Full Text
W.P.(C) 17087/2004
JUDGMENT
Through: Mr.Ashok Grover, Sr. Advocate with Ms.Meenakshi Singh, Adv.
Through: Ms.Monika Garg, Advocate
1. Whether the Reporters of local papers may be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest? G.S.SISTANI, J.
1. By the present petition filed under Article 226 of the Constitution of India, petitioner has invoked the extra-ordinary jurisdiction of this Court and seeks a direction to respondents no.3 and 4 to issue a No Objection Certificate for importing one animal trophy from the Republic of Tanzania, for his personal use.
2. Brief facts, which have led to filing of the present petition, as stated in the petition, are that the petitioner had visited Republic of Tanzania for a holiday and he went on a hunting spree to Farms of Solaces Game Reserves from 24th July to 31st August, 2001. During the course of hunting the petitioner hunted various species under a valid hunting permit granted to the petitioner by the Government of Tanzania, as detailed below:
┌────────────────────────────────────────────────────────────────────────────────────────┐ │
┌────────────────────────────────────────────────────────────────────────────────────────┐ │ Sl. Common Name Zoological Name Qty. CITES │ │ No. App. │ ├────────────────────────────────────────────────────────────────────────────────────────┤ │ 1. Warthog Phacochoereus 2 Nil │ │ aethiopicus │ │ 2. Hippo Hippopotamus 1 App. II │ │ shouldermount amphibious │ │ 3. Buffalo Syncerus caffer 1 Nil │ │ shouldermount │ │ 4. Eland Taurotragus oryx 1 Nil │ │ shouldermount │ │ 5. Lion rugmount Pathera leo (African 1 App. II │ │ lion) │ │ 2010:DHC:1975 │ │ 6. Bluewildbeest Connochaetes 2 Nil │ │ shouldermount taurnius │ │ 7. Bushback Tragelaphus scriptus 1 Nil │ │ shouldermount │ │ 8. Soptted Hyena Crocuta crocuta 1 Nil │ │ rugmount │ │ 9. Impala Aepyceros 2 Nil │ │ shouldermounts melampus │ │ 10 Bush Duiker Sylvicapra grimmia 1 Nil │ │ fullmount │ │ 11. Greater Kudu Tragelaphus 1 Nil │ │ shouldermount strepsiceros │ │ 12. Hippo foot ice Tippopotamus 1 App.II │ │ bucket ambhibius │ │ 13. Hartbeest Alcelaphus 2 Nil │ │ shouldermounts baselaphus │ │ 14. Zebra flatskins Equus burchelli 2 Nil │ │ tan & felt │ └────────────────────────────────────────────────────────────────────────────────────────┘
Buffalo Syncerus Caffer Caffer 1
│ │ 8. Zebra Equus Burcechelli 2 │ │ 9. Bushpig Potamochoerus porcus 1 │ │ 10 Hippo Hippopotamus amphibious 1 │ │ 11. Bushbuck Tragelphus scriptus 1 │ │ 12. Eland Taurotragus oryx 1 │ │ 13. Greater Kudu Strepsiceros strepsiceros 1 │ │ 14. Duiker Sylvicapra gimmia 1 │ │ 15. Leopard Fathera (Felis) pardus 1 │ └────────────────────────────────────────────────────────────────────────────────────────�
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24. Learned counsel for the respondents submits that the “No Objection Certificate” dated 27.5.2003 issued by Chief Wildlife Warden, Delhi, as also the Certificate dated 16.2.2004 issued by the Ministry of Environment and Forests relate only to the items, which are allowed to be imported as per the existing Exim Policy and did not relate to the Panther (Panthera Pardus), which is prohibited from being imported in accordance with Exim Policy, CITES, Wildlife (Protection) Act, 1972. Counsel further submits that “No Objection Certificate” dated 27.5.2003 issued by Chief Wildlife Warden, Delhi, clearly states that the import of animal trophies and articles of lookalike species will not be allowed.
25. Respondents have filed a reply to the application filed by the petitioner whereby the petitioner had brought on record subsequent events as also additional documents. In the application, the petitioner had specifically pointed out three instances where import licences have been issued by respondent no.2 for import of common tiger skin and common leopard hide on 23.3.2005. In reply to the application, the respondents have drawn out a distinction between the cases of the petitioner and the case relating to the import of one tiger / leopard skin, each, by Uttaranchal based Mahatmas for the purpose of prayers and meditation for Sadhana gifted by the King of Nepal.
