Zavaray S. Poonawalla Vs. Union of India (Uoi) (Through Secretary of Law and Justice, Department of Legal Affairs), - Court Judgment

J.P. Devadhar, J.

1. The Petitioner who with permission has hunted wild animals including leopard Panthera Pardus) at Zambia and has subjected the hunted animals into a taxidermy/trophy items has been denied importation and clearance of the said items by the Customs/CITES authorities in India and hence this petition is filed seeking appropriate orders for clearance of the said items.

2. As a result of indiscriminate killing of the animals and birds by human beings, either for its flesh or for trade or as a matter of hobby, several species of animals/birds have virtually become extinct. To curb the ecological imbalance caused by the ruthless killings of the animals and birds various legislations have been enacted by several countries worldwide, to protect the lives of the endangered species of animals and birds and also curb the international trade in live animals/birds or their products.

3. The convention on International Trade in Endangered Species of wild Fauna and Flora (CITES) is an international treaty made at Washington in the year 1973 with a view to regulate the international trade in specimens of selected species subject to certain controls set out therein. India signed CITES on 9th July, 1974 and ratified the treaty on 20th July, 1976. Thus, India being a party to CITES, export and import of the species set out in the three appendices of the CITES are permissible only with the approval of the authorities constituted under CITES in India and subject to other laws enacted by the Government of India such as, Prevention of Cruelty to Animals Act, 1960, the Wildlife (Protection) Act, 1972, etc. Thus, apart from being a party to CITES, there are several legislations enacted in India to protect the wildlife and its trade.

4. The Petitioner is one such person, who in June, 2000 after obtaining the requisite permission/license and clearance from the Government of Zambia, as a matter of hobby hunted certain animals and thereafter exported the same to Zimbabwe for processing the said animals so at to convert them into items of Taxidermy/hunting trophies. Taxidermy is the Act of preparing and mounting skins of animals in life like manner. After obtaining the requisite permission from the CITES authority in the Republic of Zambia and by the Government of Zimbabwe, the Petitioner sought to import the said items of taxidermy/hunting trophies into India. There is no dispute that the Petitioner has complied with the local laws prevailing in Zambia and Zimbabwe and requisite permission from CITES for export of the said items from those countries into India have been obtained by the Petitioner.

5. Apart from obtaining clearance for export from the above countries, the Petitioner was also required to obtain permission from different authorities in India for importing the items of Taxidermy/Trophies into India. Accordingly, the Petitioner has applied and secured permission from the Deputy Inspector General (Wild Life), Ministry of Environment of Forests, Government of India on 4.7.2001 and 9.10.2001 for import of the items of Taxidermy/Trophy subject to the fulfillment of the following conditions.:-

1) The Applicant will obtain 'No objection Certificate' from the Chief Wildlife Warden, Maharashtra State before importing the trophies.

2) These trophies will not be displaced in any commercial premises and will not be used for any commercial purposes.

3) The applicant shall not object to the concerned Chief Wildlife Warden putting an identification mark on these trophies. For this purpose, he will intimate the Chief Wildlife Warden, Maharashtra, and the office of the Regional Dy. Director as soon as the trophies arrive in India.

4) The applicant will keep the concerned Chief Wildlife Warden informed of any transaction/movement of trophies.

5) The applicant will obtain clearance and certificates from DGFT and CITES authority wherever required.

6. It is not in dispute that on 11.4.2002 the Petitioner has obtained the requisite permission from the Chief Conservator of Forests (Wild Life), Maharashtra State, Nagpur for import of several hunting trophies/taxidermy items from Zambia. It is also not in dispute that the Joint Director General of Foreign Trade has also issued import licence on 23.7.2002 under Foreign Trade Regulation Act, thereby permitting the Petitioner to import various items of Taxidermy trophies subject to the conditions set out therein. One of the conditions set out in the import licence is that the trophies will not be displayed in any commercial premises and will not be displayed in any commercial premises and will not be used for any commercial purposes and that the Petitioner shall obtain clearance and certificate from the CITES authorities. Under the said licence, the Petitioner was also required to give an undertaking that at any point of time, he shall not sell or dispose of crocodile and leopard trophies imported and that he shall not in future apply for import of any look alike species into India.

