caselaws
Supreme Court of India
Regional Deputy Director vs Zavaray S. Poonawala & Ors on 26 March, 2015Author: ……………………J.
Bench: A.K. Sikri, Rohinton Fali Nariman
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7130 OF 2003
Regional Deputy Director Appellant(s)
VERSUS
Zavaray S. Poonawala & Ors. Respondent(s)
J U D G M E N T
A.K.SIKRI,J.
The first respondent herein wanted to import into India a
trophy of one stuffed leopard which he shot in Zambia. Leopard is a
protected and prohibited specie under Schedule I of the Wild Life
(Protection) Act, 1972 and also under the Convention of International Trade
on Endangered Species of Wild Fauna and Flora (CITES). Therefore, requisite
permission under the aforesaid provisions is needed to import such a
trophy. Respondent No.1 had, in fact, applied for such permissions, the
details whereof and the outcome thereof will be mentioned at a later stage,
at the relevant place.
2. To put it in nutshell here, the CITES had refused to grant the
permission. However, the High Court vide impugned judgment dated
28.04.2003 has come to the conclusion that the authorities which were
required to give the permission had accorded due permission to the
respondent no.1 and further that in such circumstances CITES had no locus
to entertain the application or to reject it. The writ petition is,
accordingly, allowed. Present appeal, via grant of special leave, arises
out of the aforesaid judgment.
3. Now, some facts in detail:
Respondent No.1 hunted certain animals in Zambia in June, 2000.
No doubt, this hunting was with due permission taken from the Government of
Zambia. Thereafter, he exported the hunted animals to Zimbabwe for
processing them into items of taxidermy hunting trophies. Respondent No. 1
claims that he had complied with the local laws prevailing in Zambia as
well as Zimbabwe for the aforesaid purposes. One of the items, with which
we are concerned, is the trophy of stuffed leopard. He wanted to bring this
trophy into India.
4. It is a matter of record that leopard is a protected and prohibited
specie under Schedule I of the Wildlife (Protection) Act, 1972 (hereinafter
referred to as the ‘Act’). It is also treated as an endangered specie at
international level. Therefore, for import of such a trophy into India,
various statutory or legal permissions are required to be taken.
5. Respondent No.1 for import of the aforesaid trophy of stuffed leopard
made his first application on 27.4.2002 to the Regional Deputy Director,
Wild Life Protection (WLP). This application was, however, rejected by the
Regional Dy. Director (WLP) vide communication dated 16.5.2002. It was
stated in this letter by the Dy. Director that as per condition no.5 of
letter issued by the Dy. Inspector General, Wild Life (W.L.) vide his
reference dated 9.10.2001 respondent no.1 was to obtain clearance and
certificate from Director General Foreign Trade (DGFT) and CITES, wherever
required and in the absence of any such permission no approval could be
granted by the Dy. Inspector General (W.L.).
6. On 23.7.2002, permission was granted by the Joint Director, DGFT.
Permission was granted in the form of a license. This license was, however,
issued subject to certain conditions stipulated therein. Condition no.4
thereof, with which we are concerned, reads as under:
“The applicant to obtain the clearance and certificate from DGFT and CITES
Authorities wherever required”
7. It would be pertinent to mention here that after the aforesaid
permission was granted by the Jt. Director, albeit conditional, CITES wrote
a letter dated 8.11.2002 raising a query as to under what circumstances
such a permission was granted. CITES had taken the position that it is
under obligation to regulate the export and import of species as set out in
Appendix I of the CITES.The Authority constituted under the CITES is
charged with the responsibility of granting approvals under CITES insofar
as imports in the Western Region are concerned. As per CITES, the species
which are set out in Appendix-I of the Convention, their import and export
is to be restricted inasmuch as the spirit of the prohibition against
import/export/trade of trophies of prohibited and protected animals is that
it is reprehensible to hunt and display endangered species which are fast
vanishing from the earth. Such animals and trophies should not be made
objects of aggrandizement and display in homes and commercial
establishments.