26. It is contended by learned counsel for the respondents that in the case of Mahatmas, they have imported the tiger / leopard skins as gift on the strength of the import license / custom clearance permit issued by the Director General Foreign Trade. As per the provisions laid under para 2.19 of Foreign Trade Policy import of gift in cases other than free imports is allowed on the strength of Custom Clearance Permit (CCP), whereas the petitioner had applied for issuance of “No Objection Certificate” to import leopard skin / trophy, which falls under Chapter 43 (Exim Policy Code No.4302 19 90) of ITC (HS) classification of export and import. The import, under this code, is subject to Wildlife (Protection) Act, & CITES. Counsel for the respondents further contends that as per the provisions of Exim Policy entry no.4302 19 20 read together with the import licensing note no.6 and Section 2 (36) of Schedule (I) of the Wildlife (Protection) Act, 1972, the import of Leopard skin / trophy is prohibited. Counsel also contends that dealing with skin / trophies / animal articles is prohibited under Section 49B of the Wildlife (Protection) Act, 1972.
27. I have heard learned counsel for the parties and perused various documents filed along with the pleadings. The basic facts are not in dispute that the petitioner visited republic of Tanzania and went on a hunting spree to Farms of Selous Game Reserves during the period 24.7.2001 to 13.8.2001. In support of his visit to Tanzania for hunting spree, the petitioner has placed on record letter issued from Luke Samaras Sararis Limited dated 8.7.2002 as well as from the Ministry of Natural Resources and Tourism, United Republic of Tanzania, dated 17.7.2002 stating that various species hunted by the petitioner were legally acquired. On 2.8.2002, petitioner made an application to the Deputy Director, Wildlife Regional Office (NR), Ministry of Environment and Forests, seeking a “No Objection Certificate” for bringing trophies into India. On the same date, a similar application was also made by the petitioner to the Office of Chief Wildlife Warden, Delhi. By a letter dated 27.5.2003, the Office of the Conservator of Forests and Chief Wildlife Warden informed the petitioner that the office of the Conservator of Forests and Chief Wildlife Warden would have no objection for import of trophies, subject to the various conditions, as outlined in the aforesaid communication. In this communication, it was made clear that the import of animal trophies and articles of lookalike species would not be allowed. Another communication dated 10.7.2003 was issued to the petitioner by the Deputy Director, Wildlife Regional Office (NR), informing the petitioner that the competent authority has decided to allow import of trophies / skins from Tanzania on production of license from DGFT and valid CITES export permit from exporting country, however, the import of skull and skin of lookalike species i.e. Panthera Pardus will not be allowed. The petitioner, subsequently, sought permission to import other trophies other than the Panthera Pardus, which was allowed to the petitioner in the year 2004. Various representations made by the petitioner for import of Panthera Pardus, stands rejected. In this backdrop, the petitioner seeks a direction to the respondents to issue a “No Objection Certificate” to import Panthera Pardus and also seeks a direction to quash communication dated 10.7.2003, by virtue of which, the said request of the petitioner has been rejected.
28. The main thrust of the argument of learned senior counsel for the petitioner is that the petitioner had visited Republic of Tanzania for holiday and went for the hunting spree. During the course of his hunting spree he hunted species under valid hunting permit and on his return he approached the respondents for grant of No Objection Certificate. It has been strongly urged before this Court by senior counsel for the petitioner that petitioner is neither a dealer nor is an importer of wildlife and the import of articles / trophies are for his personal use. Senior counsel for the petitioner has relied upon a decision rendered by the Bombay High Court whereby one Sh. Zavaray S. Poonawala was given permission to import the said articles into India. Taking into consideration that the decision of the Bombay High Court is subject matter of a Special Leave Petition filed by the Union of India, wherein the Apex Court had granted leave and directed the status quo, with regard to trophies, to be maintained in the meanwhile, the petitioner can gain no advantage of the decision rendered.
29. Learned senior counsel for the petitioner has also strongly urged before this Court that there is no bar under the Wildlife (Protection) Act, 1972, and more so the action of the respondents is arbitrary in nature, irrational, not based on any rule of law and the “No Objection Certificate” is sought to import of a trophy of Panthera Pardus and not for any hide or skin or skull for which the case of the petitioner would clearly fall under Chapter 97 Exim Code 97050010 – Stuffed animals and not under Entry 4302 19 40 or 4302 19 90 under Chapter 43 of the Exim Policy.
