The petitioners are dealers and artisans in ivory who carry on the business and trade in ivory including the manufacture of articles derived from ivory lawfully imported into India prior to the ban. They imported part of the stock of mammoth ivory from Russia and part of it from Hong Kong for the purposes of the business.
It is further asserted that ivory derived from mammoth, extinct species of wild animal, and ivory derived from elephants cannot be treated at par or on the same footing as both are different from each other and can be distinguished.
Therefore, they plead that they are persons affected by the Amendment Act 44 of 1991. The Amendment Act has been enacted to carry out the mandate of the directive principles enshrined in Article 48A of the Constitution of India:
"Protection and improvement of environment and safeguarding of forests and wild life: The State shall endeavor to protect and improve the environment and to safeguard the forests and wild life of the country."
The Court reasoned, that the Amendment Act explicitly bans the use of ivory for commercial use: "No person can commence or carry on business as a dealer in ivory imported into India or articles made, there from, or as manufacturer of such articles." The Court puts special emphasis on the words "ivory imported into India", as being designed deliberately. The intention is to cover all descriptions of ivory, including from mammoth.
Impugned legislation falls within the power and competence of the Parliament as the same is meant to protect the Indian elephant. To achieve that purpose, the Parliament has undoubted power to deal with matters which, effectuate the same. It can legislate with regard to all ancillary and subsidiary subjects including the imposition of ban on trade in imported ivory of all descriptions, whether drawn from mammoth or elephant, for the salutary purpose of the preservation of the Indian elephant.
Based on the above reasoning, the Court dismissed the appeal petition. (Provided by: UNODC SHERLOC)
The appellants had imported mammoth fossil said to be of an extinct species in the year 1937.The stock of mammoth fossil held by the appellants is said to be periodically checked by the statutory authorities.
Mammoth is said to be pre-historic animal which disappeared due to climatic conditions prevailing in Alaska and Siberia. According to the appellants the distinction between mammoth and elephant ivory is that whereas mammoth belongs to an extinct species, the ivory of elephant is of an extant living animal. The appellants state that mammoth ivory is distinguishable by visual and non-destructive means vis-a-vis elephant ivory and even in Convention on International Trade in Endangered Species (CITES) their distinguishing features have been pointed out.
The learned counsel of the appellants would contend that trade in mammoth fossil ivory is not banned either under the said Act or under the CITES and, thus, the impugned judgment of the High Courtcannot be sustained.
As mammoth is an extinct species and as what is being used for carving is its fossil which is called ivory, because it has white and hard dentine substance which is also available in other animals, namely, Whale, Walrus, Hippos and warthog; it was urged, they cannot be included in the term "ivory" within the meaning ofthe provisions, of the said Act.
The Court reasoned:
That the object of the Parliament, when adopting the Act, was not only to ban trade in imported elephant ivory but ivory of every description so that poaching of elephant can be effectively restricted. "Ivory", therefore, even as per dictionary meaning is not confined to elephant ivory.
In State of West Bengal v. Union of India , the learned Chief Justice stated the law thus: "The Court must ascertain the intention of the Legislature by directing its attention not merely to the clauses to be construed but to the entire statute.
In this case the petitioner had challenged the constitutional validity of Amendment Act 44, 1991, to the Constitution of India, which prohibited trade in imported ivory. The appeals which arise out of a common judgment and order dated 20.3.1997 passed by a Division Bench of the Delhi High Court. The appellants are engaged in the business of manufacture and sale of articles relating to art and craft manufactured from ivory. The appellants imported ivory from African countries. They have manufactured certain articles out of the same. It is not in dispute that the said import had legally been made as there did not exist any restriction in that regard.
The learned senior counsel appearing for the appellants, urged that the impugned provisions of the Amendment Act violate Article 19(1)(g) of the Constitution of India in as much as thereby the right of the appellant to trade in ivory has unjustly been prohibited. The learned counsel would submit that restrictions imposed by reason of the said Amendment Act being excessive, the same must be held to be confiscatory in nature. The Amending Act is also ultra vires Article 14 of the Constitution of India, being irrational and arbitrary. The learned counsel has drawn attention to the fact that the population of elephants has gone up in several countries, e.g., Botswana, South Africa, Namibia and Zimbabwe, and these countries have been permitted by Convention on International Trade in Endangered species of Wild Fauna and Flora (CITES) to deal in ivory subject of course to certain restrictions. Attention has further been drawn to the fact that ivory which was placed in Appendix-I of the CITES has now been placed in Appendix-II thereof. It was also submitted that ivory collected from dead animals should also be permitted to be dealt in.