8. On CITES apprising the DGFT with the aforesaid position in law, DGFT
sprung into action and issued the show cause notice to respondent no.1
under Section 124 of the Customs Act, 1962 for confiscation of the
aforesaid trophy sought to be imported by it. The defence of respondent
no.1 was that it is the Chief Wildlife Warden under the Wild Life
(Protection) Act, 1972, who was competent authority to grant the permission
and respondent no.1 had the permission of the said authority granted to him
vide letter dated 11.4.2002.
9. After the aforesaid show cause notice was issued by the Custom
Authorities, respondent no.1 filed the writ petition in the High Court, as
mentioned above, under Art.226 of the Constitution challenging the validity
of CITES’ letter dated 8.11.2002 as well as show cause notice issued by
the Customs Authorities under Sec.124 of the Customs Act. In the writ
petition, interim orders were passed by the High Court directing Regional
Dy. Director CITES to treat the communication dated 8.11.2002 as the show
cause notice and pass order after hearing respondent no.1. Pursuant to this
direction the Dy. Director, CITES heard respondent no.1 and passed the
orders dated 17.1.2003, thereby rejecting the request of respondent no.1
and refusing the permission for clearance of the item in question.
Respondent no.1 amended the writ petition and included challenge to the
orders dated 17.1.2003 as well, passed by Dy. Director of CITES.
10. After hearing the matter finally, the High Court has allowed the writ
petition on two counts: in the first place it is observed that the
competent authorities to grant the permissions were DGFT and the Chief
Wildlife Warden and respondent no.1 had the requisite permissions from
these two authorities. Secondly, in the opinion of the High Court, CITES
had no role to play and did not have any locus to examine the issue of
permission. As per the High Court, the only role of the CITES is to see
that the imported item is not used for commercial purposes.
11. After hearing the counsel for the parties at length, we are of the
opinion that High court fell into error on both the counts. Insofar as
permissions of DGFT and Chief Wildlife Warden are concerned, we have
already noticed above that both these permissions were conditional. Apart
from many conditions imposed, the most material condition, which has been
ignored by the High Court, was that those permissions were subject to the
approval of the CITES and insofar as the CITES is concerned, it had not
given any permission. On the contrary it had first issued letter dated
1.11.2002 which was treated as the show cause notice and thereafter, it
passed the order dated 17.1.2003 specifically refusing the permission.
Thus, the conditions mentioned in the approval granted by the DGFT as well
as Chief Wildlife Warden, were not met by respondent no.1 and in the
absence thereof it cannot be treated that there were any proper or valid
approval/permission given by the DGFT or by the Chief Wildlife Warden which
could enable respondent no.1 to import the aforesaid item into this
country.
12. With this, we advert to the role and jurisdiction of CITES which it
has to play in such circumstances, we find that is all stated in the
convention which was signed at Washington DC on 3.3.1973 and amended at
Bonn on 22.6.1979. It is not in dispute that India became signatory of the
aforesaid international convention item in 1976.
13. Before embarking the exact nature of function and role to be played
by CITES, we deem it necessary to state the background and the objective
with which the Convention was signed at global level.
14. As a result of indiscriminate killing of the animals and birds by
human beings, either for its flesh or for trade or as a matter of hobby,
several species of animals/birds have virtually become extinct. To curb the
ecological imbalance caused by the ruthless killings of the animals and
birds various legislations have been enacted by several countries
worldwide, to protect the lives of the endangered species of animals and
birds and also curb the international trade in live animals/birds or their
products.
