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IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Hitesh Kumar Sarma, J.
Arjun Agrawal @ Arjun Agarwal and Ors. – Petitioners
Versus
The Union of India, Represented by the Customs Department – Respondents
Crl.Pet./339 of 2021
Decided On : 06-12-2021
Criminal Procedure code, 1973 - Section 482 - Quashment of Customs case - Customs Act, 1962 - Section 135(a) and (b) , 123 (2) - Wildlife Protection Act, 1972 - Flying squad recovered exotic animals and birds - Notified goods - Prohibited goods – Petitioner contended they are breeders of exotic species of animals and birds and purchased seized birds and animals where they are freely available in open market – Petitioner specifically submitted that there is no instance, to indicate, even remotely, that birds and animals were imported to India and, the offence alleged against the petitioners is not maintainable in instant case – Whether there is any prohibition imposed under other law which is for time being in force.
Finding of the court:
Goods involved are non-notified goods under Section 123 of the Customs Act and are freely importable under Open General Licence and are freely available in the market - Confiscation of goods has been ordered on ground that goods are of foreign origin and are in trade quantities and that the goods are not covered by any bills for their licit import into the country - Merely because the goods are in trade quantities and there are foreign markings on the goods, that by itself cannot lead to an inference that the goods have been smuggled into the country - The appellants in their initial statements have stated that they are doing business in such goods and the goods have been purchased by them for business purposes and that they are not importers - Seized animals and birds are not ‘prohibited goods’ under any other law as provided in Section 2(33) of the Customs Act, 1962 - Seized birds and animals are not included in any of the Schedule of the Wild Life (Protection) Act, 1972 - Seizure of birds and animals, in instant case, has no approval of any law relevant for purpose of the offence alleged in instant case.
Result: Petition disposed of.
JUDGMENT :
This criminal petition has been filed under Section 482 of the Cr.PC seeking quashment of Customs case No. 05/CL/IMP/CUS/CPF/NML/2020-2021 dated 15.03.2021 pending in the court of the learned Chief Judicial Magistrate, Golaghat.
2. Heard Mr. D Saikia, learned senior counsel for the petitioners. Also heard Mr. SC Keyal, learned Standing Counsel, respondent/Customs Department.
3. The fact of the case is that on 14.03.2021, at about 23:30 hours (11:30 pm), a flying squad from Ghiladhari Police Station recovered 8 (eight) silvery marmosets, 2 (two) golden headed lion tamarins and 2 (two) lutino blue and gold macaws from a Scorpio vehicle bearing registration No. AS-01/EA-4707 travelling from Merapani to Golaghat. The three accused persons/petitioners herein, upon interrogation, stated that the exotic animals and birds so recovered were collected from Imphal, Manipur and were being taken to Chennai. On 15.03.2021, the Officer-In-Charge, Ghiladhari Police Station, Golaghat handed over the detected items, i.e., the recovered animals and birds and the vehicle along with the accused persons/petitioners to the Range Forest Officer, Jamuguri Range, Golaghat who in turn informed that the recovered animals and birds being exotic were beyond the scope of the Wildlife Protection Act, 1972 and therefore, requested the Customs Preventive Force Numaligarh to proceed against the petitioners and seized the vehicle under the Customs Act, 1962. Thereafter, the accused persons/petitioners herein were arrested on the same day, i.e. on 15.03.2021 in connection with the aforesaid case and the vehicle along with the recovered articles was seized. The rescued animals being in live condition and there being no rescue cum rehabilitation centre were transferred to the Assam State Zoo cum Botanical Garden Authority, Guwahati on the same day for their proper health care, treatment as well as safety.
4. Accordingly, the aforesaid Customs case No. 05/CL/IMP/CUS/CPF/NML/2020-2021 was registered and investigated into by the Customs Department.
5. The basic contention of the petitioners is that they are breeders of exotic species of animals and birds and purchased the seized birds and animals from Imphal where they are freely available in open market. It has further been submitted, in the light of the above contention, that the respondent/Department has registered the case for offence under Section 135(a) and (b) of the Customs Act, 1962. According to Mr. Saikia, learned Senior counsel for the petitioners, no offence has been committed by the petitioners, not to speak of an offence under Section 135(a) and (b) of the Customs Act, 1962.
6. Section 135(a) and (b) of the Customs Act, 1962 is extracted below for convenience of understanding:
(a) is in relation to any goods in any way knowingly concerned in misdeclaration of value or in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any prohibition for the time being imposed under this Act or any other law for the time being in force with respect to such goods; or
(b) acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under Section 111 or Section 113, as the case may be; or”
7. Section 135 (b) of the Customs Act, 1962 provides that if any person acquires/possesses/purchases/sells which he knows or has reason to believe are liable to confiscation under Section 111 or under Section 113, as the case may be, the same is made punishable with imprisonment with fine.
8. Referring to the said provisions, Mr. Saikia has contended that for confiscation of improperly imported goods under Section 111 of the Customs Act, 1962 such goods must be dutiable or prohibited goods. Simi
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