The Court reasoned, that trade in imported ivory being dangerous to ecology has been regulated by imposing total prohibition by Wildlife (Protection) Amending Act of 1991. Such Amending Act indirectly seeks to protect Indian Elephant and to arrest their further depletion. Traders and non-traders constitute two different classes and the classification is founded on an intelligible difference clearly distinguishing one from the other. "A machinery must be so construed as to effectuate the liability imposed by the charging Section and to make the machinery workable."
The Supreme Court held that the Wildlife (Protection) Act of 1991 indirectly seeks to protect Indian elephant and to restrict its further depletion, and so, the appellant petition was dismissed. (Provided by: UNODC SHERLOC)
The petitioner aggrieved by the letter dated 23.6.2003 whereby it has been informed by the Ministry of Environment and Forest that the petitioner's request of import of Caiman Crocodilus Fuscus skin from USA cannot be granted. The petitioner intended to import tanned skin of Caiman Crocodilus Fuscus from the USA. This species of crocodile is found in South America. It is not found in India. The petitioner obtained a permit from the Convention of International Trade in Endangered Species of Wild Fauna and Flora (CITES) which is valid up to 17.10.2003. This permit is necessary for the export/re-export of, inter alia, tanned skin of Caiman Crocodilus Fuscus from USA.
The petitioner submits that under the export and import policy for 2002-2007, the import of tanned skin of Caiman Crocodilus Fuscus does not require any license and is free from any condition with regard toobtaining any no objection from the Wild Life Authorities under the Wild Life (Protection) Act, 1972.
The petitioner has referred to Section VIII,Chapter 41 of the ITC(HS) Classification of Export and Import Items under the Exim Policy 2002-2007. The Heading of Chapter 41 is "Raw Hides and Skins (other than Fur Skins) and Leather", which indicates that the relevant import materialis indicated as "free" under the policy and no condition to the policy is attached.
The respondent made a two-fold submission. In the first instance, he submitted that Chapter 41 would not govern the import in question. In fact, it would be Chapter 1 of Section 1 which governs the import of "live animals". In the second instance, he submitted that if the import is governed by Chapter 41 and in particular Exim Code 41064000, the import would still be subject to Import Licensing Note appended at the end of Chapter 41.
The court concluded:
That the said items cannot be classified as "live animals". Furthermore, there can be no objection to the import of the said items from the angle of the Wild Life (Protection) Act, 1972.No"NOC" is required under the Wild Life (Protection) Act, 1972 and as such the goods be released by theCustoms Authorities subject to the petitioner complying with all other applicable conditions under the Customs Act. (Provided by: UNODC SHERLOC)
On 6th April 1996, 16th April 1996 and 12th May 1996, M/s Istihaq & Co. supplied various types of shawls to the petitioner company. The supplies included shawls which have been seized by the respondent.On 7th November, 1996, the petitioner No. 2 made arrangement for the export of the consignment containing some shawls, scarfs and kimonos (hereinafter referred to as the "export material") to England which were deposited at the Cargo Terminal of the Indira Gandhi International Airport, to be air lifted to England.
The export material was inspected by the Customs Authorities at the Airport, who objected to the export of some of the shawls suspecting them to be shahtoosh shawls and refused their export and detained the saidshawls.
On 11th November, 1996 two Panches namely Shri Charanjeet Singh Grover and Shri Ram Kumar were called. The proceedings before the Panches are recorded in the Punchnama dated 11th November, 1996. The Punchnama recorded as follows:
The respondents suspecting 12 shawls to be shahtoosh shawls out of the export material allegedly having been manufactured out of shahtoosh wool took the samples for forensic test to the Wildlife Institute of India.
The shawls and the remaining export material were detained and seized pending an inquiry in the matter on the ground that the shawls which are made of shahtoosh wool are liable to be confiscated under the Customs Act, under the Wildlife Act and the remaining export material was used for concealment of the seized shawls. (Provided by: UNODC SHERLOC)
The question raised in this appeal is: whether a specified officer empowered under Section 54(1) of the Wild Life (Protection) Act, 1972 as amended by the Wild Life(Protection) Amendment Act, 2002 (Act 16 of 2003) to compound offences has power, competence and authority, on payment of a sum of money by way of composition of the offence by a person who is suspected to have committed offence against the Act, to order forfeiture of the seized items.