15. Saving wildlife is a core responsibility of mankind. Animal
populations are disappearing at an alarming rate. Saving endangered species
(plants and animals) from becoming extinct and protecting their wild places
is crucial for our health and the future of our children. Man has
produced a thousand and one inventions while observing nature. Think of
Leonardo da Vinci, who drew flying machines as he watched the flight of
bats. In the area of human health, animals and plants often show us the way
to stay in shape. As species are lost it impacts the possibility of future
discovery and advancement. The impacts of biodiversity loss include clearly
into fewer new medicines, greater vulnerability to natural disasters and
greater effects from global warming. In nature, everything is
interconnected. Unfortunately, we often have very little idea of all the
repercussions involved in the disappearance of a single animal population
in a corner of a forest, swamp or river. Unrecognized benefits of
maintaining biological diversity are those services we receive when
ecosystems function normally. These ecosystem functions include energy
fixation, chemical cycling (oxygen production by rainforests), soil
generation and maintenance, ground water recharge, water purification, and
flood protection. These services are provided to us at no cost. When we
destroy the ability of ecosystems to function naturally, we not only lose
these free services but all too often have to pay to replace them.
16. Protecting these species contributes to a thriving, healthy planet
for people’s health and well-being. Wildlife nurtures a sense of wonder. It
is integral to maintain the balance of nature. Ultimately, by protecting
these species, we save this beautiful, vulnerable and utterly irreplaceable
planet we call home. By protecting species, we also protect the essential
goods and services that make our lives possible and contribute enormously
to human health and well-being – breathable air, clean water, food, fibers,
building materials, medicines, energy, fertile soils, climate regulation,
transport, and recreational and spiritual values. We are on mission to find
solutions that save the marvelous array of life on our planet.
17. If a species goes extinct, it’s lost forever. Any aesthetic value it
once had is gone. As Theodore Roosevelt said, “When I hear of the
destruction of a species, I feel just as if all the works of some great
writer have perished.”
18. The leopard, Panthera pardus, is a member of the felidae family. This
secretive and elusive large cat was once distributed across eastern and
southern Asia and Africa. Now at the center of a severe man-animal conflict
because of expanding agricultural practices and development projects, its
habitat has depleted to mostly sub-Saharan Africa and fragmented
populations in Asia (Stuart, 2007). As one of South Africa’s “Big Five”,
the leopard forms a lucrative part of South Africa’s economy being a
favourite to both the tourist and hunting industries. The ecological
importance of this animal lies in its position at the top of the food chain
in most ecosystems. The shooting of wild game purely for sport and trophies
is no longer compatible with our commitment to preserve local fauna as a
national treasure.
19. The leopard, Panthera pardus, was listed in Appendix I in 1975, as
part an overall move to protect spotted cats from commercial trade in their
skins. Therefore, international trade in it or its products for primarily
commercial purposes was prohibited. However it has been recognized that
killing of specimens may be sanctioned by countries of export in defense of
life and property and to enhance the survival of the species. Furthermore,
this resolution also recognized that the leopard was not endangered in
several African countries. Equally, this resolution recognized the
overwhelming desire of Parties not to re-open a commercial market in
leopard skins. Thus, Resolution Conf. 4.13 struck a balance by establishing
a quota system that was subject to a review every two years at successive
Conferences to the Parties. Quotas were initially established from 7
African countries, totaling 460 specimens. Importers were allowed only one
skin per person per calendar year, and these were allowed only as personal
imports that could not be sold in the country of import. The leopard quota
system was reviewed through Resolution Conf. 5.13 and 6.9, when quotas were
raised or added, but the recommendations remained practically the same.
Resolution Conf. 7.7 allowed the system to continue without the usual
biannual review, but any increase in quota or any state not previously
having a quota required the consent of the Conference of the Parties.
Importers were allowed two skins per person per calendar year. Resolution
Conf. 8.10 (Rev.) was repealed by Resolution Conf. 10.14 which contains the
currently applicable recommendations. Eleven African range States are now
allowed export quotas per calendar year, totaling 2085 specimens. Each skin
must be tagged by the exporting country to show the country of origin, the
number of the specimen in relation to the annual quota and the calendar
year to which the quota applies, and the same information must be recorded
on the export document. Each exporting state must also submit an annual
report to the Secretariat detailing the number of trophies and skins
exported in the previous quota year.
