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Declarants Of Exotic Live Species As Per 2020 MoEFCC Advisory Immune From Prosecution Under Wild Life Act & Future Amendments : Supreme Court

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The Supreme Court on March 27 clarified that people who have actually made a statement of ownership of ‘unique live types’ in accordance with the 2020 advisory provided by the Ministry of Environment, Forest and Climate Change are immune from prosecution under the Wild Life (Protection) Act of 1972 or action under any future laws or changes.

The bench comprising of Justice Krishna Murari and Justice Sanjay Karol while hearing the application for explanation of its earlier choice said that, “Since vide order dated 08.08.2022 it has been held that Advisory was an Amnesty Scheme and declarants are immune from prosecution, the same would obviously mean that declarants are immune from prosecution or action under any future laws and amendments incorporated in the Wild Life(Protection) Act, 1972.”

An application was submitted looking for explanation of an order dated August 8th, 2022. The order specified that declarants would not be prosecuted, however after the Wild Life (Protection) Amendment Act of 2022, the Competent Authority is now complimentary to prosecute the declarants and take suitable actions, such as confiscation of the stock stated under the Advisory. The concern stays whether the modification overthrew the previous order.

Background

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Before the Wild Life (Protection) Amendment Act, 2022 was implemented, Ministry of Environment, Forests and Climate Change provided a Notification outdated 11.06.2020 which remained in the form of an Advisory handling import of unique live types of animals and birds in India and statement of stock. The said Advisory ended up being the topic of difficulty prior to different High Courts of the nation on rather similar premises. The Advisory became promoted by all the High Courts.

The Notification explained that “exotic live species” utilized in this advisory will be interpreted to indicate just “the animals named under the Appendices I, II and III of the Convention of International Trade in Endangered Species (CITES) of Wild Fauna and Flora and does not include species from the Schedules of the Wild Life (Protection) Act 1972.”

The item of the Advisory was to enhance the procedure of import, export and ownership of unique live types. The Judgments rendered by various High Courts in difficulty to said Advisory held the Advisory to be a Amnesty Scheme.

The Advisory was optional and allowed making statements approximately and consisting of 15.03.2021.

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A PIL was submitted prior to the Supreme Court challenging the legality and credibility of the aforesaid Notification outdated 11.06.2020. The said Writ Petition was dismissed by making sure observations vide order dated 08.08.2022, the explanation whereof is being looked for by the petitioner by ways of today application.

The Apex Court by order dated 08.08.2022 held that “Once a declaration within the window of six months as provided under the Advisory is made, the exotic live species, including its progeny, the declarant or transferee(s) are fully exempt from explaining the source of exotic live species. The exotic live species which is declared or its progeny, are not liable to confiscation or seizure by any Central Agency or State Agency. Consequently, the declarant or the transferee(s) of such declarant will be immune from prosecution under any civil, fiscal and criminal statute by any Central or State Agency. Any other interpretation would lead to absurdity.”

Later, Wild Life Act (Act) was modified in 2022 unique animals as noted in the appendices to CITES are brought within the province of the said Act. The changing Act, presents Chapter VB to implement arrangements of CITES and animals noted in the appendices to CITES were included Schedule IV to the Act that make the ownership of such unique animals punishable.

The candidate looking for explanation competed that in view of the changing Act, the impact of the Advisory, order of 4 various High Courts along with our order dated 08.08.2022 stand stricken off or overthrown.

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Analysis by the Court

The court said that according to area 49M of Wild Life Act included by 2022 modification “every person in possession of a species listed in Schedule IV is required to report details of such animal to the Management Authority, which, as per sub-Section(2), is required to satisfy itself that the animal has not been possessed by contravention of any law and only after such satisfaction the authority shall issue a registration certificate permitting retention of such animal. If the Authority is not so satisfied, sub-Section(8) makes such possession illegal.”

The effect of the arrangement will be that the animal will be surrendered to the Central Government under Section 48Q and the individual worried is responsible to prosecution under Section 51 of the said Act.

The Apex Court mentioned that “This is bound to affect a large number of citizens especially pet owners, traders, farm owners, breeders and bona fide enthusiasts.”

Further the Court by describing the Union of India and Anr. v M/s. Ganpati Dealcom Pvt. Ltd. , Civil Appeal No. 5783 of 2022. kept in mind that the Amendment Act cannot publish facto criminalize ownership. It is well settled that retroactive criminal legislation is violative of Article 20(1), among the essential rights ensured under part III of the Constitution is restricted.

The Court even more explained that “Many people come to possess animals as pets from the open market and possibility of producing a paper trail, especially after several years, is next to impossible.

It was likewise kept in mind that when the Advisory was provided, the exact same was optional, intended basically at guideline of import/export and the general public at big was not put to discover that failure to choose would result in chastening and other repercussions impacting their right to have the animal.

The Court suggested that “in order to achieve the desired object of amending Act, of enforcing provisions of CITES, the respondent must provide the option of Advisory to the citizens at large for a further reasonable period by putting them to notice of the consequences of failure to make such registration/declaration”.

The Court even more clarified that, “Advisory was an Amnesty Scheme and declarants are immune from prosecution, the same would obviously mean that declarants are immune from prosecution or action under any future laws and amendments incorporated in the Wild Life(Protection) Act, 1972.”

The Apex Court likewise provided strong suggestion to the ministry think about extending the Advisory outdated 11.06.2020 to the people at big for a more duration of minimum 6 months or such additional duration which might be considered suitable with putting the general public at big to warn that, if the plan is not get and no statement is made, the individual worried and the stock in the ownership of the individual will be responsible for action according to Chapter VB of the Wild Life (Protection) Act, 1972 irrespective of the date of which the stock in concern has actually can be found in the ownership of such individual.

Case TitleSwetab Kumar v. Ministry of Environment, Forest And Climate Change and Ors.

Citation : 2023 LiveLaw (SC)245

Click Here To Read/Download Judgment

Wild Life (Protection) Act of 1972- Individuals who have actually made a statement of ownership of ‘unique live types’ in accordance with the advisory provided by the Ministry of Environment, Forest and Climate Change are immune from prosecution-Since it has actually been held that Advisory was an Amnesty Scheme and declarants are immune from prosecution, the exact same would clearly indicate that declarants are immune from prosecution or action under any future laws and changes integrated in the Wild Life(Protection) Act, 1972.

Constitution of India 1950- Article 20(1)- the legal position to be considered is that an Amendment Act cannot publish facto criminalize ownership. This proposal does not need much consideration and is well settled that retroactive criminal legislation being violative of Article 20(1), among the essential rights ensured under part III of the Constitution is restricted.

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