Most People Possessing Exotic Species Are Animal Lovers, Cannot Direct Govt To Criminalize Non-Declaration: Tripura High Court

Dismissing a PIL seeking to declare the possession of undeclared exotic animals and birds as illegal under the Customs Act and the Wild Life (Protection) Act and prosecution of their owners, the Tripura High Court has said it cannot direct or expect the government to take such drastic measure in haste without assessment of the impact and in absence of a detailed study.

The division bench of Chief Justice Indrajit Mahanty and Justice S.G. Chattopadhyay noted that a large number of citizens across India own pets which may be exotic species and might have been purchased or procured from those involved in captive breeding.

It added that the petitioner effectively wants that even all such exotic pets in domestic possession will have to be forfeited and housed by government, with their owners being prosecuted under the Wild Life (Protection) Act as well as compelled to disclose the source under Customs Act.

"The step suggested by the petitioner will have very wide and far reaching ramifications. We cannot lose sight of the facts 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. There are sufficient safeguards available in law to prevent cruelty to animals which are also applicable to exotic species," the bench said.

The court further said directing or suggesting to the government to make such amendments would lead to chaos and no public purpose will be achieved. It further said:

"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 also said that unless a person is caught smuggling exotic species across the international borders, no presumption can be drawn that a domestic keeper has illegally imported the exotic species on the ground of non-declaration.

"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," it said, while reiterating a settled position.

The PIL was filed by a law graduate in the public interest seeking the declaration that possession of all exotic animals or birds by persons - other than those who have made voluntary disclosure within the time contemplated under Centre's Advisory of June 2020 - is illegal.

A person in possession of such exotic animals or birds be prosecuted for violation under the Customs Act by the Department of Revenue Intelligence and under the Wild Life (Protection) Act, 1972, one of the prayer of the PIL said. 

Relying upon news articles to demonstrate that there was a proliferation of trade in exotic wildlife species in the state, the petitioner contended that there is no provision or prohibition under the Wild Life (Protection) Act, 1972 qua the foreign category.

The court noted that the advisory has been subject matter of challenge before various High Courts and it has been upheld each time. It further said the advisory is an executive direction to maintain inventory of exotic species and regulate their import. The exemption is limited to dispensation with explanation of source of exotic species, said the court. 

"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," said the court, adding there is no change in statutory provisions with regard to such animals or birds.

The court disagreed with the submission that failure to arrest or prosecute those who did not make declaration with the time stipulated in the advisory would frustrate its intent and prupose.

Case Title: Adwitiya Chakrabarti Versus Union of India

Case No: W.P.(C)(PIL) No.11/2022

Citation: 2022 LiveLaw (Tri) 40 

Date: 21.09.2022

Counsel For Petitioner: Advocate Manoj Kumar Biswas

Counsel For Respondent: C.G.C. Biswanath Majumder

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