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Central Information Commission

Krishna Aloorkar vs Chief Commissioner Of Customs, ... on 18 April, 2019

                                       के न्द्रीय सूचना आयोग
                             Central Information Commission
                                  बाबा गंगनाथ मागग, मुननरका
                              Baba Gangnath Marg, Munirka
                                  नई दिल्ली, New Delhi - 110067

नितीय अपील संख्या / Second Appeal No.:- CIC/CCUM1/A/2017/181961-BJ

Mr. Krishna Aloorkar
                                                                         ....अपीलकताग/Appellant
                                           VERSUS
                                              बनाम
CPIO
NS - (Gen.), NS - II & IV
JNCH, Nhava Sheva, Office of the Commissioner of Customs
NS _ (GEN) NS - II & IV, RTI Cell, B - 401
Jawaharlal Nehru Customs House
Nhava Sheva, Dist. Raigad - 400707
Maharashtra
                                                                      ...प्रनतवािीगण /Respondent
Date of Hearing        :             16.04.2019
Date of Decision       :             18.04.2019

Date of RTI application                                                     22.09.2017
                                                                            (mentioned in 2nd
                                                                            Appeal)
CPIO's response                                                             04.10.2017
Date of the First Appeal                                                    15.10.2017
                                                                            (mentioned in 2nd
                                                                            Appeal)
First Appellate Authority's response                                        Not on Record
Date of diarised receipt of Appeal by the Commission                        08.12.2017
                                           ORDER

FACTS:

The Appellant vide his RTI application sought information regarding the final orders passed u/s 128A of the Custom Act, 1962 by Shri K.C. Gupta, Commissioner of Customs (Appeals) JNCH, Sheva Mumbai-II dated 13.03.2015 in the cases mentioned in the RTI application.

The CPIO, vide its letter dated 04.10.2017 denied disclosure of information u/s 8 (1) (d) and (j) of the RTI Act, 2005. Dissatisfied by the response, the Appellant approached the FAA. The order of the FAA, if any, is not on the record of the Commission.

HEARING:

Facts emerging during the hearing:

The following were present:

Appellant: Mr. Krishna Aloorkar through VC;

Respondent: Mr. Anand Prakash, CPIO & DC through VC;

The Appellant reiterated the contents of the RTI application and stated that the information sought had been wrongly denied to him citing Section 8(1) (d) and (j) of the RTI Act, 2005. In its reply, the Respondent reiterated his response and also quoted the issue of limitation of time for filing the first appeal as per provision of Section 19 (1) of the RTI Act, 2005. It was further submitted that the orders of Commissioner of Customs (Appeals) contained sensitive and confidential third party information including the business of Appellants, name of exporters/ suppliers, the negotiated prices of the goods and other personal information of the Appellants, the disclosure of which had no relationship with any public interest. On being queried by the Commission if any matter pertaining to the Third Party was pending before the Court of Law, the Appellant replied in the affirmative and submitted that being an erstwhile public servant posted in the Forest Department, Govt. of Maharashtra, he had booked Mr. Rajesh Madhukar Pokharkar and three others in a forest crime relating to smuggling of Red Sanders Wood which was pending adjudication. Hence, he required the information regarding similar matters investigated by Customs Department in order to substantiate the contentions before the JMFC, Panvel Court. On being queried by the Commission if the Appellant had filed any complaint with the Vigilance Directorate of the Respondent Public Authority, he replied in the negative. However, he expressed deep apprehension that having been a Forest Officer, he had doubts that disclosure of the details in aforesaid cases would facilitate conviction of the alleged culprits involved in smuggling of wood and other illegal activities.

The Commission was in receipt of a written submission from the Appellant dated 08.04.2019 wherein it was stated that he had filed the First Appeal on 15.10.2017 but no reply was received within the time limit hence had filed the second appeal in the matter. As regards denial of information u/s 8 (1) (d) and (j) of the RTI Act, 2005, it was stated that the information sought was regarding orders passed on appeals of Shri Rajesh Madhukar Pokharkar who was the Appellant before the Commissioner of Customs in cases of smuggling of Red Sanders Wood and that Mr. Pokharkar was the prime accused in a Range Forest Office Forest Crime No. M/11/2013-14 and Criminal Case No 451/2014- JMFC Panvel Court. Explaining that at that time he had booked Mr. Pokharkar and three others in the Forest Crime mentioned above, the Appellant submitted that during the course of investigation, the accused Mr. Pokharkar revealed that he was caught by the Customs officials hence he sought the information from the Customs, JNCH, Navi Mumbai seeking details of a similar case booked by the Customs Department. However, the Customs officials provided a simple reply to him without any detailed case papers which were instrumental in securing conviction of the accused in their forest case. He further stated that it was a very important case of smuggling of Red Sanders Wood worth Rs. 2 Crores and the accused Mr. Pokharkar was the prime accused in the above mentioned forest crime. It was also alleged that Mr. Pokharkar was instrumental in smuggling of banned Red Sanders Wood by illegally procuring and exporting it to other countries under the garb of business. The Appellant thereafter made a reference to the decision of the Commission in CIC/DSESJ/A/2016/305423 dated 16.10.2017 wherein it was decided that Judicial Proceedings and Records were public records and the Appellant had the right to secure the desired information. In the present instance, the information sought was quasi judicial hence could be secured. While referring to Article 48A and 51A (g) of the Constitution of India, it was stated that to protect the forest and environment, it was essential to secure conviction of the miscreants who indulged in destroying the nature. If such criminals were allowed to get away from forest crimes the society at large would have to bear the environment loss.