7. Before importing the items of the Taxidermy/Trophies, the Petitioner by his letter dated 27th April, 2002 (page 79 of petition) had also applied to the CITES authorities in India seeking permission to import items of taxidermy/hunting trophies. By a letter dated 16th May, 2002, the Regional Deputy Director (W.R.) and Asstt. CITES Management authority in India informed the Petitioner that under Section I, Chapter I of the Import Policy, no skins or tiger or any other cat species can be permitted to be imported and similarly import of wild animals (including their parts and products) as defined in the Wild Life (Protection) Act, 1972 are prohibited. It was further stated in the said letter that unless clearance from D.G.F.T. is obtained by the Petitioner, no permission can be granted under CITES. By a letter dated 3rd August, 2002, the Petitioner informed the Regional Deputy Director, CITES that the requisite import licence has been issued by the Licensing Authority on 23rd July, 2002 and accordingly requested the CITES Management authority to issue the necessary clearance so as to enable them to import trophies at the earliest. However, no order was passed by the CITES Management authority.

8. In the meantime, the trophies and stuffed animals (taxidermy) sought to be imported by the Petitioner arrived at the Bombay Port. The Petitioner by his letter dated 2.9.2002 informed the Regional Deputy Director about the arrival of the goods and sought early action in the matter. By a letter dated 31st October 2002 the Petitioner once (SIC) to the Respondent No. 4 and requested him to look into the matter and issue no objection without any further delay, so as to enable the Petitioner to clear items imported from Zambia.

9. Instead of disposing of the application of the Petitioner, the Regional Deputy Director (WR) and Asstt. CITES Management authority by a letter dated 8th November, 2002 informed the Joint Commissioner of Customs that items of Panthera Pardus (leopard) cannot be allowed because:-

(i) Panthera Pardus (leopard) being a restricted item falling under Schedule I of Wildlife (Protection) Act, 1972 it cannot be imported notwithstanding any documents issued;

(ii) CITES Management Authority has not issued any advance import permit for import of items of Panthera Pardus, which is mandatory under the provisions of CITES.

(iii) The Export/Import Policy of Government of India prohibits import of items falling under Schedule I of the Wild Life (Protection) Act, 1972.

By the said letter, the Respondent No. 4 informed the Customs authorities that except the items of Panthera Pardus (leopard) all other items imported by the Petitioner, can be cleared as those items do not attract any prohibitory clauses.

10. In the light of the above objections raised by the Regional Deputy Director, CITES Management authority, the Deputy Commissioner of Customs (Imports) issued show cause notice under Section 124 of the Customs Act, 1962 ('Act' for short) calling upon the Petitioner to show cause as to why items of Panthera Pardus should not be confiscated under Section 111(d) of the Act and penalty should not be imposed under Section 111(a) of the Act. Challenging the said communication of the Regional Deputy Director, addressed to the Customs authorities dated 8.11.2002 as well as the show cause notice dated 27.11.2002 issued by the Customs authorities, the Petitioner has approached this Court by way of a Writ Petition seeking an order for quashing the said communication of the CITES and the show cause notice issued by Customs and consequently clearance of the item imported by the Petitioner. 11. When the petition was taken up for admission, the Respondents did not dispute clearance of the items other than the item of Panthera Pardus (Leopard). Accordingly, all items other than the item of Panthera Pardus have been cleared by the Respondents. Therefore, the only issue required to be adjudicated upon in the present case is regarding the clearance of the Taxidermy item of Panthera Pardus (Leopard). Since the communication dated 8th November, 2002 addressed by CITES to the Customs, objecting to the clearance of the item of Panthera Pardus was without hearing the Petitioner, this Court by an order dated 6-1-2003 directed the Regional Deputy Director, CITES to treat the said communication dated 8.11.2002 as show cause notice and pass an order on merits after hearing the Petitioner. Accordingly, the Deputy Director of CITES Management authority (Respondent No. 4) heard the Petitioner and passed an order on 17th January, 2003 wherein permission for the clearance of the item of Panthera Pardus was rejected and it was ordered that item of Panthera Pardus be confiscated. The Petitioner has amended the petition to challenge the said order dated 17.1.2003 passed by the Respondent No. 4.

