9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (12) TMI 493 - HC - CustomsImport of exotic animals - Prohibited or restricted item - basic contention of the petitioners is that they are breeders of exotic species of animals and birds and purchased the seized birds and animals from Imphal where they are freely available in open market - Section 135(a) and (b) of the Customs Act, 1962 - HELD THAT - The seized birds and animals are not included in any of the Schedule of the Wild Life (Protection) Act, 1972 and as such, the same is not within the purview of Foreign Trade (Development and Regulation) Act, 1992 and the Schedule 1- Import Policy. Therefore, the seizure of the birds and animals, in the instant case, has no approval of any law relevant for the purpose of the offence alleged in the instant case. This Court is, however, not in agreement with the learned counsel for the respondent so far applicability of the decision in OM PRAKASH BHATIA VERSUS COMMISSIONER OF CUSTOMS, DELHI 2003 (7) TMI 74 - SUPREME COURT is concerned in the given fact of the instant case as we have already indicated in the foregoing paras that the seized birds and animals are not notified to be prohibited goods under any law as required under Section 2(33) of the Customs Act, 1962. Petition disposed off.
Issues Involved:
1. Legality of the seizure of exotic animals and birds under the Customs Act, 1962. 2. Applicability of Section 135(a) and (b) of the Customs Act, 1962. 3. Definition and scope of "prohibited goods" under Section 2(33) of the Customs Act, 1962. 4. Relevance of Schedule 1 Import Policy under the Foreign Trade (Development and Regulation) Act, 1992. 5. Burden of proof and applicability of Section 123 of the Customs Act, 1962. 6. Applicability of CITES provisions in India. 7. Judicial precedents and their applicability to the case. Detailed Analysis: 1. Legality of the Seizure of Exotic Animals and Birds under the Customs Act, 1962: The petitioners argued that the seizure of exotic animals and birds was illegal and beyond the scope of the Customs Act, 1962. They contended that the seized animals and birds were purchased from the open market in Imphal, where they are freely available, and hence, no offence was committed under Section 135(a) and (b) of the Customs Act, 1962. The respondent, however, maintained that the seized items were "prohibited goods" under Section 2(33) of the Customs Act, 1962, and thus, the seizure was justified. 2. Applicability of Section 135(a) and (b) of the Customs Act, 1962: Section 135(a) and (b) of the Customs Act, 1962, deals with the evasion of duty or prohibitions. The petitioners asserted that no offence was committed under these sections as the exotic animals and birds were not notified as prohibited goods. The court found that for goods to be seized as prohibited or dutiable, they must be notified under Section 123(2) and 11B of the Customs Act, 1962, which was not the case here. 3. Definition and Scope of "Prohibited Goods" under Section 2(33) of the Customs Act, 1962: The respondent referred to the definition of "prohibited goods" under Section 2(33) of the Customs Act, 1962, which includes goods whose import or export is subject to any prohibition under any law for the time being in force. However, the court observed that the seized exotic animals and birds were not included in any Schedule of the Wild Life (Protection) Act, 1972, and thus, did not fall under the definition of "prohibited goods" as per Section 2(33) of the Customs Act, 1962. 4. Relevance of Schedule 1 Import Policy under the Foreign Trade (Development and Regulation) Act, 1992: The respondent relied on Schedule 1 Import Policy under the Foreign Trade (Development and Regulation) Act, 1992, to argue that the seized animals and birds were prohibited. However, the court noted that the Policy Condition No. 6 of the Schedule mentioned that only those species listed in CITES are subject to provisions of CITES, which has not been implemented in India. Therefore, the Schedule 1 Import Policy was not applicable to the seized items. 5. Burden of Proof and Applicability of Section 123 of the Customs Act, 1962: The petitioners argued that Section 123 of the Customs Act, 1962, which shifts the burden of proof to the accused for certain notified goods, did not apply to exotic species of animals and birds. The court agreed, noting that the seized items were not notified under Section 123(2) and 11B of the Customs Act, 1962, and thus, the burden of proof remained with the Customs Department. 6. Applicability of CITES Provisions in India: The court observed that the recommendations under CITES have not been implemented in India, and as such, the provisions of CITES were not applicable. Therefore, the seized exotic animals and birds could not be considered "prohibited goods" under the Customs Act, 1962, based on CITES provisions. 7. Judicial Precedents and Their Applicability to the Case: The petitioners cited several judgments, including Anil Naidu vs. Union of India, Dinesh Chandra vs. Union of India, and others, to support their contention that the seizure was illegal. The court found these judgments applicable and agreed with the views expressed in those orders. The court also noted that the decision in Om Prakash Bhatia vs. Commissioner of Customs, Delhi, cited by the respondent, was not applicable to the facts of the present case. Conclusion: The court concluded that the seized exotic animals and birds were not "prohibited goods" under any law relevant to the Customs Act, 1962. Therefore, the seizure had no statutory sanction, and proceeding further with the case would be an abuse of the process of the court. Accordingly, the court quashed the Customs case No. 05/CL/IMP/CUS/CPF/NML/2020-2021 pending in the court of the learned Chief Judicial Magistrate, Golaghat. Disposition: The petition was disposed of with the quashing of the Customs case.
|