20. Keeping in view the aforesaid spirit, CITES, as an International
Treaty, was made at Washington in the year 1973 with a view to regulate the
international trade in specimen of selected species subject to certain
control set out therein. The clear intention behind this international
Convention is that all the consenting countries come together and make
joint efforts to save the animal species from going extinct, inasmuch as
their survival is for the benefit of the mankind itself. The importance
and role to be played by the Authorities created under CITES is to be
highlighted in this context.
21. Preamble to this convention 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 ever-growing value of wild fauna and flora from aesthetic,
scientific, cultural, recreational and economic points of view;
Recognizing that people and States are and should be the best protectors of
their own wild fauna and flora;
Recognizing, in addition, that international co-operation 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;”
22. Article I clause (a) defines “species” in the following form:
(a) “Species” means any species, subspecies, or geographically separate
population thereof.
23. As per the clause (b) which defines “specimen” to mean, amongst
others, in case of an animal those which are included in appendices I and
II. CITES vision statement is conserve biodiversity and contribute to its
sustainable use by ensuring that no species of wild fauna or flora becomes
or remains subject to unsustainable exploitation through international
trade, thereby contributing to the significant reduction of the rate of
biodiversity loss. The Preamble to the Convention states that the objective
of CITES is to prevent the over-exploitation of species through
international trade and to ensure their long term survival. The ultimate
aim of the Convention is undoubtedly to promote species conservation.
However, legally the convention only has jurisdiction over the regulation
of international trade and cannot be held accountable for the effects of
other factors which affect species conservation, such as habitat
conversion.
24. Widespread information nowadays about the endangered status of many
prominent species like tiger make the need of convention obvious. With
hindsight, the need of CITES is clear. Annually international wildlife
trade is estimated to be worth billions of dollars and to include hundreds
of millions of plant and animal specimens. The trade is diverse, ranging
from live animals and plants to a vast array of wildlife products derived
from them, including food products, exotic leather goods, wooden musical
instruments, timber, tourist curios and medicines. Levels of exploitation
of some animal and plant species are high and the trade in them, together
with other factors, such as habitat loss, is capable of heavily depleting
their populations and even bringing some species close to extinction. Many
wildlife species in trade are not endangered, but the existence of an
agreement to ensure the sustainability of the trade is important in order
to safeguard these resources for the future.
25. Because the trade in wild animals and plants crosses borders between
countries, the effort to regulate it requires international cooperation to
safeguard certain species from over-exploitation. CITES was conceived in
the spirit of such cooperation.
26. In order to perform its task, namely, to regulate the animal species
mentioned in Appendix-I, scientific as well as Management Authority are
also contemplated in this convention which have to perform some designated
function as mentioned therein. Clauses (f) and (g) of Article I defines
these authorities as below:
“(f) “Scientific Authority” means a national scientific authority
designated in accordance with Article IX;
(g) “Management Authority” means a national management authority
designated in accordance with Article IX.”
27. Article II which deals with the fundamental principles, inter alia,
mentions that it shall include all species threatened with extinction
which are or may be effected by trade. It also stipulates that trade in
specimens of these species must be subject to particularly strict
regulation in order not to endanger further their survival and must be in
authorization in exceptional circumstances.
28. Next Article which is of relevance to this case is Article III (iii)
as it stipulates the role of Scientific as well as Management Authority.
In order to understand the importance of these authorities we reproduce
clause (iii) of Article III as under:
“The import of any specimen of species included in Appendix-I
shall require the prior grant and presentation of an import permit and
either an export permit or a re-export certificate etc. An import shall
only be granted when the following conditions have been met:
(a) a Scientific Authority of the State of import advised that the
import will be for the purposes which are not detrimental to survival of
the species involved;
(b) a Scientific authority of the State of import is satisfied that
the proposed recipient of a living specimen is suitably equipped to house
and care for it; and
(c) a Management Authority of the State of import is satisfied that
the specimen is not to be used for primarily commercial purposes.”
29. We may also point out at this stage that under Article IX, the
functions of Management and Scientific Authorities are mentioned.
