Central Information Commission
Girish Sharma vs Chief Commissioner Of Customs, Kolkata ... on 4 October, 2024
केन्द्रीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ मागग, मुननरका
Baba Gangnath Marg, Munirka
नई निल्ली, New Delhi - 110067
File No : CIC/CCUKL/A/2023/632294
Girish Sharma .....अपीलकर्ाग /Appellant
VERSUS
बनाम
PIO,
Deputy Commissioner of
Customs, Office of the
Principal Commissioner of
Customs, General and Airport
ACC, RTI Cell, Air Cargo
Complex, N.S.C.B.I. airport,
Kolkata - 700 052 ....प्रनर्वािीगण /Respondent
Date of Hearing : 23.09.2024
Date of Decision : 03.10.2024
INFORMATION COMMISSIONER : Vinod Kumar Tiwari
Relevant facts emerging from appeal:
RTI application filed on : 05.05.2022
CPIO replied on : 24.05.2022 and 29.09.2022
First appeal filed on : 26.10.2022
First Appellate Authority's order : 28.11.2022
2nd Appeal/Complaint dated : 03.07.2023
Information sought:
The Appellant filed an RTI application dated 05.05.2022 seeking the following information:Page 1 of 19
"A. With reference to the Show Cause Notice No. 06/2021-22 Dated 29- 03- 2022 in F. No. S-121 (Misc)-14/ 2019 SIB (AP), copy of File dealing with the sanction of Prosecution by the Customs Department against the following in the Court of Learned Chief Judicial Magistrate, Barasat North, 24 Paraganas.
S.No. Name of the Noticees 1 Shri Sampad Narayan Mukherjee 2 Shri Himadri Chakraborty 3 Shri Rahul Ranjan 4 Shri Girish Sharma 5 Ms. Shabana Jahangir 6 Md. Salim 7 Shri Somnath Majumder 8 Shri Sujay Sarkar 9 Shri Raj Kumar Singh B. Copy of the Investigation File F. No. S - 121 (Misc)-14/2019 SIB (AP) in the Office of the Principal Commissioner of Customs, Air Port and ACC Commissionerate, Kolkata.
C. Names of the officers with their and designations, who dealt with the matter in File F. No. S-121 (Misc)-14/2019 SIB (AP).
D. Any part considered confidential may be blocked out from the information."
The CPIO furnished a reply to the Appellant on 29.09.2022 stating as under:
"ii. Reply to the said RTI application was forwarded to the RTI applicant vide letter under e-F.No. GEN/RTI/APP/662/2022-Accts-O/o Pr Commr- Cus-AP/ACC-Kolkata dated 24.05.2022, wherein it was informed that the information / document sought was rejected in terms of Sections 8(1)(a), 8(1)(g), 8(1)(h) and Section 8(1)(j) of the Right to Information Act, 2005. iii. Being aggrieved, the applicant preferred an appeal before the 1st Appellate Authority & Joint Commissioner of Customs, RTI Cell (A&A), Custom House, Kolkata on 12.07.2022 on the grounds that the above- mentioned rejection letter was non- speaking in nature.
iv. The First Appellate Authority and Joint Commissioner of Customs, RTI Cell (A&A), Custom House, Kolkata disposed off the appeal by passing the Order-In-Appeal No. 06/JC/KOL/CUS/RTI (Appeals)/2022 (AP & ACC) Page 2 of 19 dated 01.09.2022, wherein he directed the CPIO to pass a reasoned order with proper justifications for rejection of the information, or otherwise, considering the merits of the application under the contours of the RTI Act, 2005.
3. In view of the subject Order-in-Appeal dated 01.09.2022 to pass the reasoned and speaking order in the subject matter, the matter was re- examined and accordingly, it is observed that:
(i) The case file, for which copies/information was sought, is related to outright smuggling of gold and other prohibited items along with tampering of electronic evidence from the official database of AAICLAS (which is the official custodian of the Customs department for said goods). The applicant is an employee of AAICLAS who is alleged to have tampered with the electronic evidence and against whom prosecution has been initiated in the Barasat Court, which is sub-judice. The file dealing with the sanction of Prosecution and Investigation File F.No. S121 (Misc.)-14/2019 SIB(AP) contains details of modus operandi regarding the smuggling activities as alleged above. The smuggling activity has huge revenue implication to the Government of India and dissemination of those intricate details in the public domain will compromise with the security and economic interests of the nation.
