Full Judgment
2. After getting concurrence from Shri Mondal, the ld. SDR, for the appeal being taken up for hearing, we have decided to go into the appeal itself.
3. Shri Nair submitted that the appellants arc a circus company. They had been to Kuwait for performing the circus. At that time, the sponsor presented a gift of Chimpanzee in an open function. The Embassy officials were also present in the function. The first Secretary of Indian Embassy in Kuwait has given a letter for rendering all possible assistance to the appellant for the Chimpanzee to be taken to India by the appellants. On arrival in India, the appellants applied for a Customs Clearance Permit. They also applied to the Stale Chief Conservator of Forests, and Chief Wild Life Warden, who has given no objection for issue of the licence by the Import Licensing Authorities.
On that basis, CCP has been issued but with a stipulation that 'CITES' certificate Convention on International Trade in Endangered Species of Wild Fauna and Flora) be produced. However, when the appellants approached the Ministry of Environment and Forest for issue of such certificate, they refused to issue the certificate Ex-post-facto after the importation. They also advised the appellants to approach the Collector of Customs, before whom the matter was pending. Thereafter, the Addl. Collector, in the adjudication proceedings confiscated the Chimpanzee absolutely and also imposed a penalty of Rs. 5000/-. Shri Nair took us through the various documents to argue that there was absolutely no mala fide in import of Chimpanzee by the circus company.
He also referred to a certificate termed as 'CITES' given by the sponsor, who has gifted the Chimpanzee. The appellants had bona fide belief that all the documents required for the import of Chimpanzee were held by them and they also applied for the import Licence and no objection from the Chief Wild Life Warden was obtained. Shri Nair also referred to para 108 of the Import Policy governing import of Animals, Birds and Reptiles. According to this para, the concerned importer have to obtain the recommendation of the Chief Wild Life Warden of the State concerned. This has been obtained in this case. The only requirement is the certificate of CITES from the Ministry of Environment. The Policy only prescribes inspection by the Ministry of Environment and Forests, Government of India. However, the licence indicates the requirement of production of CITES certificate. He contended that the Chimpanzee was kept in the care of the appellants for nearly 4 months after import, when the same was taken care of by the trainers and it was happy in that surrounding. Now the same is languishing in the Delhi Zoo. Even if it is held that there is a contravention of the condition prescribed in the Import Licence, on account of which the animal is liable for confiscation, there is no justification for absolute confiscation.
Having regard to the pitiable condition of the Chimpanzee, the authority below ought to have ordered release of the same on suitable redemption fine, if not on a warning.
4. Shri Mondal, on the other hand contended that the Customs authorities are bound by the conditions prescribed in the licence. It is not disputed that the condition prescribed in the licence is not complied with. Hence, the liability to confiscation, stands justified.
He also referred to the 'CITES' convention, wherein it is laid down that such confiscated animal has to be entrusted to the Management authority of the Slate of confiscation, who shall, after consultation with the State of Export, return the specimen to that State at the expense of that State, or to rescue centre or such other place as the Management Authority deems appropriate. Hence, the choice of release vests with the Management authority and the Customs have no authority.
5. After hearing both the sides, first dealing with the aspect of penalty, we observe that on the basis of the documents, through which we have been taken, we are convinced that the appellants were gifted with the Chimpanzee and even the Embassy of India at Kuwait has given them a letter requesting the authorities to extend necessary help in taking the gifted Chimpanzee to India. The appellants have also approached the Chief Wild Life Warden of the State Government who has recommended the issue of licence. They have also obtained the necessary CCP but with a stipulation for production of CITES certificate. In these circumstances, we feel just and proper to remit the penalty, having regard to the various steps taken by the appellants in complying with the requirement of law.
6. On the question of confiscation, as rightly pointed out by the ld.SDR, the Customs authorities are bound by the wordings of the licence and the conditions prescribed and they have no choice to by-pass the condition and when a specific condition is laid down that 'CITES' certificate is required to be produced, it is to be complied with. If it is not complied with, the import is to be held as unauthorised.
Hence the liability to confiscation stands. The question now before us is, whether absolute confiscation is warranted. The item imported is live animal and that too figuring in the Article of the Convention.
There is a specific agreement that the animal shall be taken care of by the Management authority of the State till the return of the same to the country of origin or to entrust to such agencies, which in their opinion would take care of the animal. In the circumstances, we are not quite sure as to what is proposed to be done with the Chimpanzee, which has been ordered absolute confiscation. In the matter of disposal of such animal, as per the Convention, the Management authority only have a say in this matter. If they consider that the animal can be entrusted to the circus where it can be taken care of, the Customs authorities should not have objection for redemption. In the circumstances, we would deem it proper to remit this issue to the Adjudicating authority for considering the request for redemption on a suitable fine, in consultation with the Ministry of Environment or the nominated Management authority for this purpose.
6. The appeal is disposed of in the above terms. In view of the disposal of the appeal itself, stay application does not survive for consideration.
Before signing the order dictated by Brother Jayaraman, Member (Technical), in the open court, to which I have concurred, I would like to add that from the documents produced, it is found that the Chief of Urban Coordinator of the People's Movement for the Revolution, Department of Environmental and Nature Preservation Affairs, Northern Region - Kivu, North Eastern Zone, Goma, Republic of Zaire, Central Africa, has issued a certificate of birth and origin as required under 'CITES', where, besides, mentioning the exact date of birth, sex, group to which it belongs and registration number, has acknowledged that the said "Chimpanzee" has been gifted by one Mr. Abdul Khaleeq Al Awadi', by putting the same Chimpanzee at the disposal of Jumbo Circus - India.
This indicates that even the Environmental authorities of Zaire were aware of the intended use of the Chimpanzee in the circus. An inference can be raised on this certificate that this Chimpanzee was removed from its natural habitat and permitted to be owned by an individual, possibly without any objection from the said authority. A further probable inference can also be drawn that the authorities in the country of origin had no objection to the animal being put to use in the circus as otherwise, such a certificate would not have been issued.
This observation is made only with a view to facilitate the competent authority to arrive at an appropriate view, while examining the issue of allowing its redemption, the decision on which, has to be taken by the authority in consultation with the Management authority.