1. Heard Ms. Chandini Ghatak and Mr. Ritesh Verma, learned Counsel for the petitioner and Sri Raj Kumar Singh, learned Standing Counsel for the Union of India.
2. This writ petition in public interest has been filed by the petitioner for issuance of direction to enable the officers of the Directorate of Revenue Intelligence and the officers of Wildlife Crime Control Bureau, to inquire from the 'declarants' under the newly introduced "Voluntary Disclosure Scheme" announced by the Central Government through the Ministry of Environment, Forest and Climate Change, the proof of licit acquisition and possession of the exotic animals/birds declared by them, notwithstanding the dispensation contained in the Voluntary Disclosure Scheme.
3. Mr. Raj Kumar Singh, learned counsel appearing for the respondents submitted that the petition merits dismissal. Immunities have earlier been promised under various 'voluntary disclosure schemes' to declarants availing respective schemes, during the limited period provided therein. According to him, no such directions as sought by the petitioner would be justified, and that the same would be against wider public interest.
4. This "Voluntary Disclosure Scheme" is recently introduced by the Central Government, Ministry of Environment, Forest and Climate Change, through Wildlife Division. Press Release of the Scheme was also issued on 11.06.2020 (Annexure P-2) by the Ministry. The voluntary disclosure scheme is titled as "Advisory for Dealing with Import of Exotic Live Species in India and Declaration of Stock". It inter alia provides the background as under:
".....Considering the significance of import and export of exotic live species, this Ministry is issuing an advisory to streamline the process for import and possession of exotic live species in India....."
5. The "Voluntary Disclosure Scheme" is in mainly in four parts as follows:
"I. Developing an inventory of exotic live species in India through Voluntary Disclosure Scheme;
II. Import of exotic live species and stock maintenance;
III. Registration of progenies of imported animals; and IV. General.
It also contains following Annexures including -
(i) Annexure I- "Form for Declaration of stock of Exotic Live Species,
(ii) Annexure II- Registration of Stock/Change in Stock due to death/transfer/acquisition of Exotic Live Species,
(iii) Annexure III- Form for Application to DWLW for an NOC for import of Exotic Live Species,
(iv) Annexure IV- Form for Application of Registration of Progeny of Previously held Exotic Live Species Stock, and
(v) Annexure V- Ownership Certificate for Progeny of Exotic Live Species.
It is clarified in para I (a) of the said Scheme that -
"a. The phrases "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" for the purpose of this advisory and does not include species from the Schedules of the Wild life (Protection) Act, 1972."
6. Apparently, by introducing this "Voluntary Disclosure Scheme" the Central Government has given an option to all citizens to voluntarily declare their stock of exotic species named under the Appendices I, II and III of CITES, if any with them, within six months from the concerned date in June, 2020. The Scheme requires citizens to submit themselves to the provisions of the scheme and to thereafter maintain the statutory record as prescribed under the Scheme for any addition or reduction in declared stock of exotic species. This would enable the Government to have a unified information system available for stock of exotic species at the State/Central level. This would also enable the Central Government to introduce further provisions regulatory as well as penal, after giving this window of six months for voluntary disclosure by allowing immunities only to those, who opt to file their voluntary disclosure declaration within this six months window. Immunity is not provided to the declarants opting to disclose the stock after this limited window of six months. It is inter alia provided in Part I of the Scheme that-
"b) It is stated through this advisory that the declarer would not be required to produce any documentation in relation to the exotic live species if the same has been declared within six months of the date of issue of the advisory. For any declaration made after 6 months of the date of issue of this advisory, the declarer shall be required to comply with the documentation requirement under the extant laws and regulations."
