Appellant sought information regarding his consignments being taken away in the past from Customs CFS claiming that the Respondent had failed to establish as to how the disclosure would impede investigation - CIC: Provide the updated status to Appellant
O R D E R
The Appellant vide his RTI application sought information on 09 points regarding his consignments being taken away in the past from CFS armed fake documents; number of consignments against the Bill of Entries that were taken away; approximate value of the consignments taken away; details of the incident that had occurred and issues related thereto.
The CPIO, vide its letter dated 08.01.2018 denied disclosure of information u/s 8 (1) (h) of the RTI Act, 2005. Dissatisfied by the response, the Appellant approached the FAA. The FAA, vide its order dated 01.03.2018 concurred with the response of the CPIO.
Facts emerging during the hearing: The following were present:
Appellant: Mr. S Zakir Hussain through VC;
Respondent: Mr. Keshav, Assistant Commissioner of Customs through VC;
The Appellant reiterated the contents of the RTI application and stated that incorrect and misleading response was provided to him denying information u/s 8 (1) (h) of the RTI Act, 2005. While alleging that certain consignments had been taken away from CFS armed with fake documents, the Appellant referred to the queries raised in his application and submitted that the Respondent had failed to establish as to how the disclosure of information regarding number of consignments against Bill of Entries taken away, value of consignments taken away, etc would impede the process of investigation. In its reply, the Respondent re-iterated the response of the CPIO/ FAA and stated that in a similar matter in Appeal No. CIC/CUSCZ/A/2018/112908 dated 10.04.2018, the Commissionerate- III was instructed to disclose the broad outcome of investigation as soon as the investigation gets completed. The investigation in the said matter was done by SIIB and the aforementioned order by the Commission was passed against Commissionerate- III that had informed them that the process of investigation was still under progress and not concluded totally yet. On being queried regarding the updated status of investigation and if the information sought could be disclosed to the Parliament or State Legislature, if so requested in accordance with the provisions of the RTI Act, 2005, the Respondent feigned ignorance.
The Commission was in receipt of a written submission from the Respondent dated Nil wherein while re-iterating the response of the CPIO/ FAA, a reference was made to the decision of the Commission in CIC/SS/A/2011/000906,000907, 000908, 000819, 000904, 000905, 000926,000927 and 00100 dated 21.12.2012. It was also stated that similar issues were heard and adjudicated in CIC/CUSCZ/A/2018/112908 dated 10.04.2018 wherein the decision given was “keeping in view the facts of the case and the submissions made by both the parties and in the light of the sensitivities expressed by Respondent, no further intervention of the Commission is required in the matter. However, the broad outcome of the investigation should be disclosed to the Appellant as soon as the investigation gets completed”. The investigation was being done by SIIB, which was not functioning under the Public Authority/Commissionerate – IV in which CPIO and FAA herein are functioning. SIIB was functioning under Commissionerate III, and CIC’s order in the aforementioned matter was already in respect of Commte.III. It has further been ascertained from the concerned Public Authority, Commissionerate III that the process of investigation was still under progress and not concluded totally yet. A reference was also made to the decision of Naresh Kumar vs CIC in WP (C) 11065/2015 and CM 325/2016 pertaining to re-agitation of matter amounting to abuse of the process of the Court. In view of the above, it was prayed to reject the instant Appeal.
Having heard both the parties and on perusal of available records, the Commission took note of the proviso to Section 8 of the RTI Act, 2005 wherein it has been stated that “..the information, which cannot be denied to the Parliament or a State legislature shall not be denied to any person…” In this context, the Commission drew reference to The Hon’ble Punjab and Haryana High Court decision in Civil Writ Petition No.1338 of 2011 ( M/s Hindustan Petroleum Corporation Ltd. V. The Central Information Commission and others) (Date of Decision: 24.01.2011) wherein it was held as under:
18. “In the same sequence, proviso to Section 8 of the Act envisaged that the information, which cannot be denied to the Parliament or the State Legislature, shall not be denied to any person.
19. A co-joint reading of the aforesaid provisions will leave no manner of doubt that every information is not exempted. Only those informations, pertaining to commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, the information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information and the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual, unless the authorities are satisfied that the larger public interest justifies the disclosure of such information, are exempted and not otherwise.
20…. Moreover, the CIC was satisfied that larger public interest justifies the disclosure of such information. Since the information sought cannot be denied to the Parliament or the State Legislature, so, the same cannot also be denied to respondent No.2, as contemplated in the proviso to section 8 of the Act.”
A reference can also be made to the decision of the Hon’ble High Court of Delhi in the matter of Kamal Bhasin v. Radha Krishna Mathur and Ors., W.P.(C) 7218/2016 dated 01.11.2017 wherein it was held as under:
9. The proviso of Section 8 (1) of the Act is also important and reads as under: "Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person."
10. By virtue of the aforesaid proviso to Section 8(1) of the Act, it is enacted that information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. In the present case, it was doubtful whether information as to the fate of the complaints can be considered as personal information that has no relationship with public interest or public activity. The activity of the Central Vigilance Department includes investigation and taking action in cases of corruption. Secondly, the complaint related to the allegations of misconduct and how these complaints were treated were clearly matter of public interest.
Moreover, the Commission noted that similar issues were heard and adjudicated by it in Appeal No. CIC/CUSCZ/A/2018/112908 dated 10.04.2018 wherein the Respondent was inter alia instructed to disclose the broad outcome of investigation as soon as the investigation gets completed.
Keeping in view the facts of the case and the submissions made by both the parties, and in the light of the observations made/ decisions cited in the preceding paragraph, the Commission instructs the CPIO to inquire into the matter and provide the updated status to the Appellant within a period of 15 days from the date of receipt of this order. The Commission also instructs the Respondent Public Authority to convene periodic conferences/seminars to sensitize, familiarize and educate the concerned officials about the relevant provisions of the RTI Act, 2005 for effective discharge of its duties and responsibilities. The Appeal stands disposed accordingly.
Citation: Mr. S Zakir Hussain v. CPIO Asst. Commissioner of Customs (RTI) O/o the Commissioner of Customs in Second Appeal No.:- CIC/CCCCZ/A/2018/125206/CUSCZ-BJ, Date of Decision: 15.11.2019