SHYAM SUNDER SHARMA Vs. STATE

JUDGEMENT

(1.) Petitioner No. 3 was trading in ivory articles made of ivory imported into India at a time when it was a free trade. In 1986, the trade in ivory imported into India was brought under the provisions of the Wild Life (Protection) Act, 1972 (in short referred to as "the Act") and in accordance with. the provisions of Section 44 of the Act, no person could carry on or commence business in articles made of ivory imported into India unless a licence in accordance with the provisions of the said Section was obtained by him. Petitioners 1 and 2 are the partners of petitioner No. 3 and a license is staled to have been obtained the petitioners from the Chief Wild Life Warden, Department of Environment, Forest and Wild Life, Delhi. Regular returns were required to be filed in accordance with the provisions of the Act. In 1991, the Government decided to ban the trade in imported ivory as well and, accordingly, the Parliament passed the Wild Life (Protection) Amendment Bill, 1991 which received the assent of the President of India on 20th September, 1991 and is known as the Wild Life (Protection) Amendment Act, 1991. In accordance of the proviaions of Section 49B of the said Act, subject to other provisions of that section, on or after the specified date', no person could commence or carry on business as a dealer in ivory imported into India. The 'specified date' in accordance with Section 49A of the Act in relation to ivory imported in India or articles made therefrom, was the date of expiry of six months from the commencement of the Wild Life (Protection) Amendment Act, 1991.

(2.) With a view to bring into force the various provisions of the Act, the Central Govemment issued a notification dated 27th September, 1991, published in the Gazette of India dated 30th September, 1991, appointing the second day of October, 1991 as the date on which all the provisions of the said Act, accept Sections 33A, 44(ii)(o), 55C, Chapter IIIA and Chapter VA as the date on which the Amendment Act would come into force. Section 49B prohibiting the trader to carry on business as a dealer in ivory imported into India was contained in Chapter VA and by a notification dated 27th September, 1991 this chapter did not come into force. It appears that exception of the said Section in the notification was only byway of printing mistake and the Government, therefore, issued another notification on 1st January, 1992 published in the Gazette of India dated 7th January, 1992 amending the earlier notification so as to read accept Sections 13,22,26 30(ii) and 39 insofar as its provisions relate to Clause C of new Section 55 substituted in Wild Life (Protection) Amendment Act, 1972 (53) 1972" in place of the words "except Sections 33A, 44(ii)(o), 55C, Chapter IIIA and Chapter VA". The effect of the issue of carrigend us notification on 1st January, 1992 was that no person could carryon trade as a dealer in ivory imported into India or articles made therefrom.

(3.) After the Govemment had started implementing various provisions of the Act, the Assodation of traders who were dealing in ivory and ivory articles i.e. M/s. Ivory Traders and Manufacturers Association, filed a writ petition in this Court. A Division Bench of this Court after hearing the parties,passed the following order on 26th March, 1992 :