The Commission was also in receipt of a written submission from the Respondent dated 12.04.2019 wherein while re-iterating the reply of the CPIO, it was stated that the First Appeal was filed by the Appellant after a period of 30 days from the order of the CPIO which was received by the Appellant on 10.10.2017 while the Appeal was received in their office on 13.11.2017 without any reason for the delay. Hence, the FAA was not inclined to condone the delay in filing and accordingly gave its decision vide order dated 14.11.2017. Thus, it was prayed to set aside the instant Appeal.

The Commission referred to the definition of information u/s 2(f) of the RTI Act, 2005 which is reproduced below:

"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."

Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:

"(j) right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes ........"

In this context a reference was made to the Hon'ble Supreme Court decision in 2011 (8) SCC 497 (CBSE Vs. Aditya Bandopadhyay), wherein it was held as under:

35..... "It is also not required to provide 'advice' or 'opinion' to an applicant, nor required to obtain and furnish any 'opinion' or 'advice' to an applicant. The reference to 'opinion' or 'advice' in the definition of 'information' in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act."

Furthermore, the Hon'ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:

6. "....Under the RTI Act "information" is defined under Section 2(f) which provides:

"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."

This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed."

7. "....the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the "public authority" under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him."

The Hon'ble High Court of Sikkim in the matter of Sancha Bahadur Subba vs. State of Sikkim W.P. (C) 31/2017 dated 30.04.2018 had held as under:

"30........ As can be culled out from the averments and submissions, the Petitioner herein suspects that the Respondent No. 5 is in possession of assets disproportionate to his known sources of income, however mere suspicion without any prima facie material to substantiate it does not justify the disclosure of such information of the Respondent No. 5 as rests with the concerned government authority. This situation indeed appears to be a fishing expedition embarked upon by the Petitioner without any bona fide public interest. In these circumstances, it obtains that disclosure of such information would cause unwarranted invasion of the privacy of the individual and falls under the ambit of Section 8(1)(j) of the RTI Act."

In the context of non disclosure of information under Section 8(1)(d) of the RTI Act, 2005, the decision in Naresh Trehan vs Rakesh Kumar Gupta (W.P(C) 85/2010) decided on 24.11.2014, was referred to, wherein it was held as under:

14. "....Such information would clearly disclose the pricing policy of the assessee and public disclosure of this information may clearly jeopardise the bargaining power available to the assessee since the data as to costs would be available to all agencies dealing with the assessee. It is, thus, essential that information relating to business affairs, which is considered to be confidential by an assessee must remain so, unless it is necessary in larger public interest to disclose the same. If the nature of information is such that disclosure of which may have the propensity of harming one's competitive interests, it would not be necessary to specifically show as to how disclosure of such information would, in fact, harm the competitive interest of a third party. In order to test the applicability of Section 8(1)(d) of the Act it is necessary to first and foremost determine the nature of information and if the nature of information is confidential information relating to the affairs of a private entity that is not obliged to be placed in public domain, then it is necessary to consider whether its disclosure can possibly have an adverse effect on third parties."

In this context, the Commission also referred to the decision of the Hon'ble Supreme Court of India in Institute of Chartered Accountants of India Vs. Shaunak H. Satya and Ors) in Civil Appeal NO. 7571 of 2011- dated 02/09/2011 was referred to, wherein it was held that:

"The use of the words "person" shows that the holder of the information in a fiduciary relationship need not only be a 'public authority' as the word 'person' is of much wider import than the word 'public authority'. Therefore the exemption under Section 8(1)(e) is available not only in regard to information that is held by a public authority (in this case the examining body) in a fiduciary capacity, but also to any information that is given or Page 4 of 5 made available by a public authority to anyone else for being held in a fiduciary relationship. In other words, anything given and taken in confidence expecting confidentiality to be maintained will be information available to a person in fiduciary relationship".

DECISION:

Keeping in view the facts of the case and the submissions made by both the parties, no further intervention of the Commission is required in the matter.

The Appeal stands disposed accordingly.

Bimal Julka (नबमल जुल्का) Information Commissioner (सूचना आयुक्त) Authenticated true copy (अनिप्रमानणत सत्यानपत प्रनत) K.L. Das (के .एल.िास) Dy. Registrar (उप-पंजीयक) 011-26182598/ [email protected] दिनांक / Date: 18.04.2019 Page 5 of 5