The court held that possession of undeclared exotic species is not punishable under existing laws, affirming that legislative changes cannot be mandated by judiciary unless there is a violation of fundamental rights.

JUDGMENT

Indrajit Mahanty, CJ. - Rule made returnable forthwith. Heard all parties.

2. The above PIL petition is filed by a law graduate in public interest with prayers to seek issuance of show cause to the respondents as to why a writ of or in the nature of Mandamus shall not be issued declaring that possession of all exotic animals/ birds by persons (other than those who have made voluntary disclosure with the time contemplated in Advisory, dated 11.06.2020 (Annexure -3), issued by Respondent No. 1, is illegal and the person in possession of such exotic animals/ birds be forthwith prosecuted for violation under the CUSTOMS ACT by Department of Revenue Intelligence and under the Wild Life (Protection) Act, 1972.

3. Petitioner relies upon news articles (Annexure - 1 & 2) to demonstrate that there is proliferation of trade in exotic wildlife species in the State.

4. Petitioner submits that Birds and Animals can be categorized under following heads via a) Indigenous/ local or Indian animal species and b) Exotic/ Foreign or non-Indian animal species. Petitioner further submits that there is no provision/ prohibition under the Wild Life (Protection) Act, 1972 qua the second category. Petitioner further submits that Respondent No. 1 issued an Advisory dated 11.06.2020 for dealing with import of exotic live species in India and declaration of stock within six months of the issuance of the Advisory.

5. Petitioner in his written submissions further contends that -

'3. Significantly, if a person who has availed the Advisory and made Voluntary disclosure is treated at par with a person who has not made declaration during the time period contemplated in the advisory; the legislative intent behind issuing advisory i.e., to grant immunity to a person making voluntary disclosure within stipulated time stands defeated and the Advisory serves no purpose. By not carrying out amendments in the two Acts granting immunity from prosecution and forfeiture to a person who has not made voluntary disclosure under the Advisory issued by Respondent No. 1 and thereby treating him at par with a compliant citizen would be violative of Article 14 of Constitution of India.

4. The protection to the person found with exotic species as noticed in the judgments of in the matter of Anil Naidu v. UOI (Writ Petition No. 807 of 2019) vide order dated 11.09.2019 and Allahabad High Court in the matter of Dinesh Chandra v. UOI (PIL civil 22903 of 2019) vide order dated 30.08.2019 against coercive steps and prosecution under The Wild Life Act, 1972 and The CUSTOMS ACT 1962 is prior to issuance of Advisory by Respondent No. 1 on 11.06.2020. Bombay High Court in the matter of Imran Latif v. DRI (Writ Petition No. 4779 of 2019) vide order dated 27.09.2019 held such offence under CUSTOMS ACT , 1962 as bailable. Exotic species Birds and animals are subjected to torture while being caught and smuggled. This is offence of a grave magnitude and person smuggling or possessing such exotic species must be subjected to custodial interrogation to uncover the entire chain of criminals involved in the heinous crime. The offence of smuggling exotic species and possession of such species (not immune by timely disclosure as pert the Advisory) must be specifically made non bailable under the CUSTOMS ACT , 1962, and exotic species must be added in the Wild Life (Protection) Act, 1972.

5. It would thus be in the public interest, if this Hon'ble Court would direct or at least recommend appropriate amendment in The Wild Life(Protection) A