Gauhati High Court
Page No.# 1/6 vs The Union Of India on 20 April, 2021
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
Page No.# 1/6
GAHC010059512021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./743/2021
ARJUN AGARWAL @ ARJUN AGARWAL AND 2 ORS
S/O LATE PREM SANKAR AGARWAL @ LATE PREM SANKAR AGARWAL,
R/O 26/5,18TH AVENUE, ASHOK NAGAR, CHENNAI-600083
2: MD. FAROOQUE
S/O MD. ROMIZUDDIN
R/O MINUTHONG HAFIZ HATTA
PORAMPAT
DIST-IMPHAL EAST
MANIPUR-795005
3: AYAZ KHAN
S/O NAZIRUDDIN
R/O MOIJING WANGNATABA KHONG MANUNG
P.O. AND P.S.-THOUBAL
MANIPUR-79513
VERSUS
THE UNION OF INDIA
REPRESENTED BY THE STANDING COUNSEL, CUSTOM DEPARTMENT
Advocate for the Petitioner : MR. D DAS SR. ADV
Advocate for the Respondent : MR. S C KEYAL, SC, CUSTOMS
BEFORE
HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN
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 Page No.# 2/6 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 Page No.# 3/6 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 status report of the case and the materials so far collected, which are as below:-
"The accused petitioners have illegally brought into India foreign origin livestock of animals and birds such as Golden headed Lion Tamarin, Silvery Marmoset, Lutino Gold and Blue Macaw, habitat of which were nowhere to be found in India, in violation of Livestock Importation Act, 1898, as well as in violation of existing Import Policy of Govt. of India. The import of livestock is allowed against an import licence issued by the Directorate General of Foreign Trade (DGFT) under the existing import policy and fulfillment of the sanitary conditions as specified in Veterinary Health Certificate of India and issued by the official veterinarian of the exporting country or country of origin. All live animals are allowed to be imported only through the seaports or airports located at Delhi, Mumbai, Chennai and Kolkata.
The accused/petitioners failed to produce any legal document of importation of the subject animals and birds into India legally under license through the designated ports. The accused/petitioners have admitted that they were in possession of foreign origin animals and birds. These animals and birds are enlisted in Chapter 1 of Customs Tariff Act, 1975, against HSN code 01061900 & 01063200 respectively. It is illegal to be in possession with 'prohibited goods' under Section 2(33)Customs Act, 1962.
The import of livestock is allowed against an import license issued by the Directorate General of Foreign Trade (DGFT) under the existing import policy and fulfillment of the sanitary conditions as specified in Veterinary Health Certificate of India and issued by the official veterinarian of the exporting country or country of origin. All live animals are allowed to be imported only through the seaports or airports located at Delhi, Mumbai, Chennai and Page No.# 4/6 Kolkata.
The accused persons were carrying the exotic animals and birds without any legitimate documents. So, the exotic animals and birds so recovered were seized on 15.03.2021 under Section 110 of the Customs Act, 1962, on reasonable belief that the animals and birds were smuggled into India in contravention of the provisions of the Customs Act, 1962. The exotic birds and animals were illegally imported to India through a route not specified under Section 7 (1) (c) violating the provisions of Sections 11, 11(c) of the Customs Act, 1962 and other Acts and Orders for the time being in force. The value of the seized animals and birds were ascertained at Rs. 4,50,00,000/- (Rupees Four Crore Fifty Lakhs only) as per letter No. ASZ/Animal Health/Misc dated 23rd March, 2021, from the Divisional Forest Officer, Assam State Zoo Division. Such a high value cognizable offence requires in depth investigation to unearth all aspects of the case and release of the accused persons on bail at this point of time will hamper the investigation.
