Sukumar Mukhopadhyay: Is horse a pet animal?

Can one ever think that such a simple issue as — horse is a pet animal or not — could ever go to the High Court and the Supreme Court? But that is what exactly happened. And I am not doing only story telling here but shall also tell the readers how some complicated legal issues of interpretation in fiscal statutes got settled by this horse case.

The issue arose because a race horse owner imported a race horse for breeding without licence claiming that the horse could be imported under the Baggage Rules as a pet animal. Pet animal is allowed as baggage. The importer, Shaik Md. Omer, described himself as an industrialist who was interested in breeding and maintenance of pedigree horses. He owned several horses which were treated and kept as his pet animals and that he also owned race horses and since 1950 he started breeding horses out of mares owned by him. When he claimed it as unaccompanied baggage, the Customs observed, “It is not a case of unaccompanied baggage. The importation cannot be treated as of a pet animal. The party may file Bill of Entry in Group for clearance. “When the bill of entry was filed, it was again pointed out by Customs that the horse cannot be treated as pet animal. In the adjudication, the Collector of Customs held that what was allowed was only personal pet animals such as own cat or dog but not a race horse which was not his own pet but was just a race horse not even seen by him before. In the adjudication  order it was made

            clear that the importation was as a result of a business dealing and it was not the case of the importation of a 'pet animal' by a passenger which would be covered by the exemption granted by the Baggage Rules.

The importer went to the High Court and argued there that pet animals are tamed animals just like cat , dog , cow. Horse was also a pet animal. So if dog could be treated as pet for baggage, Customs cannot disallow horse also. The Calcutta Customs did not agree with the logic of the importer on the ground that what was allowed in the Baggage Rules was own clothes, own household equipments etc . In that context what  was allowed was only own pet. If somebody has a personal dog, that is, his own pet dog, it could be called his pet animal but not one  new dog bought from the market which is not his pet.

 The Calcutta High Court agreed with Customs and observed the following in its judgment :

“There is no such species of animal known as ‘pet animal’. What happens is that certain kind of animals or birds are often domesticated and when a particular person becomes fond of such an animal or bird it may be said to have become a ‘pet’ of that person and may be called a ‘pet animal’. It is a subjective expression. In the present case the mare ‘Jury Maid’ was not the ‘pet’ of any particular person. So far as the appellant is concerned, he had not even seen the mare when it arrived in India. .... In actual life we find that men have at times become fond of strange animals like lions, tigers and even crocodiles. It was not intended to make the baggage rules a warrant for transforming passengers’ ships into a Noah’s Ark ...”

      The importer went to appeal in the division Bench of the High Court and the judgment has been reported in 2000 (126)ELT507(Cal) Shaik Omer vs Collector of Customs. The Court considered the argument of the importer that horses are kept as pets and, therefore, they come within the scope of the expression “pet animals”. The Court observed, "This argument has been rejected by the court below and we do not think that it is a valid contention. As will appear from the facts set out above, the importation of the mare was purely a business proposition. 'Pet animals' in clause 4 means an animal usually kept as a pet, like dogs, cats and even horses. But in order to qualify, not only should the animal belong to such a class, but must be the pet of a particular person." The Appellate Bench of the High Court also upheld the absolute confiscation of the horse by the Collector of Customs on the ground that prohibited goods are which have allowed import with a condition. Once the condition is not satisfied, the goods become prohibited. This legal issue was supported by the Supreme Court as we shall see below.

The Supreme Court in its judgment - 1983 (13) E.L.T. 1439 (S.C.) = AIR 1971 SC 293 ,entirely agreed with this observation of the High Court and rejected the contention of the appellant that Jury Maid was a “pet animal”. The Supreme Court also agreed with the High Court in regard to its interpretation of the expression of prohibition. It observed the following,

"It was urged on behalf of the appellant that expression “prohibition” in Section 111(d) must be considered as a total prohibition and that expression does not bring within its fold the restrictions imposed by Clause 3 of the Imports Control Order, 1955. According to him restrictions cannot be considered as prohibition more particularly under the Imports and Exports (Control) Act, 1947 as that statute deals with “restrictions or otherwise controlling” separately from prohibitions. We are not impressed with this argument. What clause (d) of Section 111 says is that any goods which are imported or attempted to be imported contrary to “any prohibition imposed by any law for the time being in force in this country” is liable to be confiscated. “Any prohibition” referred to in that section applies to every type of “prohibition”. That prohibition may be complete or partial. Any restriction on import or export is to an extent a prohibition. The expression “any prohibition” in Section 111(d) of the Customs Act, 1962 includes restrictions.  “Any prohibition” means every prohibition. In other words all types of prohibitions. Restriction is one type of prohibition. From Item (I) of Schedule I, Part IV to Import Control Order, 1955, it is clear that import of living animals of all sorts is prohibited. But certain exceptions are provided for. But none the less the prohibition continues."

In summing up we observe that two principles of interpretation  emerge from this story of the horse . One is that  the word pet animal , and for that matter, all words have to be interpreted in the context of the statute and not by the text only. If it was interpreted just in a textual manner, it would have led to the absurd proposition that ships coming to India would become Noah`s Ark. The second is that prohibition includes restriction. Restriction is one type of prohibition. Prohibition can be an absolute one or one with a condition. If the condition is not satisfied, then it becomes prohibition. In this case the condition is to have a license. If the license is not there, then it becomes a prohibition.

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