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TMI Blog2019 (9) TMI 881X X X X Extracts X X X X X X X X Extracts X X X X ..... e animals and birds, while being smuggled through the Indian Customs Frontiers, can be seized at the point of Import/Export and the concerned persons can be subjected to penal and confiscatory provisions in accordance with the provisions of the Customs Act, 1962. Regional Deputy Directors, Wildlife Crime Control Bureau is obliged to assist in the same. The exotic birds/animals do not come under the purview of Wild Life Protection Act, 1972. There is no provision under the Wildlife (Protection) Act, 1972 to issue licence or permission for dealing in exotic birds.There are no Rules and Regulations and procedures for keeping, breeding, buying, selling and exhibiting such animals (exotic animals) within country which have been bred in India. No documents are specified and no permission are required as per Customs Act for keepin g, breeding buying, selling and exhibiting such animals (exotic animals) within country which have been bred in India. Animals have been bred in captivity in India, Customs Act does not have role in it - From plethora of material adduced by the petitioner, it is very clear that trade, possession, transportation and breeding of exotic animals/exotic birds wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing, buying, selling and exhibiting 'exotic animals/exotic birds' within India, either under the Wildlife (Protection) Act, 1972 or under the Customs Act, 1962 or under the Foreign Trade (Development Regulation) Act, 1962 or CITES. The present Public Interest Litigation petition is hereby dismissed without costs. - P.I.L. CIVIL No. - 22903 of 2019 - - - Dated:- 30-8-2019 - Pankaj Kumar Jaiswal And Jaspreet Singh JJ. For the Petitioner : Ritesh Verma For the Respondent : A.S.G.,Digvijay Nath Dubey ORDER 1. Heard Ms. Divanshi Singh, Advocate and Sri Ritesh Verma, learned Counsel for the petitioner, Sri S. B. Pandey, learned Assistant Solicitor General of India assisted with Sri Mahendra Kumar Mishra, learned counsel for respondent Nos.1 and 3 and Sri Digvijay Nath Dubey, learned Counsel for respondent No.2. 2. The present petition is being filed as pro bono publico by the petitioner, who is an Advocate by profession and is a Citizen of India with the following prayers:- (i) Issue any appropriate writ, order or direction, directing the Central Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia is a signatory Party to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) . CITES is an international convention, aimed at ensuring that 'international trade' in wild animals specified in the various 'Appendix' appended thereto, does not threaten their existence in their native habitats. Article VIII (1) of CITES ( Annexure P1 to the writ petition ) states as follows:- The Parties shall take appropriate measures to enforce the provisions of the present Convention and to prohibit trade in specimens in violation thereof. These shall include measures: (a) to penalize trade in or possession of, such specimens, or both; and (b) to provide for the confiscation or return to the State of export of such specimens. 5. Further, Clause 1 of Article XIV of the said Convention reads as follows:- 1. The provisions of the present Convention shall in no way affect the right of Parties to adopt: (a) stricter domestic measures regarding the conditions for trade, taking possession or transport of specimens included in Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the survey. Majority of the exotic species listed therein were captive bred or domesticated forms. Although the thrust of the survey was on Indian specifies and not on exotics, nevertheless 2545 budgerigars, 546 zebra finches and 419 love birds (all exotic birds) were recorded in as many as 26 of the 65 markets surveyed during the period. One Indian Aviary SGS Birds - Shuka Vana, which breeds and rehabilitate exotic birds, has also been awarded Guinness world record on 26.05.2017. 9. Import of exotic animals/birds into India and exports thereof from India, are governed by the provisions of Customs Act, 1962, read with Foreign Trade Policy and the CITES. The Customs Act, 1962 and Foreign Trade (Development Regulation) Act, 1992 (whereunder Foreign Trade Policy is framed) are only regulating or preventing unauthorized import into or export from India, of exotic animals/birds. However, both these Acts being applicable only qua International Trade, the jurisdiction of Customs/DRI to enforce the provisions of CITES is restricted only at the point of Import/Export. The enforcement of CITES provisions elsewhere, is presently bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s per Convention on International Trade in Endangered Species of Wild Fauna and Flora, containing Sections 49D to 49P was proposed to be inserted. Proposed Section 49L of the said Bill was to govern the possession, breeding and domestic trade of exotic species or scheduled specimens, and Section 49P was to propose exotic species of scheduled specimen to be Government property . Vide Section 26 of the said Bill penal measures were proposed. As per the 253rd Report of the Parliamentary Standing Committee presented to the Rajya Sabha on 11.12.2014 ( Annexure - P7 to the writ petition ), the said Wildlife (Protection) Amendment Bill, 2013 was proposed to be withdrawn. The said Bill therefore never came in force as a Statute. The Bill proposing to penalize the 'possession', 'breeding' and 'domestic trade' of the exotic animals/birds although introduced, was never converted into a Statute. Consequently, to regulate, restrict or prohibit the 'possession', 'breeding' and 'domestic trade' of the exotic animals/exotic birds the Wildlife (Protection) Act, 1972 requires urgent appropriate amendments. 13. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10.2014 issued from File No.2-9/2014/WL, by the Government of India, Ministry of Environment, Forest Climate Change (Wildlife Division) to show different jurisdictions of Customs and WCCB officials; (3) Circular W-15/75-99 (WLER) dated 19.12.2005, issued by the Ministry of Environment Forests, Eastern Region vide Regional Deputy Director Assistant Management Authority under CITES , inter alia , addressed to 'All Exotic Bird dealers/breeders to show lack of jurisdiction in respect of exotic animals/birds as well as recognized existence of exotic bird dealers and breeders as recognized by the Government of India. (4) Answers to Questions raised in Lok Sabha, as recorded in the extracts dated June 8, 1998 to show lack of control and jurisdiction so far as exotic bird dealers and breeders etc are concerned. (5) Questions and Answers dated 22.5.1990 in Rajya Sabha Debates, to show that 'Internal Trade' i.e., domestic trade within India, of 'exotic species' not in any Schedule of the Wildlife (Protection) Act, 1972 was never prohibited, and that only 'External Trade', i.e., International Trade is gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agement Authority, CITES in India. There are 4 functional Assistant Management Authorities of CITES (AMA-CITES) working on behalf of MA-CITES at Delhi, Kolkata, Chennai and Mumbai. 3.1 Scientific Authorities Following are the Scientific Authorities to deal with the CITES related matter in the country. 1. Director, Zoological Survey of India, Kolkata (West Bengal) 2. Director, Botanical Survey of India, Kolkata (West Bengal) 3. Director, Central Marine Fisheries Research Institute, Cochin (Kerala) 4. Director, Wildlife Institute of India, Dehradun (Uttarakhand) 5. Director, Institute of Forest Genetics and Tree Breeding (IFGTB), Coimbatore. 3.2 ENFORCEMENT 3.2.1 Considering the seriousness of organised Wildlife Crime having the inter-state and international ramification and illegal trade of Wildlife parts and products, the Wildlife Crime Control Bureau was created in 2007 under the provisions of the Wildlife (Protection) Act 1972. The Wildlife Crime Control Bureau, Head Quarter is situated at New Delhi....... Wildl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edures Vol. 1, to the Director General of Foreign Trade along with the recommendation of the Chief Wild Life Warden of the State concerned. (6) Import of Wild Animals (including their parts and products) as defined in the Wild Life (Protection) Act, 1972 is prohibited and in respect of those species listed in CITES, is subject to the provisions of CITES. 23. Accordingly, live animals and birds cannot be imported into India, save and except under a valid Import License issued by the DGFT. Further, as per Policy Condition No. 6, the import of species listed in CITES are subject to the provisions of CITES. Thus, import into India of the exotic animals and birds specified in CITES is restricted. The import of only wild animals defined in the Wildlife (Protection) Act, 1972 is prohibited. 24. Export of live animals and birds is subject to Schedule - II, Export Policy. Note 1 to Table-A 'Goods falling in more than one Chapter of ITC (HS) Classification' thereof, reads as under:- Table-A Goods falling in more than one Chapter of ITC (HS) Classification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under:- The Chief Wildlife Warden All States/UTs Sub: Custody of live wildlife species seized/ detained at exit points - reg. Sir, You are aware that the Wildlife Crime Control Bureau (WCCB) is assisting Customs Authorities on inspection of import/export consignments under the provision of Wildlife (Protection) Act, 1972. Often wildlife/exotic species are detected during such inspections and the same are handed over to the officials of the WCCB for custody. Additionally the WCCB officially also seize wild animals/articles during raids conducted by them. 29. Even from perusal of the same, it is apparent that inspection of import/ export consignments of wildlife including exotic species at exit points is by Customs Authorities with assistance of WCCB, whereas elsewhere raids for seizure of wildlife (other than exotic species) are conducted by WCCB officials. 30. Annexure - P9 clearly shows that CITES do not govern the domestic trade, possession or breeding by any person including aviaries, but only international Trade. 31. Annexure - P12 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prohibited. Only 'External Trade' i.e., International Trade is governed by the conditions of Foreign Trade Policy. 