Exotic Animals Are Not 'Prohibited Goods' As Per Section 135 Of Customs Act; Bombay HC Grants Bail To Man Arrested For Smuggling [Read Judgment]

Division bench of Justice Ranjit More and Justice NJ Jamadar pronounced the judgement after hearing 36-year-old Imran Latif Shirgawkar's writ petition. Imran was arrested on September 13, 2019. While in custody, Imran preferred an application for compounding of the alleged offence before the compounding authority under section 137(3) of the Customs Act, 1962. Thereafter, the petition was filed.

Case Background

According to the DRI, on July 27, 2019, an exotic albino monkey and twenty exotic baby Siamese crocodiles were seized from the possession of one Ashfaq, who was intercepted at Kalamboli Bus Stop, Navi Mumbai. Further, as per the DRI, the Petitioner had purchased these exotic animals in market at Bangkok and was a key member of the syndicate. It is further alleged that the Petitioner instructed carriers to smuggle the animals into India for money and then transferred them by road to Mumbai under life-threatening conditions.

Advocate Sujay Kantawalla appeared on behalf of the petitioner and submitted that all allegations levelled in the remand application and the contention of the DRI in counter-affidavit show that the offence alleged under section 135(1)(i) of the Customs Act, 1962 is not only compoundable but also bailable offence.

He relied on Sections 135, 104(6)(b) and 104(7) of the Customs Act, to claim that the alleged offence is classifiable under section 104(7) of the Customs Act, 1962, which is bailable.

Whereas Advocate Rebecca Gonsalvez appeared for the DRI. She vehemently contended that the alleged offence was classifiable as non-bailable under section 104(6)(b) of the said Act because they were prohibited goods notified under section 11 of the said Act. She relied upon a notification dated August 9, 1969 issued by the Central Government under section 11(1) of the Customs Act, which prohibits the import of monkeys into India and submitted that notification issued under section 11 of the said Act would fulfil the requirements of section 104(6)(b) of the Act, and no further notification under section 135(1)(i)(c) is required.

Judgement

Court considered the judgement in Om Prakash Bhatia v. Commr. Of Customs relied upon by Gonsalvez and noted that the said judgment is neither in the context of section 104(6) nor in the context of section 135(1) (i) of the Customs Act. The said judgment is in the context of section 113(d) of the Customs Act, hence not applicable to the present case, Court said.

After examining the relevant notifications, Court observed-

"No notification could be produced by the Respondents to show that the exotic animals are specified as "prohibited" under section 135(1)(i)(c)."

Court noted-

"We are unable to accept the contention of learned counsel for the Respondent-DRI that even if prohibited goods are not those which are notified under sub-clause (c) of clause (i) of section 135(1) and are only notified under section 11, that would be sufficient to invoke subsection (6) of Section 104. Such an interpretation would render the words "which are also notified under sub-clause (C) of clause (i) of section 135(1)", in sub-section (6) as redundant and nugatory."

Thus, Court concluded that section 104(6)(b) is not attracted in the case of exotic animals. Consequently, the offence alleged against the Petitioner would fall under section 104(7) of the Customs Act and thus shall be bailable, the bench noted.

Furthermore, the bench pointed out how there was no direct evidence against the petitioner in the said case-

"It is further seen that there is no seizure of exotic animals from the possession of the Petitioner. The case qua the Petitioner is mainly on the strength of statements under section 108 of the Customs Act, 1962. The burden is on the department to give cogent material in adjudication proceedings. It is not mandatory that the application for compounding can only be filed by admitting the guilt. This beneficial provision is also available to prevent needles proliferating of litigation."

The court allowed the petitioner to be released on a cash bail of Rs.50,000.

Click here to download the Judgment