Decided on September 03,2007

UNION OF INDIA Respondents


MUKUL MUDGAL, J. - (1.) This writ petition challenges the criminal proceedings initiated by the officers of the Customs under the provisions of the Customs Act, 1962 and by the officers of the Wildlife Department under the provisions of Wildlife Protection Act, 1972 (hereinafter referred to as the Act) and seizure of 12 pieces of shawls, suspected to be made of 'Shahtoosh wool'. The main question raised in this petition is whether the phrase 'animal article' excludes 'animal hair'. The petitioner No.1 Cottage Industries Exposition Ltd., is an incorporated company under the provisions of the Companies Act, 1956, which trades in value added handicrafts, carpets and other items in natural and artificial fiber. The petitioner No.2 Mr. Rajender Kumar Mehta is in charge of the exports of the petitioner no.1. The respondent No.1 is Union of India through the Secretary to the Government, Ministry of Environment and Forest. The respondent No.2 is the Collector of Customs, Indira Gandhi International Airport. The respondent No.3 is the State of Jammu and Kashmir through its Chief Secretary. The respondent No.4 is the Government of National Capital Territory of Delhi. The respondent No.5 is the Director, Wildlife Preservations, Ministry of Environment and Forest.
(2.) The brief facts of this case as per the case set up by the petitioner through his Senior counsel Shri Sanjay Parikh as under: (a) On 6th April 1996, 16th April 1996 and 12th May 1996, M/s Istihaq and Co. supplied various types of shawls to the petitioner company. The supplies included shawls which have been seized by the respondent. (b) 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. (c) 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 said shawls. (d) 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: (i) 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. (ii) According to the Customs Authorities, Wildlife officials were also called as trading in shahtoosh wool is strictly prohibited as it falls in Schedule I of the Wildlife (Protection) Act. (iii) The export of shahtoosh shawls is prohibited as it falls under the 'Negative List' of the export of Exim Policy 1992-97. (iv) The shawls and the remaining export material were detained and seized pending an enquiry 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 and at present are in the custody of the respondents.
(3.) The learned counsel for the petitioner no.1 submitted as follows: (a) The Wildlife (Protection) Act prohibits dealing with 'Animal Article' or 'Trophy' which are defined as under: "Section 2 (2) Animal Article " Animal Article means an article made from any captive animal or wild animal, other than vermin, and includes an article or object in which the whole or any part of such animal (has been used and ivory imported into India and an article made therefrom). Section 2(31) " Trophy Trophy means the whole or any part of any captive animal or wild animal, other than vermin, which has been kept or preserved by any means, whether artificial or natural, and includes, (a) rugs, skins, and specimens of such Animals mounted in whole or in part through a process of taxidermy, and (b) antler, bone carapace, shell, horn, rhinoceros, horn, hair, feather, nail, tooth, musk, eggs, nests and honeycomb." 'Animal Article' does not refer to 'hair' though it makes a specific reference to ivory, whereas 'Trophy' specifically uses the word 'hair' in its original form. (b) 'Animal Article' requires making and therefore, involves human skill. In the State of Tamilnadu v. M/s Kay Pee Industrial Chemical Pvt. Ltd., AIR 2005 Mad 304, it was held as under: "29. It may be noted that the expression "animal article" in Section 2 (2) of the Act means "an article made from any captive animal or wild animal". In our opinion, the word 'made' used in the definition denotes the process involving human effort." Thus, it is different from a 'trophy' where animal or part of an animal is kept or preserved by natural or artificial means. (c) Under the Wildlife (Protection) Act, items made from ivory are banned which is specifically included in the definition of the 'animal article' and in the definition of 'trophy' where the word bone is mentioned. The meaning of the word Ivory as defined in Shorter Oxford Dictionary is : "(a) The hard, white, elastic and fine grain substance (being dentine of exceptional hardness) composing the main part of the tusks of the elephant, mammoth (fossil)... (b) A substance resembling ivory or made in imitation of it. In Collins English Dictionary 'ivory' has been defined as: (a) A hard smooth us a major part of the tusks of elephants, walruses and similar animals. (b) A tusk made of ivory. (c) a yellowish white colour; cream (d) A substance resembling elephant tusk." 'Ivory' therefore, as per the Dictionary meaning is not confined to elephant ivory. Thus, an item needs to be mentioned separately in both the definitions of the "animal article" and the "trophy" for it to be treated as either. Therefore, a tusk in natural form preserved as such would be a trophy while items made from the tusk by human endeavour would be an 'animal article'. 'Hair' could have been treated in the same way as 'ivory' if the legislature intended for the shahtoosh shawls to come within the meaning of the 'animal article' therefore, 'hair' preserved in its natural form or through artificial means could have been called a 'trophy'. However, once woven into a shawl it ceases to be preserved or kept in its natural form it does not find a specific mention in the definition of 'animal article'. (d) Therefore, 'hair' is not clearly a part of the definition of 'animal article' for the following reasons: (i) Since the word 'hair' has specifically been included within the definition of the 'trophy' there would have been no need for the legislature to include it specifically if it was a part of an animal. (ii) If the legislative intent was only to clarify that 'hair' was part of an animal it would have manifested in the definition of 'animal' and 'part of the animal' in both the definitions of 'animal article' under Section 2 (2) of the Wildlife (Protection) Act and the definition of 'trophy' under Section 2 (31) of the Wildlife (Protection) Act. (iii) Where the word 'mean' is employed it implies a restriction. In Feroz N. Dotivala v. PM Wadhwani (2003) 1 SCC 433, the following position of law was laid down by the Hon'ble Supreme Court: "13. It can also restrict the meaning of a word by defining it in that manner. Generally, when the definition of a word beings with "means" it is indicative of the fact that the meaning of the word has been restricted; that is to say, it would not mean anything else but what has been indicated in the definition itself. There can also be extensive definitions when the definition starts with "includes". 14. Generally, ordinary meaning is to be assigned to any word or phrase used or defined in a statute. Therefore, unless there is any vagueness or ambiguity, no occasion will arise to interpret the term in a manner which may add something to the meaning of the word which ordinarily does not so mean by the definition itself, more particularly, where it is a restrictive definition." Therefore, the meaning of animal article and trophy are restricted to animal or part of animal. However, the meaning as restricted in both definitions is widened to 'include' certain items with reference to 'trophy'. Thus it has been widened to include items which without the inclusive clause could not have been covered. Thus, hair is not within the meaning of animal or part of animal and the meaning of trophy has been widened to 'include' hair and the definition of animal. (iv) The word 'include' has been defined in Stroud's Judicial Dictionary, 5th Edition, Vol 3 page 1263 as follows: "Include is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used, these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import but also those things which the interpretation clause declares that they shall include." The said definition supports the plea that the legislature had a specific intention in creating two separate entries, in the form of animal article under Section 2(2) of the Wildlife (Protection) Act and the trophy under Section 2(31) of the Wildlife (Protection) Act. In N.D.P. Namboodripal v. UOI and ors., (2007) 4 SCC 502, it was held as under: "Where a word defined is declared to "include" such and such, the definition is prima facie extensive, but the word or expression, may also be construed as equivalent to "mean and include" in which event, it will afford an exhaustive explanation of the meaning which for the purposes of the Act must invariably be attached to the word or expression. It is, therefore, evident that the word "includes" can be used interpretation clauses either generally in order to enlarge the meaning of any word or phrase occurring in the body of a statute, or in the normal standard sense, to a mean "compromise of" or "consists of" or means and includes depending on the context.";

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.