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TMI Blog2021 (12) TMI 493X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. - Criminal Petition No. 339 of 2021 - - - Dated:- 6-12-2021 - Hon ble Mr. Justice Hitesh Kumar Sarma For the Petitioners : Mr. D Saikia, Sr. Advocate, Mr. KK Dutta, Ms. P Baruah For the Respondent : Mr. SC Keyal, Standing Counsel, Customs Department JUDGMENT ORDER (CAV) This criminal petition has been filed under Section 482 of the Cr.PC seeking quashment of Customs case No. 05/CL/IMP/CUS/CPF/NML/2020-2021 dated 15.03.2021 pending in the court of the learned Chief Judicial Magistrate, Golaghat. [2] Heard Mr. D Saikia, learned senior counsel for the petitioners. Also heard Mr. SC Keyal, learned Standing Counsel, respondent/Customs Department. [3] The fact of the case is that on 14.03.2021, at about 23:30 hours (11:30 pm), a flying squad from Ghiladhari Police Station recovered 8 (eight) silvery marmosets, 2 (two) golden headed lion tamarins and 2 (two) lutino blue and gold macaws from a Scorpio vehicle bearing registration No. AS-01/EA-4707 travelling from Merapani to Golagha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposed under this Act or any other law for the time being in force with respect to such goods; or (b) acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under Section 111 or Section 113, as the case may be; or [7] Section 135 (b) of the Customs Act, 1962 provides that if any person acquires/possesses/purchases/sells which he knows or has reason to believe are liable to confiscation under Section 111 or under Section 113, as the case may be, the same is made punishable with imprisonment with fine. [8] Referring to the said provisions, Mr. Saikia has contended that for confiscation of improperly imported goods under Section 111 of the Customs Act, 1962 such goods must be dutiable or prohibited goods. Similarly, as submitted by him, for confiscation of goods attempted to be improperly exported must fulfil certain conditions which are not in existence in the case at hand. [9] Learned senior counsel Mr. Saikia, has also canvassed before this Court that for any go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icy under Section 1 of Chapter-1: Section I Live Animals; Animal Products issued under the Foreign Trade (Development and Regulation) Act, 1992. Serial No. 01061100 Primates and Serial No. 01063200 Psittaciformes (including Parrots, Parakeets, Macaws and Cockatoos) of the said Schedule have been referred to by Mr. Keyal, to bring home a case for the respondent that the seized birds and animals are prohibited as per aforesaid Foreign Trade (Development and Regulation) Act, 1992. [13] In this regard, Mr. Saikia, learned Senior counsel for the petitioners has submitted that both Primates and Psittaciformes under Serial Nos. 01061100 and 01063200 are qualified by the remarks, in the last column of the Schedule itself, that these live animals are subject to Policy Condition No. 6 of the Chapter . The Policy Condition No. 6 aforesaid is quoted below for convenience: (6) Import of Wild Animals (including their parts and products) as defined in the Wild Life (Protection) Act, 1972 (as amended from time to time) is prohibited and those species which are listed in CITES are subject to the provisions of CITES. From the above Policy Condition, it is clearly noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the Hon ble Supreme Court in the case of Om Prakash Bhatia vs- Commissioner of Customs, Delhi , reported in (2003) 6 SCC 161 specifically paras 7 to 11 thereof. The relevant paras of the above judgment are quoted below:- 7. Next - as the order for confiscation of goods is passed by referring to Section 113(d) of the Act, we would refer to the same. It reads as under: 113. Confiscation of goods attempted to be improperly exported etc.- The following export goods shall be liable to confiscation:- (d) any goods attempted to be exported or brought within the limits of any customs area for the purpose of being exported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force. 8. The aforesaid Section empowers the authority to confiscate any goods attempted to be exported contrary to any 'prohibition' imposed by or under the Act or any other law for the time being in force. Hence, for application of the said provision, it is required to be established that attempt to export the goods was contrary to any prohibition imposed under any law for the time being in force. 9. Further, Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expression any prohibition in section 111 (d) of the Customs Act, 1962 includes restrictions. Merely because Section 3 of the Imports and Exports (Control) Act, 1947, uses three different expressions prohibiting , restricting or otherwise controlling , we cannot cut down the amplitude of the word any prohibition in Section 111(d) of the Act. Any prohibition means every prohibition. In other words all types of prohibitions. Restriction is one type of prohibition. From item (I) of Schedule I, Part IV to Import Control Order, 1955, it is clear that import of living animals of all sorts is prohibited. But certain exceptions are provided for. But nonetheless the prohibition continues. 