With a complete ban on wildlife trade of Indian species, there has been a surge in demand in India, for exotic species from different parts of the world, noted the Smuggling in India Report 2019-2020, published by the Directorate of Revenue Intelligence. “Since there is a complete ban on trade in Indian species, the interest of the smugglers has shifted to exotic species, which has led to disastrous global consequences,” it said, adding that most of these species land up as exotic pets.

Smugglers are trying to stay one step ahead of enforcement agencies, by pulling out new tricks from the bag. Recent trends suggest that they might be trying to take advantage of the Voluntary Disclosure Scheme issued last year, by the Ministry of Environment, Forest and Climate Change, which aimed to regulate the growing market of exotic animals in the country.

The Voluntary Disclosure Scheme, issued in June 2020, was an amnesty scheme under which Indians could declare possession of any exotic live species. The declarer would not be required to provide any documentation pertaining to the exotic species if the same is declared within six months of the date of the issue of the advisory, a period which was later extended to March 15. More than 30,000 Indians applied for the amnesty scheme up to March, as per a report published by IndiaSpend.

While the purpose of this amnesty was to streamline the process of import and develop an inventory of exotic species listed under the Convention of International Trade in Endangered Species, wildlife smugglers might have started using it to their advantage as well, as has been seen in the Lailapur incident last year, where one of the largest consignment of exotic animals were caught in the North East region.

Navnath Tukaram Dhaigude, hailing from Satara district in Maharashtra, who was one of the drivers of the vehicle from which the consignment was seized, filed a criminal petition at the Gauhati High Court this year, seeking custody of the seized animals under the Voluntary Disclosure Scheme. He contended that the petitioner being the declarer, need not produce any documentation and initiating criminal proceedings against the petitioner would be against the purpose of the amnesty scheme.

Lailapur case

On July 28, 2020, at around midnight, while regular patrolling was going on, a vehicle on the NH-54 highway near Lailapur (a hamlet in the Cachar district adjoining the Assam-Mizoram border), was stopped. As an unpleasant stench was coming from the packed cartons inside the vehicle, the patrolling team decided to check all the cartons. What emerged from inside was totally unexpected – one red kangaroo, three Aldabra tortoises, six blue macaws and two capuchin monkeys, none of which are found in India.

Capuchin monkeys can be found in Central and South America. Two capuchin monkeys were seized in Lailapur. Photo credit: David M Jensen/ Wikimedia Commons

Dhaigude and his accomplice Narsimha Reddy from Telangana, were arrested when they failed to provide any valid permit for transportation of these animals. The animals were sent to Assam State Zoo’s Botanical Garden because of the lack of any rehabilitation centres in Cachar. On further investigation, one tiger claw, two Indian soft-shelled turtles and one red-eared slider turtle were recovered from the vehicle.

Sunny Chaudhary, who was the Divisional Forest Officer, Cachar, at that time, told Mongabay-India, “In his statement, the accused said that he was transporting onions from Siliguri to Aizawl where these cartons were handed over to him by a person named Lala who asked him to make the delivery at Guwahati against a payment of Rs 15,000.”

“He had said that he had no idea what these cartons contained,” Chaudhary said. “Now, in his petition, he is claiming to be the owner of these animals. Dhaigude is a serial offender and he has been arrested in Kolkata earlier for smuggling wild animals. So, we had every reason to believe that handing over custody of these animal/ animal articles to the person accused of having committed the offence, will result in the said illegal article being released into the market and/ or otherwise disposed of.”

The forest department countered the petition saying that the accused Dhaigude, is involved in the illegal smuggling of animals/animal articles into India, from across the border and the custody of the said animals are being sought by him to legalise the same by taking undue advantage of the advisory issued by the ministry.

Agni Mitra, Regional Deputy Director of Wildlife Crime Control Bureau, eastern region, whose office is the Convention of International Trade in Endangered Species Management Authority in eastern India, helped the Assam forest department in filing the response to the petition. Mitra told Mongabay-India that Dhaigude cannot take refuge behind the amnesty scheme because, “In this particular case, the accused was not arrested for possession of exotic animals. He was booked for smuggling.”

