Dismissed

Vivek Swami S/O Dhirendra Kumar Swami v. Union of India

Rajasthan HC14 Oct 2020CW/7491/2020

Case brief

AI extract

What is this about?

The petitioner challenged the validity of using Section 108 of the Customs Act to summon individuals during the government's Voluntary Disclosure Scheme for exotic live species. The Court held that Section 108 is intra vires but cannot be used to compel declarations that would defeat the immunity promised under the voluntary scheme.

What did the court decide?

Prayer impugning Section 108 implicitly dismissed; order held against initiating proceedings against declarants under the scheme.

Vivek Swami S/O Dhirendra Kumar Swami Vs Union… — Environment and Pollution | Rajasthan HC (2020)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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D.B. Civil Writ Petition No. 7491/2020

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Vivek Swami S/o Dhirendra Kumar Swami, C-101, Pearl Green Acre Apartment, Near Gopal Pura By-Pass, Shri Gopal Nagar, Jaipur, Rajasthan 302019.

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----Petitioner

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Versus

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Union Of India, Through Secretary Revenue Department Of Revenue Ministry Of Finance North Block, New Delhi.

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Central Board Of Indirect Taxes, Through Its Chairman, North Block, New Delhi.

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Directorate Of Revenue Intelligence, Through Director General, I.P. Bhavan, I.P. Estate, New Delhi.

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Ministry Of Environment, Forest And Climate Change, Through Director General Forests New Delhi.

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Wildlife Crime Control Bureau, Through Its Addl. Director, IInd Floor, Trikoot-I, Bhikajicama Place, New Delhi110066.

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Central Bureau Of Investigation, Through The Director, Plot No. 5-B, CGO Complex, Lodhi Road, New Delhi110003.

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State Of Rajasthan, Through Public Prosecutor High Court, Jaipur.

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----Respondents

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For Petitioner(s) : Mr. Karan Bharihoke through Video Conferencing Mr. H.V. Nandwana through Video Conferencing.

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For Respondent(s) : Mr. R.D. Rastogi, Additional Solicitor General through Video Conferencing.

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HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE PRAKASH GUPTA

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[CW-7491/2020]

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JUDGMENT RESERVED ON :: 29/09/2020 JUDGMENT PRONOUNCED ON :: 14/10/2020

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BY THE COURT(PER HON’BLE THE CHIEF JUSTICE):

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The petitioner, namely one Vivek Swami claiming to be an animal and bird lover, has filed the present writ petition styled as a Public Interest Litigation with the following prayers:-

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“(a) To issue an appropriate writ, order or direction, to declare Section 108 of the Customs Act, 1962 as ultra vires on the vice of Article 14 and 21 of the Constitution of India for being manifestly arbitrary or to read down, clarify or expound the scope of the said impugned Section 108 of the Customs Act, 1962, to save it from unconstitutionality;

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(b) To issue a writ of mandamus or in the nature of mandamus to the Respondent No.2 to issue suitable Circular/Instructions to enable the citizens in domestic possession of exotic species to make declaration under the voluntary disclosure scheme without any fear of actions under the customs Act, 1962;

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(c) To issue a writ of prohibition, or any other writ, order or direction, prohibiting the officers of the Respondent No.2 and 3 from summoning the petitioner under Section 108 of the Customs Act, 1962 for seeking any information relating to the acquisition of the exotic species in possession of the petitioner in respect of which the petitioner is contemplating filing of a declaration under the Voluntary Disclosure Scheme issued by the Central Government vide the Advisory (at Annexure-2);

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(d) To issue a writ of prohibition, or any other writ, order or direction, prohibiting the officers of the Respondents from taking any action of summoning the petitioner in connection with inquiry or seizure/confiscation of exotic species in domestic possession, under any law, to enable the petitioner to avail an opportunity to make its declaration under the prescribed format under the Voluntary Disclosure Scheme introduced by the Central Government;

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(e) At the interim/ad-interim stage, pending final disposal of the instant writ petition, the Respondents may please be restrained from initiating any proceeding under the provisions of Customs Act, 1962 or any other law, either for summoning the petitioner or for seizure of the exotic species lying with the petitioner,

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(f) Pass such further Order(s) as this Hon’ble Court may deem fit and proper in the circumstances of the case.”

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It appears from the pleadings that the Government of India, Ministry of Environment, Forest and Climate Change has issued an Advisory on 11.06.2020 (Annexure-1) under the heading “Government issues advisory to streamline the process for import and possession of exotic live species in India” and thereafter in furtherance thereof, a Voluntary Disclosure Scheme was issued by the Wildlife Division, Government of India under Annexure-2. The Voluntary Disclosure Scheme is apparently issued for the purpose of collecting stock information for persons who have in their possession “exotic live species” i.e. exotic live animals and birds within India through such voluntary disclosure and limited such disclosure upto the period till December, 2020. Such scheme was evolved by the Government of India since it did not possess necessary information of such stock of exotic species either by the State or the Union.