12. Mr. Diwan, learned Counsel appearing on behalf of the Petitioner submitted that when the authorities constituted under the Wild Life (Protection) Act 1972, as well as the Chief Conservator of Forest, Maharashtra State, Nagpur and the authorities under the Export-Import Policy have granted permission for import of the item in question subject to the condition set out therein and the Petitioner has complied with all the conditions attached to the said permissions, the Respondent No. 4 was not justified in refusing to grant permission under CITES. Mr. Diwan submitted that as regards the item of Panthera Pardus, the requisite permission from the exporting country as well as the CITES authorities situated in that country have already been obtained. Thus, when all the authorities in the exporting country and all the authorities in India have granted permission and the Petitioner fulfills the requirement of CITES the Respondent No. 4 could not have refused permission on wholly extraneous considerations. Mr. Diwan submitted that the jurisdiction of the Respondent No. 4 was restricted to the provisions of CITES and under Article III of CITES, he was to ensure that the imported item is not used for commercial purposes. It was submitted that the Petitioner has already given undertaking that the items imported will not be used for commercial purposes. Under the circumstances, when the Petitioner has complied with all the provisions of CITES, the Respondent No. 4 was not justified in refusing to allow clearance of item of Panthera Pardus. Mr. Diwan submitted that the order of the Respondent No. 4 in refusing to grant provisions of the Export Import Policy of the Government of India as well as the Wild life (Protection) Act, 1972 was without jurisdiction. It was submitted that the Respondent No. 4 was not an authority constituted either under the Export/Import policy of the Government of India or under Wildlife (Protection) Act, 1972 and hence the Respondent No. 4 was not competent to hold that there was any violation of those provisions. In any event, it was submitted that as stated hereinabove the authorities under the Export/Import Policy as well as the authorities under the Wildlife (Protection) Act have granted the requisite permission to the Petitioner for import the items including Panthera Pardus. Under the circumstances, it was submitted the refusal to clear the item of Panthera Pardus on the alleged violation of the Export/Import policy and the Wildlife (Protection) Act, 1972 was wholly unjustified and without jurisdiction.

13. As regards the refusal to allow clearance of the item of Panthera Pardus on the ground that the advance permission of CITES has not been obtained, Mr. Diwan submitted that as per the Articles of CITES, the Petitioner had in fact applied to the CITES authority seeking advance permit much before the items were actually imported. As stated hereinabove, the Petitioner had applied to the Respondent No. 4 for advance permit on 27th April, 2002 and the items arrived at Bombay in September, 2002. In the meantime, by a letter dated 16th May, 2002 the Respondent No. 4 had stated that the imports of such items were prohibited under the Import Policy and under the Wildlife (Protection) Act, 1972, and unless permission from the said authorities are obtained, permission under CITES will not be granted. After obtaining the requisite permission from the authorities under the Export Import Policy was well as the authority under the Wildlife (Protection) Act when the Petitioner approached, the Respondent No. 4 did not take any action. It was submitted that under Article III(3) of CITES, the only jurisdiction vested in Respondent No. 4 was to satisfy himself that the specimen imported is not used for commercial purposes. It was submitted that in the instant case, the requisite undertaking has been given by the Petitioner to the effect that the imported items will not be displayed for commercial purpose and shall be kept in the house of the Petitioner, subject to such conditions as are imposed by the concerned authorities. Mr. Diwan submitted that when the Petitioner had in fact sought prior permission from the CITES authority and had complied with the objections of the Respondent No. 4 contained in the letter dated 16.5.2002, the Respondent No. 4 was wholly unjustified in refusing permission on the ground that advance permit is not obtained. He accordingly, submitted that the order passed by the Respondent No. 4 dated 17th January, 2003 be quashed and set aside and the item of Panthera Pardus be released to the Petitioner.