(ii) The applicant is one of the noticees against whom a Show Cause Notice was issued as well as prosecution was launched (next date of hearing is on 19.11.2022 in the Barasat Court).
(iii) The applicant has sought copy of the related case file. This case file contains records and information such as secret and confidential recordings as to how the department collects and processes information about illegal activities, the detailed modus operandi adopted by the noticee and his alleged co-conspirators, legal advice obtained, strategies to be adopted to bring the offenders to justice etc., among others.
(iv) The related Show Cause Notice dated 29.03.2022 is yet to be adjudicated and the related prosecution case is presently sub-judice before the CJM Court, Barasat.
(v) The Hon'ble CIC, in the case of Shri Shankar Sharma and M/s First Global Stock broking Pvt. Ltd. and others Vs. Directorate of Income Tax, Mumba [Appeal No. CIC/AT/A/2007/00007/ dated 10.7.2007] had held as follows-Page 3 of 19
"The term "investigation" used in Section 8(1)(h), in the context of this Act should be interpreted broadly and liberally. We cannot import into RTI Act the technical definition of "investigation" one finds in Criminal Law. Here, investigation would mean all actions of law enforcement, disciplinary proceedings, enquiries, adjudications and so on. Logically, no investigation could be said to be complete unless it has reached a point where the final decision on the basis of that investigation is taken."
(vi) Similarly, in the Case of Shri Vinod Kumar Vs Directorate General of Central Excise Intelligence (No.CIC/AT/A/2010/000910/SS dated 31.05.2011) it was held that information cannot be disclosed if action for prosecution of offenders is initiated, being exempt under Section 8(1)(h). Also in Case No. CIC/SS/A/2011/000684 of Shri L.S. Chandalia V/s Directorate General of Central Excise Intelligence, New Delhi, it was held that information cannot be disclosed to an offender against whom prosecution under Cr PC is lodged in the court of law.
These decisions are squarely applicable in the present factual matrix since both the Show Cause Notice as well as the Prosecution case are ongoing. Dissemination of information pertaining to ongoing sub judice case has the potential to jeopardize the departmental actions as well as will be detrimental to public interest. Accordingly, it appears that the information sought by the applicant is liable to be denied in terms of Section 8(1) (h) of the RTI Act, 2005.
(vii) The information sought relating to prosecution of other co-noticees and the names of officers are also liable to be denied in terms of Section 8(1)(j) of the Act ibid, since the applicant has not made out any case that such information would serve any larger public interest. Rather, the information sough appears to be wholly for personal interest. Section 8 (1) (j) mandates disclosure only when larger public interest so justified and must be read in the context of Section 123 of the Indian Evidence Act. In this regard I am heavily relying on the decision in the case of Shri Milap Choraria V/s CBDT (No. CIC/AT/C/2008/00025 dated 27-7-2009), wherein the decision is reproduced below-
"In the present case, the reason offered by the public authority for not disclosing the information held by them was that they were disinclined to share with the very person they were engaged in a litigation or who seeks to engage the public authority in litigation, the information which they hold and which they have internally processed through Page 4 of 19 consultations with others, such as the legal advisers, officers of the department, etc. The public authority does not want to share with the appellant any information about which officer of the public authority took what position in recording his notes on the file vis-à-vis the appellant's Section 80 CPC notice. They are also disinclined to disclose the advice they have received from legal sources. They doubt the motive of the appellant in seeking to access this information which they believe seeks to inflict harm on the very public authority through whose avenue the litigant is seeking the information to be disclosed. It is the claim of the public authority that under the law of the land, they are obliged to produce the evidence only before a law court and are under no obligation to share it in advance with the appellant who is seeking to engage the public authority in a legal proceeding. They have argued that if this line is accepted, serious harm shall be inflicted on the government and the public authority's ability to safeguard public interest, against intrusive action by self-seeking litigants. A public authority is duty-bound to defend its officers' bona-fide interest as well as its own interest in any litigation with the opposite party, and if it is forced to submit to that opposite party's demand for all information about, what decision was taken to defend the government's interest; what evidence was marshalled and how the evidence was collected and the decision made, would irretrievably damage the public authority's interest as litigant and compromise its ability to carry out its mandate of defending the public authority though its actions.
