ORDER

20.04.2021 By this application under Section 439 CrPC, petitioners, namely, 1) Shri Arjun Agarwal @ Arjun Agrawal, 2) Md Farooque and 3) Ayaz Khan, who were arrested on 15.03.2021, have prayed for granting them regular bail, in connection with Customs Case No. 05/CL/IMP/CUS/CPF/NML/2020-21, under Section 135 (a) & (b) of the Customs Act, 1962.

2. Heard the learned counsel for both the sides. 3. Also perused the record and the Case Diary.

4. On 14.03.2021, at around 23:30 hours., flying squad from Ghiladhari Police Station recovered 8 Silvery Marmoset, 2 Golden Headed Lion Tamarin and 2 Lutino blue and Gold Macaw of foreign origin from inside a Scorpio bearing Registration No. AS-01-EA-4707, coming from Merapani side towards Golaghat. On interrogation, the accused persons stated before the Police that the exotic animals and birds were collected from Imphal, Manipur and they were proceeding to Chennai. The Officer-in- Charge, Ghiladhari Police Station, Golaghat handed over the detected items, Scorpio vehicle and the accused persons along with exotic animals and birds, to Range Forest Officer, Jamuguri Range, Golaghat on 15.03.2021. Thereafter, it was informed by the Range Forest Officer, Jamuguri Range, Golaghat, Assam that the recovered animals and birds were exotic and beyond the scope of Wildlife Protection Act, 1972 and they requested the Customs Preventive Force, Numaligarh to prosecute the accused persons and seize the article & vehicle under Customs Act and accordingly, the Customs Preventive Force, Numaligarh collected the recovered articles along with vehicle in question and registered a case bearing Customs Case No. 05/CL/IMP/CUS/CPF/NML/2020-21 under Section 135 (a) & (b) of the Customs Act, 1962. The accused petitioners were also arrested on the same day, i.e., 15.03.2021, in connection with the aforesaid case and vehicle as well as the articles were seized.

5. It now contends that no offence under Section 135 (a) & (b) of the Customs Act, 1962, can be attributed against the present accused/petitioners and they have been arrested in connection with the instant case absolutely on suspicion. The Offence report reveals that the accused persons were coming from Manipur and were proceeding towards Chennai and there is no restriction on domestic trade, keeping, captive, breeding, buying, selling and exhibiting “exotic animal/exotic birds” under the Custom Act, 1962.

6. Heard Mr D Das, learned Senior Counsel for the petitioner and it is submitted that the seized animals and birds in the instant case do not fall under any schedule of the Wildlife Protection Act, 1972, nor are they notified under the Customs Act, they fall under the “Convention of International Trade in Endangered Species (CITES) of Wild Fauna and Flora” and till date no legislative measures have been undertaken to implement the provisions of CITES under any law in India and as such no criminality can be attributed upon the present accused/petitioners and as such, no penal action can be taken against them under the Customs Act, 1972. Further, it contends that the live animals or birds can only be seized at the point of import/export, however, in the instant case, the investigating authority can in no way show that the alleged seized articles have crossed any international border and it is apparent from the offence report that the articles were seized while coming from Merapani side towards Golaghat, which is no way near any point of import/export and in such event, the Customs Act cannot be invoked or attracted and there are no “ reasons to belief” as stated in Section 110 of the Customs Act, 1962. Further, it contends that the seized articles are not notified under Section 123 of the Act as well as no notification was issued under Section 11 B of the Act and nothing has been brought on record to support the allegation of smuggling.

7. Also heard Mr S C Keyal, learned Standing Counsel, Customs Department, who has opposed the bail prayer and has produced the