14. Mr. Desai, learned Senior Counsel appearing on behalf of the Respondents, on the other hand submitted that the import licence granted on 23rd July, 2002 by the Licensing Authority was subject to the conditions that the requisite clearance and certificate from the CITES authority is obtained by the Petitioner. Since the said conditions have not been fulfilled the Petitioner is not entitled to clear the imported item. It was submitted that obtaining prior permission of CITES was mandatory under the Articles of CITES and since the Petitioner has not obtained prior permission of CITES, the import is unauthorised. Mr. Desai submitted that the grant of licence under Import/Export policy was subject to the clearance from the CITES Management authority and in the absence of any such permission granted by CITES Management authority, the licence granted by the Licensing Authority becomes non est and as such, the clearance of the item of Panthera Pardus cannot be permitted under the said licence.

15. Mr. Desai, further submitted that the items set out in Schedule I Part I of the Wild Life Protection Act 1972, are prohibited for import and since Panthera Pardus appears at Item 16B of Schedule I Part I of the Wild Life (Protection) Act, 1972, the Respondent No. 4 was justified in refusing to allow clearance of the item imported by the Petitioner. Mr. Desai referred to Chapter 43 of the Export-Import Policy 1997-2002 wherein tiger cat skin are prohibited and not permitted to be imported. He then relied upon Chapter 97 of the Export-Import Policy 1997-2002 wherein stuffed animals and birds (taxidermy) are shown as a restricted item. It was submitted that the import licence granted by the D.G.F.T. was subject to the approval from the CITES authority and in the absence of any such approval, the Petitioner is not entitled to clearance of the items imported. It was submitted that in view of the violation of the Export-Import policy, the Wild Life (Protection) Act, 1972 and also the articles of CITES the imported item is liable to be confiscated and the petition is liable to be dismissed.

16. Having heard the counsel on both sides at length, we are of the opinion that the order of the Respondent No. 4 suffers from serious infirmities and cannot be sustained. The Respondent No. 4 has declined permission for clearance of the Taxidermy item of Panthera Pardus imported by the Petitioner basically on three grounds namely; (i) violation of Export-Import Policy of the Government of India, (2) violation of the provisions of the Wild Life (Protection) Act, 1972 and (3) violation of CITES.

17. The findings of the Respondent No. 4 that there is violation of the Export-Import Policy is without any merit, because, firstly the Respondent No. 4 is not the authority constituted under the Export Import Policy and secondly, the authority constituted under the Export - Import Policy has granted the requisite licence to the Petitioner. The Respondent No. 4 has no authority to enforce the provisions of the Export-Import Policy. Therefore, it is not open to the Respondent No. 4 to reject the application of the Petitioner on the ground that there is violation of the provisions of the Export-Import Policy. Once the permission is granted by the appropriate authority under Export-Import Policy, it is not open to the Respondent No. 4 constituted under CITES to contend that there is violation of the provisions of the Export-Import Policy. Whether the item imported by the Petitioner falls under Chapter 43 or Chapter 97 of the Export - Import Policy is for the Licensing authority has admittedly held that the taxidermy item of Panthera Pardus can be imported under Export-Import Policy and have accordingly granted licence to the Petitioner and, therefore, it is not open to the Respondent No. 4 to hold that there is violation of the provisions of the Export-Import Policy. Thus, the rejection of the application of the Petitioner on the ground that there is violation of the provisions of the Export-Import Policy is without any merit and cannot be sustained.

