Full Judgment Text
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
MISCELLANEOUS APPLICATION NO. 390 OF 2023
WITH
I.A. NO. 50614 of 2023 :- Application for clarification of the
order dated 08.08.2022
IN
WRIT PETITION (CIVIL) NO. 540 OF 2022
SWETAB KUMAR … PETITIONER(S)
VERSUS
MINISTRY OF ENVIRONMENT, FOREST
AND CLIMATE CHANGE AND ORS. … RESPONDENT(S)
JUDGMENT
KRISHNA MURARI, J.
This Miscellaneous Application has been filed by the petitioner seeking
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clarification of our order dated 08 August, 2022 to the effect that the mere
filing of declaration under the notification dated 11.06.2020 does not preclude
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the Competent Authority from taking steps under Chapter VB of the Wild Life
(Protection) Act,1972 by means of amendment brought in the Act by Wild Life
(Protection) Amendment Act, 2022 and it shall be open for the Competent
Authority to prosecute the said declarants and also take consequential steps of
seizure and confiscation of the inventory declared under the said Advisory.
2. In order to bring clarity it may be necessary to narrate a few background
facts:-
Before the Wild Life (Protection) Amendment Act, 2022 was enforced,
Ministry of Environment, Forests and Climate Change issued a Notification
dated 11.06.2020 which was in the form of an Advisory dealing with import of
exotic live species of animals and birds in India and declaration of stock. The
said Advisory became the subject matter of challenge before various High
Courts of the country on somewhat identical grounds. The Advisory came to be
upheld by all the High Courts.
3. A Writ Petition under Article 32 of the Constitution of India in the nature
of Public Interest Litigation was filed before this Court as well challenging the
legality and validity of the aforesaid Notification dated 11.06.2020. The said
Writ Petition came to be dismissed by making certain observations vide order
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dated 08.08.2022, the clarification whereof is being sought by the petitioner by
means of the present application.
4. In the said Advisory, the object of the issuance of the same was postulated
as one being for streamlining the process of import, export and possession of
exotic live species. The Judgments rendered by different High Courts in
challenge to said Advisory held the Advisory to be a Amnesty Scheme. It may
also be relevant to point out that the Advisory was optional and permitted
making declarations up to and including 15.03.2021.
5. By our order dated 08.08.2022, while concurring with the view of
different High Courts, we had observed as under:-
“........ 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.”
6. Now, by the amending Act, exotic animals as listed in the appendices to
CITES are brought within the purview of the said Act. The amending Act,
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introduces Chapter VB to enforce provisions of CITES and animals listed in the
appendices to CITES find place in newly added Schedule IV to the said Act.
7. Learned counsel for the petitioner in support of the application seeking
clarification contends that in view of the amending Act, the effect of the
Advisory, order of four different High Courts as well as our order dated
08.08.2022 stand stricken off or overruled.
8. We have perused the amending Act. The scheme of Section 49M is that,
under sub-Section(1) 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. As a consequence, the animal stands forfeited to the Central
Government under Section 48Q and the person concerned is liable to
prosecution under Section 51 of the said Act. This is bound to affect a large
number of citizens especially pet owners, traders, farm owners, breeders and
bona fide enthusiasts.
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9. Further, the legal position to be taken into consideration is that an
Amendment Act cannot post facto criminalize possession. This proposition does
not require much deliberation and is well settled that retroactive criminal
legislation being violative of Article 20(1), one of the fundamental rights
guaranteed under part III of the Constitution is prohibited.