34. Answers to Questions raised in Lok Sabha ( Annexure - P13 to the writ petition ), as recorded in the Lok Sabha debates dated June 8, 1998 reveal as under-- WRITTEN ANSWERS TO QUESTIONS - LOKSABHA DEBATES DATED JUNE 8, 1998 Trade of Wild Birds 176 SHRI PRABHUNATH SINGH SHRI MOHAN RAWALE Will the Minister of ENVIRONMENT AND FORESTS be pleased to state: (a) Whether a total ban has been in effect on the trapping and trade of Indian exotic/wild birds; (b) If so, the details thereof; (c) Whether the traditional bird trappers are being harassed in the name of Wild Life Conservation Act; (d) If so, the steps taken by the Government to provide alternative employment opportunities to these bird-trappers; (e) Whether according to the WWF Traffic India's latest survey on the live birds in Northern India, illegal trade in wild bird flourishes in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Endangered Species of Wild Fauna and Flora (CITES) under which international trade in endangered species and their parts and derivatives is strictly regulated; (vi) Rewards are given to informers for gathering intelligence regarding illegal trade and smuggling of wildlife products. (vii) Regional and Sub-regional offices of Wildlife Preservation have been set-up mainly at the major export centres of the country to prevent illegal trade and smuggling of wildlife products. 35. Similarly, Questions and Answers dated 04.09.2012 in Rajya Sabha ( Annexure - P15 to the writ petition ) under the heading Export of exotic birds shows the details of export from India of exotic birds during 2009 to 2012, in answer to question No. 2512 as follows- Sl. No. Species Birds exported during the year (Number) 2009 2010 2011 2012 1 Budgerigar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion does not permit the Court to direct or advise the executive in matter of policy or to sermonize any matter which under the Constitution lies within the sphere of the Legislature or the executive, provided these authorities do not transgress their constitutional limits or statutory power . So observed the Supreme Court in Ashif Hamid v. State of J K [1989] 3 SCR 19 Judicial enquiry is confined to whether the decision taken by the Government is against any statutory provisions, or whether it violates the fundamental rights of the citizens, or whether it is opposed to the constitutional provisions - cautions the Supreme Court in State of Orissa v. Gopinath Dash - AIR 2006 SC 661. Even if the Government's decision does not appear to be aggreable to the Court, it cannot interfere. 58. In Parisons Agrotech (P) Ltd. v. Union of India - (2015) 9 SCC 657 = 2015 (323) E.L.T. 3 (S.C.), the Supreme Court has held that once the court finds that there is sufficient material for the Government to take a particular policy decision, even by bringing Article 14 of the Constitution inito play, courts cannot judicially review and determine the correctness of the policy dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith assistance of WCCB officials, at the shops, residences, breeding farms and all such places within India, where exotic animals/birds are kept or traded or being transported, whether for breeding or otherwise. 'Seizure' has to be in accordance with Section 110 of the Customs Act, 1962. Existence of 'reasonable belief' that the concerned goods would be liable to confiscation, is a sine qua non for any valid seizure under Section 110. Any confiscation would be governed by the principles governing onus of proof in town seizures. Thus, confiscation or town seizure would not be authorized by law, when it would be merely on suspicion that an exotic bird in possession of a person within India may have been smuggled into India, on the basis such as - that person is not an importer, or is not having any proof of any valid importation under a License/ CITES permit or proof of duty payment or any reliable purchase voucher or proof of any other legal acquisition or on the strength of oral statements of any other co-accused. In such situation, mere 'acquisition', 'purchase', or 'possession of the exotic animals or exotic birds, shall not i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end Wildlife (Protection) Act, 1972 or Customs Act, 1962. At the point of Import/Export, a Customs/DRI officer has jurisdiction to detect and prevent International Trade, i.e., import/ export of live animals and birds into or out of India, if found in violation of the provisions of Customs Act, 1962 read with the 'CITES' and Foreign Trade Policy. Thus, any live animals and birds, while being smuggled through the Indian Customs Frontiers, can be seized at the point of Import/Export by DRI/Customs and the concerned persons can be subjected to penal and confiscatory provisions in accordance with the provisions of the Customs Act, 1962. There is no restriction on domestic trade, keeping, captive, breeding, buying, selling and exhibiting 'exotic animals/exotic birds' within India, either under the Wildlife (Protection) Act, 1972 or under the Customs Act, 1962 or under the Foreign Trade (Development Regulation) Act, 1962 or CITES. Any person in possession of 'exotic animals/exotic birds' within India, is not bound to comply with the requirements of Section 11C to 11F of the Customs Act, 1962 regarding intimation of place of storage, precautions to be taken in ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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