30. I am unable to accept the submission of the learned senior counsel for the petitioner for the reasons that the Wildlife (Protection) Act, 1972 cannot be read in isolation. In response to the first application made by the petitioner on 20.11.2001, the Office of the Chief Wildlife Warden vide memo dated 3.12.2001 had informed the petitioner that they would have no objection, subject to the following conditions: “As per condition no.5, the import of trophies and animals articles of lookalike species will not be allowed.”
31. Thereafter the stand of the respondents has been consistent. In response to another applications made by the petitioner on 2.8.2002 and 18.3.2002 while granting the “No Objection Certificate” the Office of the Conservator of Forests and Chief Wildlife Warden by a communication dated 27.5.2003 made it clear that the “No Objection Certificate” would be granted, subject to the various conditions and condition no.5 remained unchanged. Petitioner was informed by the Deputy Director Wildlife Regional Office (NR) by a communication 2.8.2002, that import of skull and skin of lookalike species i.e. Panthera Pardus will not be allowed. The Convention on International Trade in Endangered Species of Wild Fauna (CITES) and Flora was signed at Washington, D.C., and came into existence on 3.3.1973. The introduction of Convention on International Trade in Endangered Species of Wild Fauna and Flora reads as under: “The Contracting States, Recognizing that wild fauna and flora in their many beautiful and varied forms are an irreplaceable part of the natural systems of the earth which must be protected for this and the generations to come; Conscious of the even-growing value of wild fauna and flora from aesthetic, scientific, cultural, recreational and economic points of view; Recognizing that peoples and States are and should be the best protectors of their own wild fauna and flora; Recognizing, in addition, that international cooperation is essential for the protection of certain species of wild fauna and flora against over-exploitation through international trade; Convinced of the urgency of taking appropriate measures to this end; Have agreed as follows:”
32. To protect certain species of Wild Fauna and Flora and against every exploitation of species through Foreign International Trade, certain regulations were formulated. The import and export of items into India are governed by the provisions of Foreign Trade (Development and Regulation) Act, 1992, and the Foreign Trade Policy. As per entry no.4302 19 40 of the Foreign Trade Policy, the import of tiger / cat skin is prohibited. There is no force in the submission of learned senior counsel for the petitioner that the case of the petitioner is not covered by entry no.4302 19 90 in view of the fact that the petitioner does not seek import of skin of Panthera Pardus. However, entry no.4402 19 90 is to be read alongwith import licensing note no.6 read with Section 2 (36) of Schedule (I) of the Wildlife (Protection) Act, 1972. As per note 6, the wild animals include their parts and products, as defined in Wildlife (Protection) Act, 1972, and Schedules
(I) to (IV) and the wild animals have been defined under Section 2
(36) of Wildlife (Protection) Act, which means any animal specified in Schedules (I) to (IV) and found wild in nature. Perusal of the Schedule shows that Panthera Pardus is listed at entry no.16B of Schedule (I) of the Wildlife (Protection) Act, 1972. Thus, a conjoint reading of the Foreign Trade Policy, more particularly entry no.4302 19 40 the Wildlife (Protection) Act, 1972, read with import licensing note 6 leaves no room for doubt that there is an express bar in importing Panthera Pardus.
33. Learned counsel for the respondents has unable to give a satisfactory explanation as to how import licenses were granted on 23.3.2005 in the case of Mahatmas except that the tiger / leopard skins were gifted by the King of Nepal for the purpose of prayer and meditation for Sadhana and their case would be covered under Para
2.19 of the Foreign Trade Policy, import of gift, whereas the case of the petitioner would fall under Chapter 43 of the Exim Policy. It is strange that what cannot be allowed directly is being allowed to be done indirectly. As per the provisions laid under Para 2.19 of the Foreign Trade Policy, merely because the skins were presented to Mahatmas cannot be a ground to treat the case of Mahatmas separately, however, issuance of a license to the Mahatmas by itself cannot be a ground to allow this petition in favour of the petitioner. Consequently, present petition is without any merit and the same is dismissed, leaving the parties to bear their own costs. G.S. SISTANI, J. April 09, 2010 'ssn‟