THE SENIOR INTELLIGENCE OFFICER DIRECTORATE OF REVENUE INTELLIGENCE v. SRI. KARTHIKPRABHU

referred to by their ranks before the trial Court.

#3. In support of the petition, the complainant has contended that application under Section 451 of Cr.P.C is not maintainable. The animals in question were seized from the possession of accused under the provisions of Customs Act, 1962 for violation of the said Act and for importing restricted items without obtaining requisite license from the Directorate General of Foreign Trade. According to Section 3 (3) of Foreign Trade (Development and Regulation) Act, 1992 r/w Section 2(23) of the Customs Act, 1962 import of - 4 - NC: 2025:KHC:28069 CRL.P No. 12460 of 2023 HC-KAR exortic species is a violation under the Customs Act. Consequently, the animals in question were liable for confiscation under Section 111 of Customs Act.

3.1 In connection with the violation of the above provisions, accused No.4 was arrested and produced before the trial Court along with remand application. However, he was released on bail. The seizure of the animals were made under the provisions of Customs Act, 1962 only. Section 110-A of Customs Act makes provisions for release of seized goods and in the light of the same, provisions of Section 451 Cr.P.C cannot be invoked.

3.2 The learned Sessions Judge has decided the application on the premise that the seized animals do not fall under the definition of 'Goods' under Section 2(22) of the Customs Act.

3.3 During the course of his statement recorded under Section 108 of Customs Act, accused has stated that - 5 - NC: 2025:KHC:28069 CRL.P No. 12460 of 2023 HC-KAR several of the animals are not under his ownership and are entrusted to him for safeguarding. Therefore, he is not entitled of interim custody of these animals. As admitted by the accused, these animals include those animals acquired from Silambarasan Muthuramalingam, while smuggling them at the airport. The animals seized from Silambarasan Muthuramalingam were brought into the Country contravention of Customs Baggage Rules, 2016.

3.4 In the light of the grounds urged, the Sessions Court erred in permitting accused No.4 to have the interim custody of the seized animals and it requires to be set aside and hence, the petition.

#4. In support of his arguments, learned Central Government Senior Panel Counsel and learned Senior counsel for petitioner has relied upon the following decisions: - 6 - NC: 2025:KHC:28069 CRL.P No. 12460 of 2023 HC-KAR (i) Directorate of Revenue Intelligence Vs. PRK Diamonds Pvt. Ltd and Anr.(PRK Diamonds)1 (ii) Directorate of Revenue Intelligence Vs. Ajay Babu Manda and connected matters (Ajay Babu Manda)2

#5. On the other hand learned counsel representing respondent No.1/accused No.4 has filed statement of objections to the following effect:

#6. In the petition, petitioner has not disclosed the following facts: "i. Their Mahazar report dated 25.01.2023 which is germane to the issues at hand; ii. That their own Mahazar report dated 25.01.2023, they have acknowledged that 14 species of the animals do not fall under CITES, but seized it all the same without any explanation at all; iii. Have not disclosed the Answering Respondent had shown PARIVESH Certificates in respect of 19 of the remaining 23 species, and 1 2019 SCC Online Del 8226 2 2023 LiveLaw (SC) 245 - 7 - NC: 2025:KHC:28069 CRL.P No. 12460 of 2023 HC-KAR further produced the Certificates before the Presiding Officer, Spl Court of Economic Offences; and the Sessions Court as well; iv. Have not disclosed that birds at Sl.No.2, 43 and 44 and animals at Sl.No.38 could not have PARIVESH Certificates as they were not mature enough for gender determination without which such a Certificate is not given; v. Have not disclosed that Laptops and Mobile of Accused 1, 2 and 3, which were seized and not brought before the Court, were released u/s 451 & 457 of the Cr.P.C; vi. Have not disclosed that as per their own statement, all the animals were healthy and fit, but as on this day most of them have perished; vii. Have not disclosed the petitioner deliberated disobeyed orders of Hon'ble Spl. Court of Economic Offences dated 11.01.2024,

18.01.2024, 31.01.2024, Arrest Warrants dated

28.02.2024,

27.03.2023, directions

15.04.2024,

06.05.2024,

10.06.2024, - 8 - NC: 2025:KHC:28069 CRL.P No. 12460 of 2023 HC-KAR

12.06.2024 on implementation of the orders dated 07.10.2023 passed by the Hon'ble LXIV Addl. City and Sessions Judge, Bangalore for extraneous reasons. viii. Have not disclosed that while seeking Orders dated 25.09.2024 & 24.10.2024 on I.A.No.1/2023 from this the Court, staying operation of the impugned orders, nothing much had remained to be complied as most of the animals had since died."