On July 25, 2004 itself, the Divisional Forest Officer, Medak recorded the statement of respondent nos. 1 to 3 and two other persons. They gave some explanation with regard to the gunny bag containing wild pig and three rabbits and the rifles in their possession but stated that the offence was done by them in ignorance and they were willing to pay money by way of composition of the offence.
The respondent nos. 1, 2 and 3 challenged the above three orders insofar as forfeiture of the vehicle and two rifles to the state government was concerned in a petition filed under Article 226 of the Constitution of India before the Andhra Pradesh High Court. The Single Judge of the High Court, on hearing the parties, by his judgment dated March 29, 2005 set aside the order of forfeiture of the vehicle and the two rifles.
The learned senior counsel for the appellants invited attention to Section 54 of the 1972 Act, particularly sub-section (2) thereof prior to its amendment by Act 16 of 2003 and the amendedSection 54 (2) whereby the portion, "the property other than Government property, if any, seized, shall bereleased" has been omitted and submitted that the legislative intent was clear that release of seized items was not permissible and it was competent for the specified officer empowered to compound offences to order forfeiture of the seized items to the state government. In this regard, learned senior counsel also referred to Section 39 (1)(d) of the 1972 Act and submitted that the property seized from a person accused of commission of an offence against the 1972 Act, irrespective of the fact that offence has been compounded, stands forfeitedand the property becomes the property of the state government or central government, as the case may be.
It is true that by Act 16 of 2003 (The Statement of Objects and Reasons (Act 16 of 2003) annexed with Wild Life (Protection) Amendment Bill, 2002), the Parliament has consciously deleted from Section 54 the provision concerning release of seized property liable to be forfeited on payment of value of such property but the plain language that is retained in Section 54 (2) after amendment which reads, "on payment of such sum of money to such officer, the suspected person, if in custody, shall be discharged and no further proceedings in respectof the offence shall be taken against such person" does not show that the Legislature intended to empower the specified officer under Section 54 to forfeit the seized property used by the suspected person in commission of offence against the Act. There is no replacement of the deleted words by any express provision. Section 54 substituted by Act 16 of 2003 does not speak of seized property at all - neither its return nor its forfeiture - while providing for composition of offence. The property seized under Section 50(1)(c) and Section 50(3A)has to be dealt with by the Magistrate according to law. This is made clear by Section 50(4) which provides that things seized shall be taken before a Magistrate to be dealt with according to law. Section 54 substituted by Act 16 of 2003 does not empower the specified officer to deal with the seized property.
We hold, as we must, that a specified officer empowered under Section 54(1) of the 1972 Act as substituted by Act 16 of 2003 to compound offences, has no power, competence or authority to order forfeiture of the seized items on composition of the offence by a person who is suspected to have committed offence against the Act. Our answer to the question framed at the outset is in the negative.The appeal is disposed of as indicated above with no order as to costs. (Provided by: UNODC SHERLOC)
A charge sheet dated 28-12-2014 was issued to the appellant. Certain charges were leveled against the appellant pertaining to his conduct. It is said that while performing duties in the control room on 17-01-2014, in an illegal manner, the appellant went from his duty place and was involved in illegal hunting of forest animal in violation to the M.P. Police Regulation. Similar allegations are made with regard to unauthorized absence from duty. Inter alia contending that the allegations did not constitute misconduct and therefore, departmental inquiry should be dropped. A representation was submitted and when no action was taken on the representation, the petition was filed.
The Court found that the charges are serious in nature and once the departmental inquiry has been set in motion, no interference or direction for deciding the representation can be made. The view taken by the learned Single Judge and the reasons given for refusing to interfere into the matter are reasonable in accordance to law and there is no reason to interfere into the matter. Once serious allegations are levelled against the employee with regard to his conduct while on duty and only a departmental inquiry in accordanceto the requirement of law is initiated, no direction for deciding the representation can be issued. The employeemay appear before the Inquiry Officer and it would be for the Inquiry Officer to consider all the objectionsand claim of the appellant and take a decision in accordance with law. This being the import of the order passed by the learned Single Judge, no case is made out for interference. Granting liberty to the appellant to raise all the objections as may be permissible before the Inquiry Officer, the same shall be considered by the Inquiry Officer while deciding the departmental inquiry. With the above liberty, this appeal stands disposed of. (Provided by: UNODC SHERLOC)