The validity of the immunity granted under the scheme was challenged in a case before the High Court of Allahabad, Lucknow Bench, where the court upheld the immunity, preventing penal or confiscatory measures against declarants. This decision was confirmed by the Supreme Court, dismissing the petitioner's appeal.

Another case in the Rajasthan High Court affirmed that declarants under the scheme were entitled to immunity, further upheld by the Supreme Court. The High Court of Allahabad had previously examined the provisions of the Customs Act, Wildlife Act, and relevant circulars, concluding that domestic activities related to exotic birds and animals within India did not contravene laws, with customs regulations applicable at entry and exit points.

The Bombay High Court, Nagpur Bench, clarified that the Customs Act did not apply to exotic species, relieving owners from proving legal importation. The judgment emphasized that statutory safeguards and international agreements aided in preventing illegal smuggling, highlighting the possibility of exotic species in India through captive breeding. The court rejected the presumption of illegal smuggling for all exotic species in domestic areas, as not all required proof of valid importation.

The court dismissed the Public Interest Litigation, affirming the decisions of previous courts and rejecting the need for seizing exotic species in Meghalaya. The judgment emphasized the absence of legal provisions mandating proof of valid importation for domestic keepers, breeders, or transporters of exotic species within India. It concluded that seizure of exotic species in domestic areas based on mere assumptions or statements would contradict the Customs Act and Wildlife Act, hence no such direction for seizure could be issued.