7. This scheme is aimed at developing an inventory of exotic live species within India, regulating their import and maintaining stock of imported exotic live species, to maintain statutory records of stock, change in stock due to any death, transfer within India, and acquisition of further stock, providing for application to Chief Wildlife Warden (CWLW) for no objection certificate for import of exotic live species, application for registration of progeny of previously held exotic live species stock and issuance of ownership certificate for progeny of exotic live species. In effect the Government intends to collect data and have a unified information system of possession, storage, captive breeding, trade, transportation and import/ export of the exotic species listed under Appendices I, II and III of CITES, so as to take further regulatory and penal measures. Success of the scheme would provide census data, breeding data, and trade data of all exotic species kept in captivity within India to ascertain the entire picture of the status of each exotic species and regulating the same thereafter. The aforesaid voluntary disclosure is, therefore, ex facie in wider public interest.
8. The petitioner by seeking the directions as prayed in the petition is questioning the validity of the immunity promised under the voluntary disclosure scheme. According to the petitioner, the assurance of immunity contained in the scheme shall not come in the way of any investigations into acquisition or possession of exotic species, if the investigating agency intends to investigate the same on apprehension that the exotic species declared by a person might be one smuggled into India. According to the petitioner, if the direction as sought is not granted, the same may lead to discriminated and arbitrariness. A declarant who is in domestic possession of any exotic animal/bird may get scot free under the voluntary disclosure scheme, even if the declared animal/bird might be a smuggled one. Therefore, the requirement of non-disclosure of any document regarding licit possession or acquisition cannot act as a shield for any declarant, if any investigating agency seeks such information from the declarant.
9. An earlier PIL Civil No. 22903 of 2019 : Dinesh Chandra Vs. Union of India and others, filed by the very same petitioner against the same respondents was dismissed vide a detailed judgment dated 30.08.2019. It is not in dispute that the said judgment attained finality and binds the parties, as the same has not been challenged by any of the parties. It was inter alia observed that:
"37. From the aforesaid, it is very clear that exotic birds/animals do not come under the purview of Wild Life Protection Act, 1972. There is no provision under the Wildlife (Protection) Act, 1972 to issue licence or permission for dealing in exotic birds.There are no Rules and Regulations and procedures for keeping, breeding, buying, selling and exhibiting such animals (exotic animals) within country which have been bred in India. No documents are specified and no permission are required as per Customs Act for keeping, breeding buying, selling and exhibiting such animals (exotic animals) within country which have been bred in India. Animals have been bred in captivity in India, Customs Act does not have role in it.
47. It is well settled that the Court must be extremely careful to see that under the guise of redressing public grievance it does not encroach upon the sphere reserved by the Constitution to the Executive and the Legislature. Thus, it cannot direct the government to initiate legislation or interfere in the matters of governmental policy, except in cases of violation of fundamental rights.
48. From the aforesaid, we are of the view that the Central Government has consciously kept the exotic animals/ exotic birds out of the purview of Wildlife (Protection) Act, 1972 by not including them in its Schedules, and has thus permitted their domestic trading, possession and captive breeding in India. Such legislative intent and decision of the Government can neither be interfered with in writ jurisdiction, nor can any direction be given to the Government in this regard to amend Wildlife (Protection) Act, 1972 or Customs Act, 1962. At the point of Import/Export, a Customs/DRI officer has jurisdiction to detect and prevent International Trade, i.e., import/ export of live animals and birds into or out of India, if found in violation of the provisions of Customs Act, 1962 read with the 'CITES' and Foreign Trade Policy. Thus, any live animals and birds, while being smuggled through the Indian Customs Frontiers, can be seized at the point of Import/Export by DRI/Customs and the concerned persons can be subjected to penal and confiscatory provisions in accordance with the provisions of the Customs Act, 1962. There is no restriction on domestic trade, keeping, captive, breeding, buying, selling and exhibiting 'exotic animals/exotic birds' within India, either under the Wildlife (Protection) Act, 1972 or under the Customs Act, 1962 or under the Foreign Trade (Development & Regulation) Act, 1962 or CITES. Any person in possession of 'exotic animals/exotic birds' within India, is not bound to comply with the requirements of Section 11C to 11F of the Customs Act, 1962 regarding intimation of place of storage, precautions to be taken in acquiring, maintaining accounts or sale, as they are not notified under Section 11B. Similarly, mere 'acquisition', 'purchase', or 'possession' of the exotic animals or exotic birds within India, shall not invite any penal consequences under the Customs Act, 1962 or Wildlife (Protection) Act, 1972."