The 02 nos. of Golden headed Lion Tamarin so recovered is a type of monkey found in Brazil, the 08 nos. of Silvery Marmoset is another type of monkey found in Amazon Rain forest and the 02 nos. of Lutino Gold & Blue Macaw is found in Australia. The habitat of these animals is nowhere to be found in India. Moreover, the accused person mentioned in his voluntary statement that the animals and birds were acquired from Ima market, Imphal, which is near to international border with Myanmar. The accused person could not produce any legitimate documents like bill/Cash memos/invoices in support of legal possession/purchase/transportation/ importation etc. In view of the above, there is a reason to believe that the animals and birds were illegally imported to India and the accused person is involved in the illegal import of exotic animals and birds in India, in violation of the Livestock Transportation Act as well as the import policy of Government of India. In the instant case, the value of the seized animals and birds are very high, as such, it is, therefore, prayed before this Court, not to allow bail to the accused/petitioners.
8. The prime contention of the learned counsel for the petitioner, that the animals and birds so seized were carried/transported for the domestic purpose and as the specific notification under Section 11 B of the Act is not brought on record by prosecution, so seizure as well as arrest of accused persons is bad in law. Further, in view of the place of seizure, the same cannot be regarded as export and import point. Reliance has been placed on the decision of Dinesh Chandra -Vs- UOI, in PIL Civil No. Page No.# 5/6 12032/2020 and also the decision rendered in Custom Appeal No. 50170/2021, wherein it has been held that exotic species of birds or anything else are not covered under the Schedule of Wildlife Protection Act, and as such there cannot be any restriction in their domestic trade, possession or keep for breeding in India.
9. It is stated that in similar offence, bail has been granted to the accused in BA No. 1611/2020 (Narsimha Reddy & Ors. -Vs- State of Assam & Forest Department). It is to be noted that the said CR Case No. 111/2020 was registered under Section 44/48A/51 of the Wildlife Protection Act and whereas, the present case has been registered under the Customs Act.
10. I have carefully gone through the matters on record and the respective submissions of both the parties.
11. Although no specific notification under Section 11-B of the Customs Act is brought on record about the species of exotic birds/animals under the Customs Act, but such criminals and birds of foreign origin enlisted in the Customs Tariff Act and in view of the fact the petitioners did not produce any sort of document, whatsoever, in support of possession of such valuable animals and birds, which is more than 4 crores and any other supportive evidence, it is difficult to accept that the same has been transported for domestic purpose. Having regard to the submissions of the Customs Department that the area from which it was purchased is nearer to the international border of Myanmar, the matter of smuggling and/or illegal import to India cannot be ruled out. Further, as per the Schedule I of the Import Policy, 2017, import of live animals, other than wild animals and as defined under Wildlife Protection Act, 1972 (as amended) is permitted against a licence to Zoos and Zoological Park, Circus Companies, Private individuals on the recommendation of the Chief Wildlife Warden of a State Government, subject to provision of CITES.
12. As in the present case, the petitioners have no sort of any documents in their possession in support of the seized animals. The Customs Officer, under Section 110 the Customs Act, is empowered to seize such articles, which are liable to confiscation under Section 111 of the Act. Further, Section 123 of the Act provides that where any goods are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods lies upon the person, from whose possession the goods were seized. In view of the provision, burden lies upon the accused to justify that those are not smuggled goods. As has been discussed above, the accused could not justify possession of such valuable animals and birds of foreign origin.
13. All the accused persons were apprehended at odd hours of night, at 11:30 pm, through a route not specified under Section 7 (1) (c), violating the provisions of Section 11, 11 (c) of the Customs Act. In Page No.# 6/6 absence of any legitimate document in support of purchase of seized articles, allegation of prosecution cannot be denuded. Market value of the exotic animals and birds assessed by DFO (annexed with the report) is another aspect, which has raised the occasion to believe that the petitioners may be involved in smuggling activities. As per Section 104 (4) of the Customs Act, any offence relating to prohibited goods is cognizable offence and in view of the high value of the articles, in-depth investigation is required to unearth the entire gamut.
14. Considering all above, bail prayer stands rejected at this stage in the interest of investigation.
JUDGE Comparing Assistant