11. The next question is - Is there any prohibition imposed under other law which is for the time being in force? [17] In support of his contention, Mr. Saikia, learned Senior counsel for the petitioners has relied on the following judgments: A. Anil Naidu vs- Union of India in Criminal Writ Petition (WP) No. 807/2019 by the High Court of Judicature, Bombay, Nagpur Bench vide order dated 11.09.2019. The relevant portion of the order referred to by the learned Senior counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n) 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 acquiring, maintaining accounts or sale, as they are not notified under Section 11B. Similarly, mere 'acquisition', 'purchase', or 'possession' of the exotic animals or exotic birds within India, shall not invite any penal consequences under the Customs Act, 1962 or Wildlife (Protection) Act, 1972. C. Imran Latif Shirgawkar vs- Directorate of Revenue Intelligence Ors. in Writ Petition No. 4779/2019 by the High Court of Judicature at Bombay vide order dated 27.09.2019. Learned Senior counsel for the petitioners has referred to para 16 thereof which is quoted herein below:- 16..........there is no notification under Section 135(1)(i)(c) of the Act specifying the exotic animals as prohibited goods.......... D. V. Muniyandi vs- Commissioner of Customs, Chennai , reported in 2004 SCC Online CESTAT 3228: (2004) 167 ELT 215 by the Customs Excise and Service Tax Appellate Tribunal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are three essential Ingredients of the offence under Section 167(8) of the SCA or under Section 123 of the Customs Act and they are: (1) that the importation of certain goods has been prohibited or restricted; (2) that the goods in question, belonging to such category, have been imported into India i.e. the goods are of foreign origin; (3) that such importation has been contrary to such prohibition or restriction. Unless all the three ingredients are proved by the Department, the offence is not established. In other words, even if the import of a particular commodity has been prohibited for quite some time and it is also proved that the seized goods of that commodity are of foreign origin, it would not be sufficient evidence to hold that the goods seized are smuggled unless there is evidence which conclusively leads to the inference that the said goods were imported into the country to any prohibition or restriction. It has been held that the circumstances that a person makes inconsistent statement regarding the manner in which he came into the possession of the articles recovered from him, or that he did not maintain proper account to show the purchas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the seized goods to justify an inference of smuggling, for valid confiscation of seized goods. The DRI miserably failed to discharge this burden to prove smuggled nature of seized goods by adducing any such evidence, which can conclusively lead to the inference that the seized goods were imported contrary to any prohibition or restriction, or by evading duty. The DRI failed to justify with evidence, unauthotized importation of the seized goods, in any manner, and instead sought to shift the burden upon the Appellant to prove that the goods were not smuggled. Such a course was not available to them as per settled position of law. We hold that in the instant case, concerning the seized goods, not even a shred of evidence is adduced by the Department to show their illegal importation by breach of any customs barrier, and the onus cannot be shifted on the Appellant. The formal seizure of Copper cathode and Zinc Ingots after more than 4 months of their verification and just 2 days prior to issuance of SCN, that too after the Appellant plated on record the Board Instructions dated 14-12-1965 in the SLP filed by him, shows glasing abuse of power by DRI. It is evident that even such belate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. [18] From the arguments advanced by the respective learned counsel for the parties, on facts as well as on law, as indicated above, it appears that the seized animals and birds are not prohibited goods under any other law as provided in Section 2(33) of the Customs Act, 1962. We have already discussed and found 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, referred to above. Therefore, the seizure of the birds and ani ..... X X X X Extracts X X X X X X X X Extracts X X X X
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