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IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)
I. Mahanty, Prakash Gupta, JJ.
Vivek Swami - Appellants
Vs.
Union of India and Ors. - Respondent
D.B. Civil Writ Petition No. 7491/2020
Decided On : 14.10.2020
CUSTOMS ACT - SECTION 108 - VOLUNTARY DISCLOSURE SCHEME - EXOTIC LIVE SPECIES - IMMUNITY FROM PROSECUTION - INTERPRETATION AND APPLICATION: 1. Section 108 of the Customs Act, 1962, which empowers customs officers to record voluntary statements during investigations, is intra vires the Constitution and cannot be challenged as manifestly arbitrary or unconstitutional. 2. The Voluntary Disclosure Scheme introduced by the Government of India for the declaration of exotic live species in domestic possession provides immunity from prosecution under the Customs Act and other laws for a limited period of six months. 3. A declarant under the Voluntary Disclosure Scheme cannot be compelled to divulge information related to the acquisition of exotic live species in his/her domestic possession, and no action can be initiated against such declarant based on the information provided in the declaration. 4. The immunity granted under the Voluntary Disclosure Scheme cannot be set aside by using Section 108 of the Customs Act to compel a declarant to divulge information about the exotic live species declared under the scheme.
Fact of the Case:
The petitioner, an animal and bird lover, filed a writ petition challenging the validity of Section 108 of the Customs Act, 1962, and seeking various reliefs, including a declaration that Section 108 is ultra vires the Constitution, a direction to the government to issue a circular clarifying the scope of Section 108, and a prohibition on the authorities from summoning the petitioner or seizing exotic species in his possession.
Finding of the Court:
The court held that Section 108 of the Customs Act is intra vires the Constitution and cannot be challenged as manifestly arbitrary or unconstitutional. The court also held that the Voluntary Disclosure Scheme introduced by the Government of India provides immunity from prosecution under the Customs Act and other laws for a limited period of six months. The court further held that a declarant under the Voluntary Disclosure Scheme cannot be compelled to divulge information related to the acquisition of exotic live species in his/her domestic possession, and no action can be initiated against such declarant based on the information provided in the declaration.
Issues: 1. Whether Section 108 of the Customs Act, 1962, is ultra vires the Constitution? 2. Whether the Voluntary Disclosure Scheme introduced by the Government of India provides immunity from prosecution under the Customs Act and other laws? 3. Whether a declarant under the Voluntary Disclosure Scheme can be compelled to divulge information related to the acquisition of exotic live species in his/her domestic possession?
Ratio Decidendi: 1. Section 108 of the Customs Act, 1962, is an important power conferred upon the Custom Officers for investigation under the offences punishable under the Act for recording voluntary statements. Any possibility of abuse of power conferred under Section 108 cannot be a ground to challenge the vires of Section 108 and one cannot deal with the same as manifestly arbitrary, unreasonable, unfair or unconstitutional. 2. The Voluntary Disclosure Scheme introduced by the Government of India is in public interest and for a limited period of six months. The scheme provides immunity from prosecution under the Customs Act and other laws for a limited period of six months to those who voluntarily declare their possession of exotic live species. 3. A declarant under the Voluntary Disclosure Scheme cannot be compelled to divulge information related to the acquisition of exotic live species in his/her domestic possession, as the immunity provided under the scheme cannot be set aside by using Section 108 of the Customs Act to compel a declarant to divulge information about the exotic live species declared under the scheme.
Final Decision: The court dismissed the writ petition, holding that Section 108 of the Customs Act is intra vires the Constitution and that the Voluntary Disclosure Scheme provides immunity from prosecution under the Customs Act and other laws for a limited period of six months. The court also held that a declarant under the Voluntary Disclosure Scheme cannot be compelled to divulge information related to the acquisition of exotic live species in his/her domestic possession.
JUDGMENT :
I. Mahanty, J.
1. The petitioner, namely one Vivek Swami claiming to be an animal and bird lover, has filed the present writ petition styled as a Public Interest Litigation with the following prayers:-
(b) To issue a writ of mandamus or in the nature of mandamus to the Respondent No. 2 to issue suitable Circular/Instructions to enable the citizens in domestic possession of exotic species to make declaration under the voluntary disclosure scheme without any fear of actions under the customs Act, 1962;
(c) To issue a writ of prohibition, or any other writ, order or direction, prohibiting the officers of the Respondent No. 2 and 3 from summoning the petitioner under Section 108 of the Customs Act, 1962 for seeking any information relating to the acquisition of the exotic species in possession of the petitioner in respect of which the petitioner is contemplating filing of a declaration under the Voluntary Disclosure Scheme issued by the Central Government vide the Advisory (at Annexure-2);
(d) To issue a writ of prohibition, or any other writ, order or direction, prohibiting the officers of the Respondents from taking any action of summoning the petitioner in connection with inquiry or seizure/confiscation of exotic species in domestic possession, under any law, to enable the petitioner to avail an opportunity to make its declaration under the prescribed format under the Voluntary Disclosure Scheme introduced by the Central Government;
(e) At the interim/ad-interim stage, pending final disposal of the instant writ petition, the Respondents may please be restrained from initiating any proceeding under the provisions of Customs Act, 1962 or any other law, either for summoning the petitioner or for seizure of the exotic species lying with the petitioner,
(f) Pass such further Orders as this Hon'ble Court may deem fit and proper in the circumstances of the case."
2. It appears from the pleadings that the Government of India, Ministry of Environment, Forest and Climate Change has issued an Advisory on 11.06.2020 (Annexure-1) under the heading "Government issues advisory to streamline the process for import and possession of exotic live species in India" and thereafter in furtherance thereof, a Voluntary Disclosure Scheme was issued by the Wildlife Division, Government of India under Annexure-2. The Voluntary Disclosure Scheme is apparently issued for the purpose of collecting stock information for persons who have in their possession "exotic live species" i.e. exotic live animals and birds within India through such voluntary disclosure and limited such disclosure upto the period till December, 2020. Such scheme was evolved by the Government of India since it did not possess necessary information of such stock of exotic species either by the State or the Union.
3. On perusal of the Voluntary Disclosure Scheme, it appears that options have been provided to persons to avail the benefit of the scheme within the stipulated time limit of six months and thereafter to maintain statutory records of addition or deletion in any declared stock of "exotic live species". The clear object behind the collection of such data appears to be to enable the Government to have necessary information/data, which would assist the Government to protect the wild fauna as well as protecting public interest.
4. In terms of the Voluntary Disclosure Scheme, the declarant would not be required to produce any documentation in relation to the "exotic live species", if such information has been provided to the Government in terms of the declaration appended to such scheme i.e. within six months from the date of issue of advi
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