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On perusal of the Voluntary Disclosure Scheme, it appears that options have been provided to persons to avail the benefit of the scheme within the stipulated time limit of six months and thereafter to maintain statutory records of addition or deletion in any declared stock of “exotic live species”. The clear object behind the collection of such data appears to be to enable the Government to have necessary information/data, which would assist the Government to protect the wild fauna as well as protecting public interest.

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(4 of 13) [CW-7491/2020]

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In terms of the Voluntary Disclosure Scheme, the declarant would not be required to produce any documentation in relation to the “exotic live species”, if such information has been provided to the Government in terms of the declaration appended to such scheme i.e. within six months from the date of issue of advisory. It appears from the said scheme that once the declaration is made by the declarant, he/she would be obliged to maintain such records and would subject himself/herself to such reporting and licensing requirements under the scheme in terms of the procedure prescribed. Whereas Para (I) of the advisory deals with disclosure of “exotic live species” in India through Voluntary Disclosure Scheme, Para (II) of the advisory deals with import of exotic live species and stock maintenance.

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Apart from issuing the aforesaid advisory, Standard Operating Procedure (SOP) has been made out, which is required to be followed by an applicant and it appears that online help desk, titled as “ Parivesh Help Desk” has also been created by the Government to enable the Central Government to regulate and monitor the voluntary disclosure, and if such disclosure is not made voluntarily by a person in possession of exotic birds and animals, no immunity is contemplated for those who do not make the declaration within the period stipulated under the said Voluntary Disclosure Scheme.

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From Para (I) of the scheme, it is clear therefrom that in sub-para (b), it is stated through this advisory that the declarer would not be required to produce any documentation in relation to the exotic live species if the same has been declared within six

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months of the date of issue of the advisory. For any declaration made after six months after the date of issue of advisory, the declarer shall be required to comply with the documentation requirement under the extant law and regulations.

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The petitioner, who claims to be an animal and bird lover claiming to have “exotic live species” in his domestic possession, has invoked the jurisdiction of this Court based on an apprehension that in the event of or before filing of the declaration under the advisory issued by the Government of India under the Ministry of Environment Forest and Climate Change, the Customs Authorities/ DRI may exercise powers under Section 108 of the Customs Act, 1962 and to initiate coercive measures thereunder.

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The petitioner has referred to and relied upon the judgment dated 30.08.2019 delivered by the Division Bench of the Allahabad High Court in PIL Civil No.22903/2019, Dinesh Chandra Vs. UOI, in support of his submissions regarding legal position prevailing with regard to domestic possession, acquisition, trade, breeding, transportation as against the international trade of exotic species, which is extensively dealt with in the said judgment.

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On the other hand, Mr. R.D. Rastogi, learned Additional Solicitor General has opposed the challenge to the validity of Section 108 of the Customs Act, 1962 and submitted that validity of the provisions of Section 108 is beyond any reasonable doubt and the prayer made in this respect ought to be outrightly rejected. He further submitted that neither any action was initiated against the petitioner under the Customs Act or any other

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(6 of 13)

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Act, nor any such application under the Voluntary Disclosure Scheme has been specifically pointed out in the petition. He, therefore, submitted that the petition itself is premature, inasmuch, as the petitioner has sought to invoke writ jurisdiction, merely on the basis of his apprehension, without there being any initiation of any action against him. He, therefore, submitted that the petitioner ought to have first made a declaration and only if such declaration is made, summons would be issued to him for any enquiry concerning the acquisition of the declared stock, he then could have sought for any statutory relief available under the law and/or invoke the writ jurisdiction. He further submitted that the apprehension advanced is without any foundation.

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We have perused the records and carefully considered the submissions advanced by the parties. 11. We are of the view that writ jurisdiction under Article 226 of the Constitution of India can be exercised even to protect the apprehended violation of right or to enforce statutory duty. The advisory introduced by the Central Government is in public interest and for a limited period of six months. We do not find it just and expedient to consider the apprehension raised by the petitioner and deal with the issue raised on their own merits.

