The Tripura High Court dismissed a Public Interest Litigation (PIL) with a prayer to seek issuance of show cause to the respondents as to why a writ like Mandamus shall not be issued declaring that possession of all exotic animals/ birds by persons (other than those who have made voluntary disclosure with the time contemplated in Advisory issued by Union of India (Respondent No. 1), is illegal and the person in possession of such exotic animals/ birds be forthwith prosecuted for violation under the Customs Act by Department of Revenue Intelligence and under the Wild Life (Protection) Act, 1972.
The Petitioner (a law graduate) relies upon news articles to demonstrate that there is proliferation of trade in exotic wildlife species in the State.
The Petitioner submitted that Birds and Animals can be categorized under following heads via
a) Indigenous/ local or Indian animal species and
b) Exotic/ Foreign or non-Indian animal species.
It is further submitted by the Petitioner that there is no provision/ prohibition under the Wild Life (Protection) Act, 1972 qua the second category. Petitioner further submits that Respondent No. 1 issued an Advisory dated 11.06.2020 for dealing with import of exotic live species in India and declaration of stock within six months of the issuance of the Advisory.
The Division Bench of Chief Justice Indrajit Mahanty and Justice S.G. Chattopadhyay have examined the Advisory which is essentially concerning 4 issues:
a. Developing an inventory of exotic live species in India through Voluntary Disclosure Scheme to streamline CITES compliance.
b. Procedure for import of exotic live species.
c. Registration/ Declaration of progenies of the imported exotic live species,
d. The processes under this Advisory shall be dealt online through the Parivesh Portal.
The Bench held that the Advisory is an executive direction to maintain inventory of exotic species and regulate the import of such species. The exemption that is provided in the Advisory is limited to dispensation with explanation of source of exotic species. Consequence of non-declaration within the time stipulated in the Advisory is that the owner of exotic species is required to comply with all requisite documentation under the extant laws and regulation.
Further the Court observed that there is no change in the statutory provisions in this regard to the period pre or post advisory. The judgment dated 11.09.2019 of Bombay High Court in the matter of Anil Naidu Versus UOI (Writ Petition No. 807 of 2019) as well as the judgment dated 30.08.2019 passed by the Allahabad High Court in the matter of Dinesh Chandra Versus UOI (PIL Civil 22903 of 2019), which clarify the position in regard to the inapplicability of the penal provisions of Wild Life Act, 1972 and the Customs Act 1962 in regard to exotic species continue to apply as per extant laws and regulations despite advisory dated 11.06.2020.
As per settled position of law in various judgments the Bench noted as per the extant laws and regulations-
(i) Domestic trade, possession, transportation and breeding of undeclared exotic animals/ exotic birds within India continues to be out of the purview of Wildlife (Protection) Act, 1972.
(ii) There is no reverse burden to prove licit importation into India, because such undeclared exotic species are not included in Notifications issued under Section 123 of the Customs Act, 1962.
(iii) The undeclared ‘exotic animals/ birds’ continue to be out of purview of provisions of chapter IVA- Detection of illegally imported goods and prevention of disposal thereof, containing Sections 11A to 11G, as they are not notified under Section 11B. Thus, the person in possession of undeclared ‘exotic animals/ Birds would continue to be not bound to comply with 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 thereof.
(iv) The offence concerning exotic live species under Customs Act, 1962 continues to be ‘bailable’ under Section 104(7) of the said Act, in absence of any notification under Section 135(1)(i)(c) of Customs Act, 1962 notifying exotic animals/ birds as “prohibited goods” (as issued in case of Fake Indian Currency), and bail continues to be statutory as well as fundamental right.
“Despite the above settled legal position continuing even for the undeclared stock of exotic species, Court can neither legislate, nor direct Government to legislate in a particular manner. The Court cannot direct the Central Government to forthwith make amendments against legislative will to include all exotic species in the Wild Life (Protection) Act, 1972 and also in the Notifications issued under Section 11B, 123 and 135 of the Customs Act, 1962.
Court can neither direct seizure/ confiscation contrary to existing provisions, nor can direct change in classification of such bailable offence to non-bailable offence, to enable arrest and prosecution of all the persons concerned with such undeclared stock of exotic animals / exotic birds”, observed the Bench.
“Large number of citizens across the country commonly own pets such as dogs, cats, birds, rabbits etc which may also belong to exotic species and might have been purchased or procured from those involved in captive breeding. Such pets may number in millions and also breed.”
The High Court have considered the submissions of the petitioner about suggested wiping out of the distinction between exotic species and indigenous species by directing or at least recommending amendments in the two Acts.
The Court is of the view that it can neither direct, nor expect the Government to take such drastic steps in haste, without assessment of impact and without detailed study. Such amendments in statutory provisions which may result in drastic penal action against common man cannot be directed or even recommended as prayed by the petitioner.
The petitioner effectively wants that even all such exotic pets in domestic possession will have to be forfeited and housed by the government and their owners shall be arrested, imprisoned and prosecuted under wild life Act and compelled to disclose the source under Customs Act, 1962.
The step suggested by the petitioner will have very wide and far reaching ramifications. The Court cannot lose sight of the fact that most people possessing such exotic species are animal lovers and over time such exotic species become a part of the family like a child in the house.
The Bench reiterated that there are sufficient safeguards available in law to prevent cruelty to animals which are also applicable to exotic species. Directing the amendments in the two Acts as suggested or even to suggest the Respondents to legislate such amendments, would lead to chaos and no public purpose will be achieved.
Even otherwise in light of the judgments discussed above the Court cannot direct the Central Government and the Central Board of Indirect Taxes to forthwith make amendments against legislative will to include all exotic species in the Wild Life (Protection) Act, 1972 and also in the Notifications issued under Section 11B, 123 and 135 of the Customs Act, 1962. Court can neither direct seizure/ confiscation contrary to existing provisions, nor can direct change I classification of such bailable offence to non-bailable offence, to enable arrest and prosecution of all the persons concerned with such undeclared stock of exotic animals / exotic birds.
The Court was unable to agree with the submission of the petitioner that failure to arrest/prosecute such a person who did/could not make declaration within the time stipulated in advisory would frustrate the purpose of the Advisory.
“Unless a person is caught smuggling exotic species on the international borders, no presumption can be drawn that domestic keeper have illegally imported the exotic species on the ground that such person has not declared ownership of exotic species within the stipulated time, or has acquired such species after the stipulated time, for any arrest/prosecution/confiscation based on presumption would be unreasonable and violation of rights guaranteed under Article 14 and 21 of Constitution of India,” the Bench observed in conclusion.