49. For all the reasons mentioned above, the present Public Interest Litigation petition is hereby dismissed without costs."
10. The said judgment dated 30.08.2019 was much before the issuance of the subject Voluntary Disclosure Scheme, announced and published on 11.06.2020 by the Central Government through the Ministry of Environment, Forest and Climate Change. So far as any smuggling activities if noticed at the point of Import/Export, a Customs/DRI officer would continue to have jurisdiction to detect and prevent International Trade, i.e., import/export of live animals and birds into or out of India, if found in violation of the provisions of Customs Act 1962 read with the 'CITES' and Foreign Trade Policy, and any live animals and birds, while being smuggled through the Indian Customs Frontiers, can be seized at the point of Import/Export by DRI/Customs and the concerned persons can be subjected to penal and confiscatory provisions in accordance with the provisions of the Customs Act, 1962.
11. There is no change in the legal position stated in the said judgment dated 30.08.2019 even in respect of domestic trading, possession, transportation and captive breeding of exotic species within India, at least for a period of six months from the date of introduction of the present "voluntary disclosure scheme" as the Clause (b) of Part I of this voluntary disclosure scheme also provides that -- "the declarer would not be required to produce any documentation in relation to the exotic live species if the same has been declared within six months of the date of issue of the advisory."
12. After expiry of this six months' window, the Scheme clearly states that-" ...For any declaration made after 6 months of the date of issue of this advisory, the declarer shall be required to comply with the documentation requirement under the extant laws and regulations."
13. Moreover, in this context, reference can also be made to the following oft quoted judgment of Hon'ble Supreme Court:
(i) In R.K. Garg vs Union of India reported in (1981) 4 SCC 675, a Constitution Bench of the Hon'ble Supreme Court recognized that there may be crudities and inequities in complicated experimental legislation but on that account alone it cannot be struck down as Invalid.
(ii) In Hira Lal Hari lal Bhagwati v. CBI reported in (2003) 5 SCC 257, it was held by the Hon'ble Supreme Court that once the Kar Vivad Samadhan Scheme, 1998, which also was a voluntary disclosure scheme, was availed of, dragging the declarant and chasing him in other proceedings is highly unreasonable, arbitrary and initiation and continuance of such proceedings lack bona fides.
14. Accordingly, such action as suggested by the Petitioner, if taken by any government agency or department, whether of Central or State, would be in teeth of this "voluntary disclosure scheme". It is settled law that Government shall speak in same voice. The Central Government, Ministry of Environment, Forest and Climate Change, through Wildlife Division has already introduced the
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"voluntary disclosure scheme" in wider public interest by announcing immunity for a limited window of six months to promote and invite voluntary disclosure declaration from all concerned. The scheme so introduced by the Central Government shall be promoted by all the departments in wider public interest. During this limited interregnum of six months, any inquiry or action against procession, breeding or transportation of exotic species within India by officers of any government agency or department, whether of Central or State, would be wholly illegal, arbitrary, unreasonable, unsustainable and would defeat the purpose of the voluntary disclosure scheme. In this period of six months, whosoever declares the stock of exotic species and thereby submits himself to registration and further requirements of the scheme, shall have immunity from any inquiry into source of licit acquisition or possession of the voluntarily declared stock of exotic species. Consequently, dragging the declarant and chasing him for subjecting him to any penal or confiscatory measures under any enactment in connection with such timely and voluntarily declared stock of exotic species would be highly unreasonable, arbitrary and illegal, being contrary to legitimate expectation. 15. For the above-mentioned reasons, no such directions as sought by the petitioner can, thus, be issued. 16. The writ petition filed by the petitioner has no merit and is, accordingly, dismissed but without any order of costs.