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On the basis of the pleadings filed before this Court, following facts are not in dispute:-

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(a) The Government’s advisory under Annexure-1 and Annexure-2 clearly shows that “exotic live species” are animals or plant species moved from their original range (location) to a new place. In other words, these species are introduced into a new

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(7 of 13) [CW-7491/2020]

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location most often by the people. It appears from the clarification made by the Government in para-I(a) of the advisory that the term “exotic live species” used in this advisory shall be construed to mean only the animals named under Appendices I, II and III of the Convention of International Trade in Endangered Species (CITES) and does not include the species from the Schedules of the Wild Life (Protection) Act, 1972

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(b) In the Wild Life (Protection) Act, 1972, there are various provisions to prevent and penalise any possession, trade, captive, breeding and transportation of all wild animals/birds listed in the schedules of the said Act. Clearly the term “exotic live species” is not covered under the Wild Life (Protection) Act, 1972.

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(c) The Customs Act, 1962 as well as the Foreign Trade (Development and Regulation) Act, 1992 are applicable only, qua “International Trade of exotic live species” and India is signatory to the Convention of International Trade in Endangered Species of Wild Fauna and Flora (CITES). The CITES is an International Convention aimed and ensuring that international trade of wild animals, birds specified in various appendices available thereto, does not threaten their existence and their native habitats. The enforcement of CITES provisions at the point of import or export is by Custom/DRI Officers.

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(d) The enforcement of CITES provisions within India at any place other than the point of import/export is carried out by the State/Union Territories. The Wild Life Department is headed by the Chief Wildlife Warden under the Wild Life (Protection) Act, 1972, however it is clear therefrom that such officers have no

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jurisdiction in the matter of possession, breeding domestic trade/ transportation of “exotic live species”, since the same is not covered by the Wild Life(Protection) Act, 1972.

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(e) The term “exotic live species” has not been notified under Section 11(B) of the Customs Act, 1962. Thus, a person in possession of “exotic live species” is not required to comply with Section 11 (C) to Section 11(F) of the Customs Act, 1962 regarding intimation of the place of storage, precautions to be taken in acquiring and maintaining the accounts or sale thereof. Further, in absence of the term “exotic live species” being covered under Section 123 of the Customs Act, 1962.

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(f) The possession, breeding, transportation and domestic trade of the “exotic live species” within India appears to have grown in massive proportions without there being any effective control or restriction, specifically in the absence of any statutory term worked in this regard.

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At the present juncture, the advisory issued by the Ministry of Environment, Forest & Climate Change sought to bring within its control such “exotic live species” since there was no requirement to maintain any statutory record of possession, acquisition, storage, captive breeding and domestic trade of wild animals/birds within India under the Wild Life (Protection) Act, 1972, the Customs Act, 1962, the Code of Criminal Procedure nor the Indian Penal Code.

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Therefore, it appears that the Government of India in the absence of any regulation to cover “exotic species” appears to have framed the scheme of Voluntary Disclosure (Annexure-2) and

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(9 of 13)

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provide for making declarations, whereby the declarant would not be required to produce any documentation in relation to “exotic live species” in its possession, provided the same is declared within six months from the date of issue of advisory. It is clear from the advisory that any declaration made after six months from the date of issue of such scheme, a declarant would be required to comply with the documentation requirements under the extant laws and regulations. Therefore, persons who are holders of such exotic species in the country within India are required to upload the requisite form on the official website of the Government of India in order to complete the stock registration process. Such registration will be done for the stock of animals/new progeny as well as for import and exchange. The clear object of the same appears to be to render assistance to the Government of India for better management of such exotic species and further to keep control over and guide the holders of such exotic species with proper veterinary care, housing and other aspects of well being of such species. Once the database for exotic species is available with the Government of India, it would assist it in effective control and management of zoonotic diseases and whose guidance would be available from time to time for ensuring safety of animals and humans.

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The apparent objective behind the scheme further appears to be to streamline the CITES compliances and provide procedure for import of “exotic live species” and requires their registration/declaration of the progenies of such imported “exotic live species”.

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(10 of 13) [CW-7491/2020]

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Insofar as the Voluntary Declaration Scheme is concerned, the Hon’ble Supreme Court in Hira Lal Hari Lal Bhagwati Vs. CBI, New Delhi, (2003) 5 SCC 257, although in the context of another Voluntary Disclosure Scheme, observed as follows:-

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“30….The true fact and import of the Kar Vivad Samadhan Scheme, 1998, in our view, is that once the said Scheme is availed of and all the formalities complied with including the payment of the duty, the immunity granted under the provisions of the Customs Act, 1962 also extends to such offences that may prima facie be made out on indentical allegations i.e. of evasion of customs duty and violation of any notification issued under the said Act.”

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“44…..The declarant could not be dragged and chased in criminal proceedings after closing the other opening making it a dead end. It is highly unreasonable and arbitrary to do so and initiation and continuance of such proceedings lack bona fides.”

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We are, therefore, of the considered view that if any voluntary disclosures made under the scheme introduced by the advisory is used for initiation of any proceeding against a declarant under the Customs Act, 1962, or any other law, the same would lack bona fides.