6.1 The Customs Act, 1962, DGFT, CITES do not apply to town and country seizure of exotic animals. Instead of proving that complainant is having jurisdiction, accused is being forced to appear under Section 110 of Customs Act, which is illegal. The complainant has also not disclosed that Ministry of Environment, Forest and Climate Change (Forest Conservation Division) had issued a new Circular FC-11/118/2021-FC dated 25.01.2024, by which glitches of PARIVESH-1.0 were sought to be debugged by migration to - 9 - NC: 2025:KHC:28069 CRL.P No. 12460 of 2023 HC-KAR PARIVESH-2.0, which is retrospective, as such short comings if any in the PARIVESH certificates produced by the accused were curable with new certificates under PARIVESH-2.0.

6.2 Instead of proving its jurisdiction under Chapter - IV r/w Section 110 of Customs Act, the complainant is questioning the plenary jurisdiction of the Courts under Section 397 of Cr.P.C and applicability of 491 and 497 Cr.P.C

6.3 The accused is a qualified Wild Life Enthusiast and owns Wildlife Firm PANGEA Flora and Fauna Consultancy LLP and Birds of Paradise Foundation (NGO) both of which are duly registered and accredited under the relevant Laws. While PANGEA is provided consultation to rescue centre, zoos and private farms and the Birds of Paradise Foundation involved in rescue and rehabilitation of pet and exotic animals and providing awareness towards - 10 - NC: 2025:KHC:28069 CRL.P No. 12460 of 2023 HC-KAR conservation and welfare and interaction amongst public at large and school children in particular.

6.4 Accused is very well known for its innate capacity for rescue and rehabilitation of sick animals, because of which he has been entrusted with sick animals of various kind by various people including Government Departments. Some of the testimonials are produced at Annexure-A (Colly) at page No.20 to 30.

6.5 The accused is very well trainer for people working in the field rescue and rehabilitation of sick animals, because of which he is invited to give lectures and training to wildlife workers and employees. Some of testimonials are produced at Annexure-B (Colly) at page No.31 to 52.

6.6 Accused has maintained animals at his house, which is raided by the complainant officers and in their over enthusiasm for accolades, seized the animals, issued press statement, maligned the accused as smuggler and - 11 - NC: 2025:KHC:28069 CRL.P No. 12460 of 2023 HC-KAR now have come before this Hon'ble Court to perpetuate the act which they ought not have done at the first instance, it being wholly illegal, beyond their jurisdiction and violative of settled principles of including committing contemptuous acts.

6.7 It is denied that the animals found at the residence of accused are prohibited under CITES, Foreign Trade Policy and provisions of Customs Act. They are regulated and not prohibited under CITES. Foreign Trade Policy and Chapter-IV of Customs Act is not applicable to the domestically bred and reared animals and more so, for town and country seizure of animals beyond the custom barrier. In fact in the mahazar dated 25.01.2023, drawn by the officers of the complainant, it is noted that the animals and birds at Sl.No.3, 8, 13, 16, 21, 23, 31, 34, 40, 41, 45 to 48 are non CITES animals but continued to seized the same without authority of law.

6.8 The mahazar indicate that the two species listed at Sl.No.2 and 20 and 26 are listed in Appendix-I of CITES. In - 12 - NC: 2025:KHC:28069 CRL.P No. 12460 of 2023 HC-KAR respect of the birds at Sl.No.2 PARIVESH certificates could not be availed as they were not matured enough for gender determination without which certificate is not given. Even though in respect of Sl.No.20 and 26, accused has secured PARIVESH certificate, the complainant officials seized them. They have failed to dispute the authenticity of documents produced by the accused before Special Court for Economic Offences and Sessions Court, Bengaluru. The statement showing current PARIVESH Registration status of seized animals is at Annexure-D (Colly) page Nos.58 to 76.

6.9 For the above reasons, the officials of complainant have over arched their mandate and invaded the privacy of accused who is a law abiding citizen and seized the animals beyond their jurisdiction. When requested to account for it, they have hidden behind a spacious technical argument that since the seizure is made under the Customs Act, the same cannot be questioned by Civil Courts.

6.10 The complainant officials are loosely using the word Foreign Origin even to those birds and animals who - 13 - NC: 2025:KHC:28069 CRL.P No. 12460 of 2023 HC-KAR have been bred within the country, but whose genes may not be native and therefore the said imputation is baseless and contrary to the records.

6.11 The mahazar witnesses lack basic knowledge about the animals, their genes, source of origin, their breeding habits and other related issues and went purely by their personal bias that the animals who are merely looking exotic is of foreign origin and the owner thereof should be put to rigour of producing proof of importation, even though they are of Indian origin. Despite producing the PARIVESH Registration in respect of animals in his possession and despite 14 species of seized animals are not listed under CITES and does not require any registration, the officers of the complainant continued to hold that all these are smuggled from foreign countries and liable under Section 111 (d), (i), (l) and (m) of Customs Act, 1962, even though the said provisions is not applicable to town and country seizures. - 14 - NC: 2025:KHC:28069 CRL.P No. 12460 of 2023 HC-KAR

6.12 The arrest and detention of accused is illegal and violative of article 21 of the constitution of India. The officers of the complainant have no authority to invade or trespass into the house of accused and seize domesticated exotic animal which all had all necessary documents.

