IMPORTANT POINT
Amendment Act cannot post facto criminalize possession.

JUDGMENT :

KRISHNA MURARI, J.

1. This Miscellaneous Application has been filed by the petitioner seeking clarification of our order dated 08th August, 2022 to the effect that the mere filing of declaration under the notification dated 11.06.2020 does not preclude the Competent Authority from taking steps under Chapter VB of the Wild Life (Protection) Act, 1972 by means of amendment brought in the Act by Wild Life (Protection) Amendment Act, 2022 and it shall be open for the Competent Authority to prosecute the said declarants and also take consequential steps of seizure and confiscation of the inventory declared under the said Advisory.

2. In order to bring clarity it may be necessary to narrate a few background facts:

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.

3. A Writ Petition under Article 32 of the Constitution of India in the nature of Public Interest Litigation was filed before this Court as well challenging the legality and validity of the aforesaid Notification dated 11.06.2020. The said Writ Petition came to be 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.

4. In the said Advisory, the object of the issuance of the same was postulated as one being for streamlining 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. It may also be relevant to point out that the Advisory was optional and permitted making declarations up to and including 15.03.2021.

5. By our order dated 08.08.2022, while concurring with the view of different High Courts, we had observed as under:

“.......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 transferees 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 transferees 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.”

6. Now, by the amending Act, 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 find place in newly added Schedule IV to the said Act.

7. Learned counsel for the petitioner in support of the application seeking clarification contends 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.

8. We have perused the amending Act. The scheme of Section 49M is that, under sub-section (1) 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. As a consequence, the animal stands forfeited to the Central Government unde