30. What flows from the conjoint reading from the aforesaid provisions is
that before import of any specimen of species included in appendix I, prior
import permit of Scientific Authority and Management Authority is required
and before such a permit is given, the opinion of Scientific Authority as
well as the Management Authority on particular aspects is required.
Insofar as the Scientific Authority is concerned, it would look into the
matter from two angles, namely, that the import is not detrimental to the
survival of the species involved and further the proposed recipient is
suitably equipped of house and care for it. Insofar as the Management
Authority is concerned, it is to satisfy itself that the specimen is not to
be used for primary commercial purposes.
31. The High Court while observing that the only function of the
Management Authority was to ensure that `specimen’ is not to be used for
commercial purpose looked into the function of Management Authority alone.
Error is committed by glossing over the function of the Scientific
Authority. This resulted in passing the impugned directions which are
clearly erroneous. It is here where the High Court clearly erred. It is
stated at the cost of repetition that that matter is to be placed before
the Scientific Authority and it is this Authority which has to form an
opinion as to whether the import will or will not be detrimental to the
survival of the species involved. This becomes extremely important to
carry out the objects of the aforesaid conventions read with the
fundamental principles stipulated in Article II thereof.
32. The judgment of the High Court, therefore, is not sustainable. The
judgment of the High Court is set aside for the same reason. We also set
aside the order of 17.1.2003 passed by the CITES, Order dated 16.5.2002 as
well as show cause notice dated 27.11.2002 given by the Custom Authority
under Section 124 of the Customs Act.
33. We may recorded at this stage that after the High Court had
pronounced the judgment, respondent no.1 got the aforesaid item cleared
from the Customs and is in possession thereof as of now. In such
circumstances, we are of the opinion that appropriate course of action
would be to permit respondent no.1 to apply to the Scientific Authority for
necessary permission in the light of the observations made hereinabove.
Application for the said purpose shall be preferred within four weeks from
the date of receipt of the copy of this order. The Scientific Authority,
which we are informed has already been constituted, shall consider the
application and pass speaking order after giving opportunity of being heard
to respondent no.1. The order shall be passed by the Scientific Authority
within three months from the date the application is made by respondent
no.1. In case order passed is in favour of respondent no.1, he will be
allowed to keep the trophy with him. In case order passed goes against
respondent no.1, he shall surrender the trophy to the Custom Authorities.
Needless to mention, this would be subject to any rights which respondent
no.1 will have in law, to challenge the orders passed by the Scientific
Authority or CITES.
34. The appeal is disposed of in the aforesaid terms.
……………………J.
(A.K.SIKRI)
…………………….J.
(ROHINTON FALI NARIMAN)
New Delhi;
Date: 26.3.2015.
ITEM NO.103 COURT NO.15 SECTION III
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 7130/2003
REGIONAL DEPUTY DIRECTOR Appellant(s)
VERSUS
ZAVARAY S. POONAWALA & ORS. Respondent(s)
(with appln. (s) for permission to place addl. documents on record)
Date : 26/03/2015 This appeal was called on for hearing today.
CORAM :
HON’BLE MR. JUSTICE A.K. SIKRI
HON’BLE MR. JUSTICE ROHINTON FALI NARIMAN
For Appellant(s) Mr. P.S.Patwalia,ASG.
Mr. S.Wasim Qadri,Adv.
Ms. Meenakshi Grover,Adv.
Ms. Nidhi Diwan,Adv.
Mrs. Anil Katiyar,Adv.
For Respondent(s) Mr. Ajay S. Majithia,Adv.
Mr. Rahul Pandey,Adv.
Dr. Kailash Chand,Adv.
Mr. B. Krishna Prasad,Adv.
UPON hearing the counsel the Court made the following
O R D E R
The appeal is disposed of in terms of the signed order.
| (SUMAN WADHWA) | (SUMAN JAIN) |
|AR-cum-PS |COURT MASTER |
Signed order is placed on the file.
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