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IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
PRAKASH SHRIVASTAVA, KRISHNA RAO, JJ.
Sukanta Mallick – Appellant
Versus
Union of India & Others – Respondents
MAT. No. 684 of 2022 with CAN. Nos. 1 & 2 of 2022
Decided on : 19-05-2022
Customs Act, 1962 - Exotic Live Species - Advisory for Dealing with Import of Exotic Live Species in India - Sections 108, 110, 123, 11 - [SUMMARY OF ACT SECTIONS]
Fact of the Case:
The appellant filed an appeal against the order passed by the Ld. Single Judge in connection with the seizure of a Live Exotic Bird Macaw by the Customs Authority. The appellant had declared the stock of Exotic Live Species and had made necessary arrangements for the transportation of the bird. The respondent authorities seized the bird and issued a show cause notice upon the appellant.
Finding of the Court:
The court found that the appellant had complied with the provisions of the advisory and had not committed any unlawful act. The court also noted that the Customs Act did not mention Exotic Live Birds and that the seizure and subsequent summon issued to the appellant were illegal and amounted to an abuse of the process of law.
Issues: The issues revolved around the legality of the seizure and summon issued to the appellant, compliance with the Voluntary Disclosure Scheme, and the applicability of the Customs Act to Exotic Live Species.
Ratio Decidendi: The court relied on the Voluntary Disclosure Scheme introduced by the Central Government, the lack of mention of Exotic Live Birds in the Customs Act, and previous judgments to conclude that the seizure and summon were illegal and an abuse of the process of law.
Final Decision: The court allowed the appeal, set aside the impugned order, and quashed the proceeding initiated by the respondent. The court disposed of the case accordingly.
JUDGMENT :
1. There is a delay of 13 days in filing this appeal. Hence, CAN 1 of 2022 has been filed by the appellant with a prayer to condone the delay.
2. Having regard to the explanation which has been furnished in the application, we are of the opinion that the appellant was prevented from filing the appeal within time on account of bona fide reason.
3. Hence, CAN 1 of 2022 is allowed and delay in filing the appeal is condoned.
4. The appellant has preferred an appeal against the order passed by the Ld. Single Judge in WPA No. 1554 of 2022 dt. 16.03.2022 wherein the Ld. Single Judge had disposed of the writ petition by passing the following order:-
The Wild Life Warden shall ensure that the process of registration and acceptance thereof, under the aforesaid Advisory, is completed in acceptance or otherwise, of the birds registered by the petitioner, preferably within a period of three months from the date of communication of a copy of this order. The petitioner shall not be permitted to trade in the said birds until clearance by the Wildlife Warden.
Let a copy of this order be served by the Registry on the Chief Wildlife Warden of the State of West Bengal.
With the aforesaid direction, the instant writ petition shall stand disposed of.”
5. The appellant has filed a writ petition for quashing in connection with the Seizure Case No. 39/IMP/CL/Macaw/CUS/BCD/DPU/2021-2022 dt. 21.12.2021 wherein the Superintendent of Customs, Barasat Customs Division (DPU) had seized one number of Live Exotic Bird Macaw from the appellant on 24.12.2021 at 19.30 hours at Air Cargo Complex (Domestic) N.S.C.B.I. Airport, Dum Dum, Kolkata.
6. After the seizure of the said Live Exotic Bird Macaw, the respondent no. 3 had issued summon to the appellant under Section 108 of the Customs Act, 1962 directing the appellant to appear before the respondent no. 3 for the purpose of recording evidence of production of legal documents with respect of the above-mentioned seizure on 24.12.2021 at 07:15 P.M.
7. On 25.12.2021, the petitioner had made an application for release of Live Exotic Bird Macaw and accordingly, vide order dt. 25.12.2021, the Assistant Commissioner of Customs had released the bird provisionally on deposit of Cash Security of 10% of the book value of the bird i.e. Rs. 1,50,000/- and an on execution of bond for value of the bird, the appellant had deposited an amount of Rs. 15,000/- and the respondents have released the said bird provisionally in favour of the appellant with certain conditions.
8. With an intention to the streamline the process for import and possession of Exotic Live Species in India, the Ministry of Environment, Forest and Climate Change (hereinafter referred to as MOEFCC),-Government of India had introduced Voluntary Disclosure Scheme titled as “Advisory for Dealing with Import of Exotic Live Species in India and declaration of stock”.
9. The Central Government has given an option to all the citizens of India to voluntarily declare their stock of Exotic Live Species, if any, that lies in their possession with them, within six months from the concerned date in June, 2020 and further the last date for declaring has been extended till March, 2021. The said Scheme of the Central Government is made clear that who have made their voluntarily disclosure of Exotic Live Species were exempted from furnishing the purchased details of breeding details or the income source.
10. The Counsel for the appellant submits that in accordance with the said Advisory cum Voluntarily Disclosure Scheme, the appellant had declared particulars of their stock of the Exotic Live Species stating that the appellant is in possession of two male and two female Green Wing Macaw, (scientific name– Ara Chloroptera) on 15.11.2022.
11. The Counsel for the appellant further submits that subsequently, three numbers of Green Wing Macaw were b
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