18. The second ground of rejection of the application of the Petitioner on the ground that there is violation of provisions of Wild Life (Protection) Act, 1972 is also without any merits because firstly, the Respondent No. 4 is not an authority constituted under Wildlife (Protection) Act, 1972 and secondly, in the instance case, specific approval has been granted by the authorities under the Wildlife (Protection) Act, 1972 viz. the Deputy Inspector General (WL) of the Union Ministry of Environment and Forest, New Delhi and also by the Chief Conservator of Forest, Maharashtra State, Nagpur. In the circumstances, when the concerned authorities under the Wild Life (Protection) Act, 1972 have granted permission to the Petitioner, it is not open to the Respondent No. 4 who is not an authority constituted under the Wild Life (Protection) Act, 1972 to hold that there is violation of the provision of the Wild Life (Protection) Act, 1972 and therefore, rejection of the application on the second ground cannot be sustained.

19. Now, coming to the rejection, of the application on the third ground that there is violation of the CITES, it is seen that the application seeking approval of CITES was made by the Petitioner to the Respondent No. 4 on 27th April, 2002 that is much prior to the import in September, 2002. In fact, by a letter dated 16.5.2002, the Respondent No. 4 had informed the Petitioner that unless clearance is obtained from the Director General of Foreign Trade and the authorities under the Wild Life (Protection) Act, 1972, the permission for imports under CITES cannot be granted. After obtaining the permission from the authorities under the Wildlife (Protection) Act, 1972 and the import licence dated 23.7.2002 from the office of the Regional Joint Director of Foreign Trade, when the Petitioner approached the Respondent No. 4 seeking requisite permit, no action was taken by the Respondent No. 4. In the meantime the goods in question have arrived. Thus, from the facts on record, it is clear that the Petitioner had obtained requisite permit from the authority under the Export - Import Policy, as well as the authority under the Wildlife (Protection) Act, 1972 and had also applied for advance permit from the CITEs authority in India. Moreover, the Petition was applied for advance permit from the CITES authorities and there is no violation of the provisions of CITES. Under the circumstances, it is not proper on the part of the Respondent NO. 4 to reject the application of the Petitioner on the ground that prior permit of CITES has not been obtained by the Petitioner. There is no dispute that the Petitioner had applied to CITES for advance permit on 27.4.2002. From Article III(3) of CITES, it is clear that before granting permission to import an item, falling under Appendix I all that the CITES Management authority is required to do is to satisfy that the imported specimen will not be used for commercial purposes. In the impugned order, it is not even suggested that the taxidermy item of Panthera Pardus cannot be brought to India under the provisions of CITES. The only violation of CITES set out in the order of Respondent No. 4 is that the prior permission of CITES is not obtained before importing the item, which according to us, cannot be sustained, because admittedly the application was for permit made much prior to the import and all the requirements suggested by the Respondent No. 4 were complied with by the Petitioner much prior to the import. Under the circumstances, refusal to grant permit under CITES on the ground that the advance permit under CITES is not obtained and that there is violation of Export Import Policy and Wild Life (Protection) Act, 1972 cannot be sustained.

20. Accordingly, we hold that the Petitioner has complied with all the requirements under CITES, under the Export-Import Policy and also under the provisions of the Wild Life (Protection) Act, 1972. Under the circumstances, we quash and set aside the order of Respondent No. 4 dated 17th January, 2003.

21. Since the Customs Authorities have issued show cause notice under Section 124 of the Customs Act, 1962, we direct the Customs Authorities to adjudicate upon the said show cause notice on its own merits and in accordance with law and pass appropriate orders within 4 weeks from today. We make it clear that the customs authorities shall not withhold clearance of the items on the ground that a permit under CITES is not obtained by the Petitioner.

22. Petition is disposed of in above terms, however, there will be no order as to costs.