Stating that in most of the cases regarding exotic animals, enforcement agencies fail to nab the accused, he said, “Most of these consignments carrying exotic species are intercepted in border areas that fall under the jurisdiction of Border Security Force. BSF has to operate in a very open field kind of scenario, where often the accused manages to flee and they are only able to recover the packages.”

Question of identity

In the Lailapur case, initially, the forest department misidentified some of the animals and the case was filed under Wildlife Protection Act, 1972. As exotic animals do not come under wildlife protection, the accused was able to get bail last year.

In the bail order, the Gauhati High Court observed, “As seized animals do not come under the purview of the Wildlife Protection Act, the detention of the petitioners would not be permissible under it and since the only case registered against the petitioners is under the Wildlife Protection Act, the court is of the view that the petitioners will be entitled to go on bail vis a vis, the aforesaid case under the Act unless wanted in connection with any other case.”

Six blue macaws were seized in Lailapur. The hyacinth macaw is found in central and eastern South America. Photo credit: Hank Gillette/ Wikimedia Commons

As the rescued animals were exotic and came under the category of Convention of International Trade in Endangered Species, the case was handed over to the customs department. The petitioner filed an application before customs officials for provisional release of the seized animals in March this year, and two months later, the customs authorities granted the provisional release of the seized animals on condition that the petitioner will execute a bond for 100% value of those animals and make a 25% cash deposit of the value of the animals.

Even though the petitioner complied with the condition and approached the Range Forest Officer, Dholai for the release of the animals in terms of the above order, the same was refused. Dhaigude then filed a criminal petition seeking the release of the animals challenging that the forest department does not have any jurisdiction or authority to deal with exotic animals or birds, which do not come under the purview of the Wildlife Protection Act. He filed another criminal petition on similar grounds contending that since exotic animals do not come under the Wildlife Protection Act, the charges under the Act against the petitioner are also not sustainable.

“The Customs Department asked the forest department to let go of the wild animals which we had seized,” Chaudhary said. “Our High Court overruled that order. The problem occurred when two agencies – the Customs and the Forest Department acted as per their own law which overlapped each other.”

“Regarding the identification of animals, we were seeing many of these animals for the first time,” Chaudhary said. “We could identify a kangaroo but we were not so sure about the others. We also had a limited amount of time, because we had to place them before the Chief Judicial Magistrate within twenty four hours. When you are saying these are exotic species, it needs to be proven genetically. We finally identified the species by referring to the Zoological Survey of India.”

Dismissing the petitions, the Court observed in its judgement in October this year that provisional release of the seized article by the Customs Department, which was never produced before them, to a person whose ownership has not yet proved, have raised legal complications. The court also said that as the petitioner did not approach the court by disclosing all the facts, as such this court is not inclined to allow the petitions filed by the petitioner.

Mitra says in his five years plus tenure in the Wildlife Crime Control Bureau, this is the first time he has come across a case where a person has asked for custody of seized exotic animals.

“The consignment was worth crores of rupees,” he said. “The person who paid for the consignment thought he would try to get custody of the animals by hiring a good advocate. As he could not come in front himself, he filed the petition in the name of Dhaigude. It was a gamble basically, which did not pay off.”

Lacunae in advisory

It is difficult to get a conviction in most cases with exotic animals because these are not covered under Wildlife Protection Act. Commenting on this case, Saket Badola, Head of Wildlife Monitoring Network Traffic-India said, “It is difficult to get a person convicted for trading in the Convention of International Trade in Endangered Species animals inside the country, as the traders come up with several excuses because exotic animals are not listed under our Wildlife Protection Act.”

“This is why Convention of International Trade in Endangered Species needs to be harmonised with Wildlife Protection Act,” Badola said. “But for cases like these, where the consignment was found near international borders, it should not be an issue. On the borders, entry and exit of wild animals are covered under Customs Act and directions of Directorate General of Foreign Trade.”

Mitra concluded, “There are lacunae in the advisory because there are no penal provisions in case a violation is detected. However, the ministry has proposed an amendment seeking comment on the Wildlife Protection Act and they are trying to bring all the violations of the Convention of International Trade in Endangered Species species under the Wildlife Act.”

This article first appeared on Mongabay.