Declarants Of Exotic Live Species As Per 2020 MoEFCC Advisory Immune From Prosecution Under Wild Life Act & Future Amendments : Supreme Court

The Supreme Court on March 27 clarified that individuals who have made a declaration of ownership of 'exotic live species' in accordance with the 2020 advisory issued by the Ministry of Environment, Forest and Climate Change are immune from prosecution under the Wild Life (Protection) Act of 1972 or action under any future laws or amendments.

The bench comprising of Justice Krishna Murari and Justice Sanjay Karol while hearing the application for clarification of its earlier decision said that, “Since vide order dated 08.08.2022 it has been held that Advisory was an Amnesty Scheme and declarants are immune from prosecution, the same would obviously mean that declarants are immune from prosecution or action under any future laws and amendments incorporated in the Wild Life(Protection) Act, 1972.”

An application was filed seeking clarification of an order dated August 8th, 2022. The order stated that declarants would not be prosecuted, but after the Wild Life (Protection) Amendment Act of 2022, the Competent Authority is now free to prosecute the declarants and take appropriate steps, such as confiscation of the inventory declared under the Advisory. The question remains whether the amendment overruled the previous order.

Background

Before the Wild Life (Protection) Amendment Act, 2022 was enforced, Ministry of Environment, Forests and Climate Change issued a Notification dated 11.06.2020 which was in the form of an Advisory dealing with import of exotic live species of animals and birds in India and declaration of stock. The said Advisory became the subject matter of challenge before various High Courts of the country on somewhat identical grounds. The Advisory came to be upheld by all the High Courts.

The Notification explained that “exotic live species” used in this advisory shall be construed to mean only “the animals named under the Appendices I, II and III of the Convention of International Trade in Endangered Species (CITES) of Wild Fauna and Flora and does not include species from the Schedules of the Wild Life (Protection) Act 1972.”

The object of the Advisory was to streamline the process of import, export and possession of exotic live species. The Judgments rendered by different High Courts in challenge to said Advisory held the Advisory to be a Amnesty Scheme.

The Advisory was optional and permitted making declarations up to and including 15.03.2021.

A PIL was filed before the Supreme Court challenging the legality and validity of the aforesaid Notification dated 11.06.2020. The said Writ Petition was dismissed by making certain observations vide order dated 08.08.2022, the clarification whereof is being sought by the petitioner by means of the present application.

The Apex Court by order dated 08.08.2022 held that “Once a declaration within the window of six months as provided under the Advisory is made, the exotic live species, including its progeny, the declarant or transferee(s) are fully exempt from explaining the source of exotic live species. The exotic live species which is declared or its progeny, are not liable to confiscation or seizure by any Central Agency or State Agency. Consequently, the declarant or the transferee(s) of such declarant will be immune from prosecution under any civil, fiscal and criminal statute by any Central or State Agency. Any other interpretation would lead to absurdity.”

Later, Wild Life Act (Act) was amended in 2022 exotic animals as listed in the appendices to CITES are brought within the purview of the said Act. The amending Act, introduces Chapter VB to enforce provisions of CITES and animals listed in the appendices to CITES were added Schedule IV to the Act which make the ownership of such exotic animals punishable.

The applicant seeking clarification contended that in view of the amending Act, the effect of the Advisory, order of four different High Courts as well as our order dated 08.08.2022 stand stricken off or overruled.

Analysis by the Court

The court said that as per section 49M of Wild Life Act added by 2022 amendment “every person in possession of a species listed in Schedule IV is required to report details of such animal to the Management Authority, which, as per sub-Section(2), is required to satisfy itself that the animal has not been possessed by contravention of any law and only after such satisfaction the authority shall issue a registration certificate permitting retention of such animal. If the Authority is not so satisfied, sub-Section(8) makes such possession illegal.”

The consequence of the provision will be that the animal will be forfeited to the Central Government under Section 48Q and the person concerned is liable to prosecution under Section 51 of the said Act.

The Apex Court remarked that “This is bound to affect a large number of citizens especially pet owners, traders, farm owners, breeders and bona fide enthusiasts.”

Further the Court by referring to the Union of India and Anr. v M/s. Ganpati Dealcom Pvt. Ltd. , Civil Appeal No. 5783 of 2022. noted that the Amendment Act cannot post facto criminalize possession. It is well settled that retroactive criminal legislation is violative of Article 20(1), one of the fundamental rights guaranteed under part III of the Constitution is prohibited.

The Court further explained that “Many people come to possess animals as pets from the open market and possibility of producing a paper trail, especially after several years, is next to impossible.”

It was also noted that when the Advisory was issued, the same was optional, aimed essentially at regulation of import/export and the public at large was not put to notice that failure to opt would lead to penal and other consequences affecting their right to possess the animal.

The Court opined that “in order to achieve the desired object of amending Act, of enforcing provisions of CITES, the respondent must provide the option of Advisory to the citizens at large for a further reasonable period by putting them to notice of the consequences of failure to make such registration/declaration”.

The Court further clarified that, “Advisory was an Amnesty Scheme and declarants are immune from prosecution, the same would obviously mean that declarants are immune from prosecution or action under any future laws and amendments incorporated in the Wild Life(Protection) Act, 1972.”

The Apex Court also gave strong recommendation to the ministry consider extending the Advisory dated 11.06.2020 to the citizens at large for a further period of minimum six months or such further period which may be deemed appropriate with putting the public at large to caution that, if the scheme is not availed of and no declaration is made, the person concerned and the inventory in the possession of the person shall be liable for action as per Chapter VB of the Wild Life (Protection) Act, 1972 irrespective of the date of which the inventory in question has come in the possession of such person.

Case Title- Swetab Kumar v. Ministry of Environment, Forest And Climate Change and Ors.

Citation : 2023 LiveLaw (SC)245

Wild Life (Protection) Act of 1972- Individuals who have made a declaration of ownership of 'exotic live species' in accordance with the advisory issued by the Ministry of Environment, Forest and Climate Change are immune from prosecution-Since it has been held that Advisory was an Amnesty Scheme and declarants are immune from prosecution, the same would obviously mean that declarants are immune from prosecution or action under any future laws and amendments incorporated in the Wild Life(Protection) Act, 1972.

Constitution of India 1950- Article 20(1)- the legal position to be taken into consideration is that an Amendment Act cannot post facto criminalize possession. This proposition does not require much deliberation and is well settled that retroactive criminal legislation being violative of Article 20(1), one of the fundamental rights guaranteed under part III of the Constitution is prohibited.

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