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Once a person has made a declaration under the Voluntary Disclosure Scheme under Annexure-1 & Annexure-2, the immunity provided under the said advisory scheme introduced by the Government of India cannot be set at naught by use of Section 108 of the Customs Act, 1962, in order to compel a declarant to divulge the information in respect of such immunity, as promised to the declaration under the Voluntary Disclosure Scheme by the Central Government. It is clear therefrom that

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once a person has made a declaration under the Voluntary Disclosure Scheme under Annexure-1 & Annexure-2, such persons cannot be proceeded against on the basis of information provided in such declaration and it would not be proper to allow any investigation under the provisions of the Customs Act, 1962, to be initiated at-least till the limited time provided under the Voluntary Disclosure Scheme in order to make declaration thereunder. No officer far less to that of Custom, DRI, WCCB and police authorities can act in any manner in order to deprive any person from availing the opportunity to become a declarant under the Voluntary Disclosure Scheme i.e. upto six months from the date of promulgation of Annexure-1 & Annexure-2 and such applicant cannot be compelled to divulge any information related to the acquisition of such “exotic live species” available in his domestic possession, in respect of which he intends to or seeks to file a declaration under the Voluntary Disclosure Scheme issued by the Union Government under Annexure-1 & Annexure-2. Under such scheme, a declarer who files a declaration of course within the time stipulated therunder, cannot be made subject to any action under the Customs Act, 1962 or any other law in respect of the stock in the guise of any charge of smuggling or dealing in or possessing the smuggled exotic species, whether on conjectures or surmises, or on the strength of any oral statement.

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Since the Union Government acting through the Ministry of Environment, Forest and Climate Change for granting immunity, though for a limited period of six months from the date of issue of such notification to the public at large, the object behind such Voluntary Disclosure Scheme being in larger public

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(12 of 13) [CW-7491/2020]

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interest, is required to be promoted by all Government Departments in order to ensure that any declarer under the scheme is not subjected to any other penal or confiscation under any enactment. If any action is initiated, in such circumstances within the period stipulated in the notification, the same would be clearly, manifestly arbitrary and illegal.

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It would be pertinent herein also to take note of the judgment of the Hon’ble Supreme Court in D.K. Basu Vs. State of West Bengal (1997) 1 SCC 416 and in A. Tajudeen Vs. Union of India (2015) 4 SCC 435, wherein their Lordships have noted various instances of compelled testimony by misuse of provisions such as Section 108 of the Customs Act, 1962, therefore, misuse cannot be ruled out. However, we are of the considered view, that any possibility of abuse of power conferred under Section 108 cannot be a ground to challenge the vires of Section 108 and one cannot deal with the same as manifestly arbitrary, unreasonable, unfair or unconstitutional. Section 108 of the Customs Act, 1962 is an important power conferred upon the Custom Officers for investigation under the offences punishable under the Act for recording voluntary statements.

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We make it clear that we have only dealt with the use of Section 108 of the Customs Act, 1962 in the context of aforesaid Voluntary Disclosure Scheme issued by the Government of India under the Ministry of Environment, Forest & Climate Change vide its notification dated 11.06.2020 under Annexure-1 and Annexure-2 alone.

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It may also be appropriate herein to clarify that any seizure/confiscation of exotic live species being smuggled into

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(13 of 13) [CW-7491/2020]

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India or out of India at the entry or exit point should continue unhindered even within six months from the date of issue of the advisory as Voluntary Disclosure Scheme only applies to declaration of only stock of “exotic live species” in the possession of an applicant within India and not in the course of export or import.

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In view of the above, we hold that Section 108 of the Customs Act, 1962 is intra vires accordingly declining the prayer impugning the said provision.

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The petitioner or any other applicant seeking to avail the Voluntary Disclosure Scheme within time prescribed by making voluntary declaration of such exotic live species in his domestic possession and subjecting himself to future regulatory requirements, shall be entitled to the immunity promised under the scheme and thus, should not act on the basis of any apprehension, such as seizure, summon, confiscation, enquiry in relation to such declared exotic species in domestic possession neither under Customs Act, 1962 nor any other law.

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Insofar as the prayer for issuance of circular in this regard is concerned, we refrain from issuing any such direction, as prayed for, while leaving the same to the wisdom and discretion of the appropriate departments including the Central Board of Indirect Taxes.

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With such observations, as noted hereinabove, the writ petition stands disposed of. All pending applications also stand disposed of.

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(PRAKASH GUPTA),J

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(INDRAJIT MAHANTY),CJ

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KAMLESH KUMAR /

Vivek Swami S/O Dhirendra Kumar Swami v. Union of India

Case brief

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Vivek Swami S/O Dhirendra Kumar Swami v. Union of India

Case brief

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