6.13 The officers of the complainant have also seized various electronic gadget from co accused which were also not produced before Special Court but released under the provision of Cr.P.C. Such being the case, they cannot claim that for release of the exotic animal Section 110 r/w chapter IV of Customs Act is applicable. In any case, release of seized goods particularly live animals and perishable commodities should be done expeditiously to prevent depredation. The seized exotic animal fall under category called ectotheramic requiring rearing under controlled temperature and may require live food for survival. The Zoo authorities to whom they were given for safe custody do not have even basic knowledge of managing such sensitive animals. The offer of accused to - 15 - NC: 2025:KHC:28069 CRL.P No. 12460 of 2023 HC-KAR take care of these animal free of cost in the custody of Zoo authorities were rejected which resulted in death of most of animals. Hardly any of them are alive for release.

6.14 None of the seized animals were imported into the Country but were locally breed, rescued and abandoned animal taken in by the accused for relief and rehabilitation. The presumption of complainant officers that they are smuggled is wrong. When in the mahazar, the officers of the complainant have stated that the animals at Sl.Nos.3, 8, 13, 16, 21, 23, 31, 34, 40, 41, 45 to 48 are not listed in CITES, they ought not have seized them. So far as other animals are concerned PARIVESH certificate is available in respect of 19 and in respect of 3, no certificate could be collected as they are not mature enough to know their gender. It is settled principle that no DGFT license is involved in import of exotic animals.

6.15 The officers of complainant have exceeded their jurisdiction and over reached the mandate given to them and illegally invaded the privacy of accused and defamed - 16 - NC: 2025:KHC:28069 CRL.P No. 12460 of 2023 HC-KAR and maligned him in the media. He is illegally arrested and thereby violating his basic human rights. They have also destroyed his professional and social life beyond repair.

6.16 The animals seized from the residence of accused are not one seized from accused Nos.1 to 3 at the Airport and it is not supported by any documentary evidence. It is the subject matter of trial and cannot be used to hold onto highly sensitive animals whose upkeep and care they have miserably failed resulting in death of many and debilitated condition of the rest.

6.17 Taking into consideration all these aspects, the Sessions Court has rightly allowed the application filed by accused for interim custody of seized animals and birds. No grounds are made out to set aside the same and pray to reject the petition.

#7. In support of his arguments, learned counsel for accused has relied upon the following decisions: - 17 - NC: 2025:KHC:28069 CRL.P No. 12460 of 2023 HC-KAR (i) (ii) (iii) (iv) (v) (vi) Swetab Kumar Vs. Ministry of Environment, Forest and Climate Change and Ors.(Swetab Kumar)3 Amit Kapoor Vs. Ramesh Chander and Anr.(Amit Kapoor)4 Sukanta Mallick Vs. Union of India and Ors.(Sukanta Mallick)5 Anil Naidu S/o Chandrakant Naidu, Indore Vs. Union of India, through The Commissioner of Customs, Nagpur and Ors.(Anil Naidu)6 Rajesh Agarwal Raju Sagar Vs. Commissioner, Cunstoms, Indore(Rajesh Agarwal)7 Khodiya Animal Welfare Trust & Anr. Vs. Ministruy of Environment Forest(Khodiya Animal Welfare Trust)8 (vii) Vishal Khatwani and State of Karnataka (Vishal Khatwani)9

#8. Heard arguments and perused the record.

#9. Thus, alleging that on 22.01.2023 at 3.55 p.m, 3 passengers traveling from Bangkok, Thailand to Bengaluru viz Flight 6E76, trying to smuggle live exotic animals into India and they were intercepted by the Officers of Revenue 3 2023 LiveLaw (SC) 245 4 (2012) 9 SCC 460 5 (2023) 12 CAL CK 0058 6 Crl(WP)No.807/2019 7 Customs Appeal No.50170/2021 8 AIR ONLINE 2020 DEL 1623 9 2024 LiveLaw (Kar) 436 - 18 - NC: 2025:KHC:28069 CRL.P No. 12460 of 2023 HC-KAR Intelligence and in that connection specific intelligence was developed and on 25.01.2023, a raid was conducted on the premises of respondent and seized a number of exotic species of birds and animals which are said to have been prohibited under CITES, Foreign Trade Policy r/w Customs Act, 1964. However, respondent No.1/accused No.4 dispute that the authorities of Revenue Intelligence are having jurisdiction to conduct the raid and seize the exotic species of birds and animals and as such they have exceeded their jurisdiction. Therefore, it would be necessary to examine whether the officers of the Revenue Intelligence were having jurisdiction over the subject matter of the raid.

