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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.

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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

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'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”

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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

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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

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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.

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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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.

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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

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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.

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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)          AR-cum-PS

        (SUMAN JAIN)          COURT MASTER

Signed order is placed on the file.