Wild Life (Protection) Act| Declarants Of Exotic Live Species Immune From Prosecution Under Future Laws & Amendments- SC

The Supreme Court has held that the declarants of exotic live species of animals and birds in India are immune from prosecution under any future laws and amendments incorporated in the Wild Life (Protection) Act, 1972.

The Court has recently clarified that declaration of the ownership of such species with regard to the advisory issued by the Ministry of Environment, Forest and Climate Change via notification in the year 2020 is immune from action under the aforesaid Act.

The two-Judge Bench of Justice Krishna Murari and Justice Sanjay Karol said, “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. … 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.”

The Bench asserted that the order passed by the Apex Court calls for no modification or clarification as sought by the petitioner.

Senior Advocate Santosh Paul and Advocate Vedant Singh appeared for the petitioner whereas no one appeared for the respondents.

In this case, a plea was filed by the petitioner seeking clarification of the Apex Court’s order dated August 8, 2022, to the effect that the mere filing of a declaration under the notification does not preclude the Competent Authority from taking steps under Chapter VB of the Wild Life (Protection) Act,1972 by means of the 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.

Before the amendment act was enforced, the Ministry of Environment, Forests and Climate Change issued a notification in the year 2020 which was in the form of an Advisory dealing with the 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 and the Advisory came to be upheld by all the High Courts.

The Supreme Court in the above context noted, “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.”

The Court considered the legal position that an Amendment Act cannot post facto criminalize the possession.

“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”, said the Court.

The Court further observed that 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.

“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 the citizens at large for a further reasonable period by putting them to notice of the consequences of failure to make such registration/declaration”, asserted the Court.

The Court said that the 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 Court hence said that the respondent authorities while framing the Rules should take into consideration the same.

“… 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 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”, concluded the Court.

Accordingly, the Court dismissed the plea.

Cause Title- Swetab Kumar v. Ministry of Environment, Forest and Climate Change and Ors.

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