#10. As rightly observed by the Sessions Court, Section 2(22) of Customs Act, 1964 defines the term 'Goods' as including (a) vessels, aircrafts and vehicles; (b) stores; (c) baggage; (d) currency and negotiable instruments; and (e) any other kind of movable property. - 19 - NC: 2025:KHC:28069 CRL.P No. 12460 of 2023 HC-KAR

#11. Section 11-B deals with power of the Central Government to notify goods and Section 11-A(a) defines the term 'illegal import' means the import of any goods in contravention of the provisions of this Act or any other law for the time being in force. Admittedly, the species of exotic birds and animals in question are not notified by the Central Government to bring it under the purview of customs Act. 1964.

#12. Section 110-A of the Customs Act, 1964 makes provision for provisional release of goods, documents and things seized pending adjudication and state that it is the adjudicating authority which is having powers to order for release of the goods, documents or things seized under Section 110 to the owner by taking necessary bond in the proper form with such security and conditions as the adjudicating authority may require. - 20 - NC: 2025:KHC:28069 CRL.P No. 12460 of 2023 HC-KAR

#13. Section 110 deals with powers of the proper officer for seizure of the goods, documents and things. As noted earlier, as per the definition of 'Goods', the exotic species of birds and animals do not fall under the definition of 'Goods' and therefore, the custom officials have no power to seize the same, especially when they are not seized at the point of entry or exit. In fact Chapter V-B of the Wildlife Protection Act, 1972 was introduced w.e.f

01.04.2023, as per the convention on international trade in endangered species of wild fauna and flora, which deals with the import and export of exotic species of birds and animals.

#14. Section 49-E empowers the Central Government to designate Management Authority for discharging the functions and exercising the powers under the said Act. As per sub-section (2), the Management Authority shall be responsible for issuance of permit and certificates for trade of Scheduled specimens in accordance with the convention, submission of reports and shall perform such other - 21 - NC: 2025:KHC:28069 CRL.P No. 12460 of 2023 HC-KAR functions as may be necessary to implement the provisions of the convention. This Chapter also makes provisions of designation of Scientific Authority and other related work.

#15. Chapter VI deals with prevention and detection of offences. Section 50 deals with power of entry, search, arrest and detention. These provisions are applicable to those species of birds and animals which are listed in Schedule-1. Chapter V-B also deals with breeding of living schedule animal species, application for license by breeders of Appendix-1 species. As per the mahazar drawn by the petitioner officials, the exotic species of birds and animals which are seized do not find place in Appendix-1. Accused has also produced PARIVESH certificates secured by him with regard to the birds and animals in his possession.

#16. In fact in Swetab Kumar, referred to supra the Hon'ble Supreme Court held that individuals who have made a declaration of ownership of exotic live species in accordance with the advisory issued by the Ministry of - 22 - NC: 2025:KHC:28069 CRL.P No. 12460 of 2023 HC-KAR Environment, Forest and Climate Change are immune from prosecution, since it has been held that advisory was an amnesty scheme and the declarants are immune from prosecution, which means that immune from prosecution or action under any future laws and amendments incorporated in the Wildlife (Protection) Act, 1972.

#17. In fact in Sukanta Mallick, Anil Naidu, Rajesh Agarwal and Khodiya Animal Welfare Trust, referred to supra, it is held that the customs authorities have no jurisdiction over the exotic species of birds and animals. According to respondent No.1/accused No.4 the seized birds and animals are not imported, but many of them are breed in captivity and some of them were rescued by him at the request of general public, Zoo authorities and Forest officials. In fact the petitioner officials are not in a position to point out that any of the seized birds and animals are imported. - 23 - NC: 2025:KHC:28069 CRL.P No. 12460 of 2023 HC-KAR

#18. For these reasons, this Court is of the considered opinion that the Sessions Court has rightly held the petitioner authorities have exceeded jurisdiction. In fact it is brought to the notice of the Court that majority of seized birds and animals have died for not getting proper care and despite the same, the petitioner authorities have failed to hand over them to accused No4. The material placed on record clearly indicate that the petitioner authorities are not equipped to take care of the seized birds and animals. Consequently, the petitioner authorities have failed to demonstrate that the order passed by the Sessions Court is liable to be set aside.

#19. In the result petition fails and accordingly the following: ORDER (i) Petition petitioner/complainant under Section 482 Cr.P.C is hereby rejected. - 24 - NC: 2025:KHC:28069 CRL.P No. 12460 of 2023 HC-KAR (ii) The Registry is directed to send a copy of this order to the trial court through e-mail. Sd/- (J.M.KHAZI) JUDGE RR List No.: 1 Sl No.: 48