10. Reference may be made to the judgment in the case of T.Barai Vs. Henry
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Ah Hoe , this Court while expounding the provisions of Article 20(1) observed
as under :-
“22. It is only retroactive criminal legislation that is
prohibited under Article 20(1). The prohibition
contained in Article 20(1) is that no person shall be
convicted of any offence except for violation of a law
in force at the time of the commission of the act
charged as an offence prohibits nor shall he be
subjected to a penalty greater than that which might
have been inflicted under the law in force at the time
of the commission of the offence. It is quite clear that
insofar as the Central Amendment Act creates new
offences or enhances punishment for a particular type
of offence no person can be convicted by such ex post
facto law nor can the enhanced punishment prescribed
by the amendment be applicable. But insofar as the
Central Amendment Act reduces the punishment for an
offence punishable under Section 16(1)(a) of the Act,
there is no reason why the accused should not have the
benefit of such reduced punishment. The rule of
beneficial construction requires that even ex post facto
law of such a type should be applied to mitigate the
rigour of the law. The principle is based both on sound
1 (1983) 1 SCC 177
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reason and common sense. This finds support in the
following passage from Craies on Statute Law, 7th
Edn., at pp. 38889:
“A retrospective statute is different from an ex post
facto statute. “Every ex post facto law…” said
Chase, J., in the American case of Calder v. Bull
[3 US (3 Dall) 386: 1 L Ed 648 (1798)] “must
necessarily be retrospective, but every retrospective
law is not an ex post facto law. Every law that takes
away or impairs rights vested agreeably to existing
laws is retrospective, and is generally unjust and may
be oppressive; it is a good general rule that a law
should have no retrospect, but in cases in which the
laws may justly and for the benefit of the
community and also of individuals relate to a time
antecedent to their commencement: as statutes of
oblivion or of pardon. They are certainly retrospective,
and literally both concerning and after the facts
committed. But I do not consider any law ex post
facto within the prohibition that mollifies the rigour of
the criminal law, but only those that create or
aggravate the crime, or increase the punishment or
change the rules of evidence for the purpose of
conviction.... There is a great and apparent difference
between making an unlawful act lawful and the
making an innocent action criminal and punishing it
as a crime.”
11. Reference can also be made to a recent decision dated 23.08.2022
rendered by a three-Judge Bench of this Court in the case of Union of India
and Anr. Vs. M/s. Ganpati Dealcom Pvt. Ltd. , Civil Appeal No. 5783 of 2022.
12. In the said case, while considering the question whether the prohibition of
Benami Property Transaction Act, 1988 as amended by Benami Transactions
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(Prohibition) Amendment Act, 2016 has a retrospective application or is
prospective in nature held that concerned authorities cannot initiate or continue
criminal prosecution or confiscation proceedings for transactions entered into
prior to the coming into force of 2016 Act and as a consequence of the above
declaration, all such prosecutions or confiscation proceedings shall stand
quashed.
13. The matter can be viewed from yet another angle. 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 could well be
contended that Section 49M treats those who took benefit of an optional scheme
i.e., the Advisory, as against those who did not, despite the fact that the latter
were never put to notice of the consequences envisaged under Chapter VB,
Section 49 M and 49 Q thereof being pertinent. When the Advisory was issued,
the same was optional, aimed essentially at regulation of import/export and the
public at large was not put to notice that failure to opt therefor would lead to
penal and other consequences affecting their right to possess the animal.
14. Having gone through the amending Act, in order to achieve the desired
object of amending Act, of enforcing provisions of CITES, we are of the
considered opinion that the respondent must provide the option of Advisory to
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the citizens at large for a further reasonable period by putting them to notice of
the consequences of failure to make such registration/declaration.
15. We take note of the fact that Rules as envisaged under Section 49M (9)
have not yet been framed and in essence the provisions of Section 49M thus,
have not become operative. The respondent Authorities should, therefore while
framing the Rules, take into consideration the same.
16. In view of the aforesaid facts and discussion, the order dated 08.08.2022
passed by this Court calls for no modification or clarification as sought by the
petitioner.
17. 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.
18. In the end, we strongly recommend that before the respondent frames and
publishes Rules under Section 49M(9) of the amended Act, shall consider
extending the Advisory dated 11.06.2020 to the citizens at large for a further
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period of minimum six months or such further period which may be deemed
appropriate with putting the public at large to caution that, if the scheme is not
availed of and no declaration is made, the person concerned and the inventory in
the possession of the person shall be liable for action as per Chapter VB of the
Wild Life (Protection) Act, 1972 irrespective of the date of which the inventory
in question has come in the possession of such person.
19. With the aforesaid observations, the Miscellaneous Application stands
dismissed.
…...…...…....….......................…,J.
(KRISHNA MURARI)
……...….…....….......................…,J.
(SANJAY KAROL)
NEW DELHI;
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27 MARCH, 202 3
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