A public authority must not be obligated to explain its conduct by revealing the entire decision making process to the very litigant with whom it may be engaged in a dispute legal or otherwise. In our view, respondents have persuasively argued that under Section 11(1) of the Act, there are compelling grounds for them to hold confidential information relating to how they wished to defend their legal position in litigation or a threatened litigation. Their reference to the violation of the norms of equity in allowing the very person, who seeks to drag the public authority to court, all information about how the public authority wishes to defend itself is also quite convincing.
In our view, appellant has failed to cite any public interest that would commend superseding the protected interest in the matter of disclosure of the requested information, within the meaning of Section 11(1) of the RTI Act. The appeal petition, therefore, fails scrutiny and is dismissed."Page 5 of 19
(viii) As regards the cited decisions of Hon'ble Supreme Court, I find that the said decisions pertain to Adjudication process. The law mandates that all the relied upon documents of a Show Cause Notice must be supplied to the notice. The applicant in this case is free to approach the Adjudicating Authority for the referred Show Cause Notice, for supply of copy of any relied upon document needed for his defence.
4. In view of the above discussions, the information sought by the applicant Shri Girish Sharma, vide his application No. CCUKL/R/E/22/00036 dated 10/05/2022 is hereby denied in terms of Section 8(1)(h), 8(1)(j) and 11(1) of the RTI Act 2005."
Being dissatisfied, the appellant filed a First Appeal dated 26.10.2022. The FAA vide its order dated 28.11.2022, upheld the reply of CPIO.
Feeling aggrieved and dissatisfied, appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerged during Hearing:
The following were present:-
Appellant: Shri Chander Mohan Sharma, authorized representative of the Appellant present through Video-Conference.
Respondent: Shri Saikat Saha, Assistant Commissioner Customs & CPIO present through Video-Conference.
Written submissions of the Appellant and the Respondent are taken on record.
The representative of the Appellant, during the hearing, reiterated the contents of the RTI application and instant appeal and submitted that cryptic and vague reply was given to the Appellant. He stated that the information sought by the Appellant has been wrongly denied by the Respondent. The information sought is in larger public interest and should be put in public domain.
The representative of the Appellant further referred to the decision of Hon'ble Supreme Court of India in case titled as "Reliance Industries Limited Vs. Securities and Exchange Board of India and Ors." dated 05.08.2022.
From the perusal of the reply of the CPIO, it is noted that the information is denied under Sections 8(1)(a), 8(1)(g), 8(1)(h) and Section 8(1)(j) of the RTI Act Page 6 of 19 and further noted that they have categorically informed the Appellant that documents as requested, are the documents as listed in the RUD along with the SCN; has already been provided to him. The applicant has sought copy of the related case file along with investigation report. This case file contains records and information such as secret and confidential recordings as to how the department collects and processes information about illegal activities, the detailed modus operandi and his alleged co-conspirators, legal advice obtained, strategies to be adopted to bring the offenders to justice etc., among others. The Respondent submitted that the related prosecution case is presently sub-judice before the CJM Court, Barasat. The information sought relating to prosecution of other co-noticees and the names of officers are also liable to be denied in terms of Section 8(1)(j) of the Act, since the Appellant has not made out any case that such information would serve any larger public interest. Rather, the information sought appears to be wholly for personal interest. Section 8 (1) (j) mandates disclosure only when larger public interest so justifies.
Decision:
The Commission upon a perusal of records and after submissions of both the parties, notes that the core contention of the Appellant revolves around the issue of denial of information by the CPIO under Section 8(1)(a), 8(1)(g), 8(1)(h) and Section 8(1)(j) of RTI Act. In response to which the CPIO informed the factual position that the information related to the Appellant as mentioned in 'Relied Upon Documents' has already been provided to the Appellant. The information which is related to personal information of third party is exempted from disclosure under the provisions of the RTI Act.
Before deciding on the issue of disclosure of information, the complexities involved in such corruption trials and how disclosure of information may dilute the proceedings has to be understood. The Hon'ble High Court of Madras in a recent judgement in Gulab Singh Rana vs. CPIO, Indian Overseas Bank, WP No 37231/ 2016 decided on 08.12.2021 has elaborately dealt with the issue. The following observations are particularly relevant to the instant matter:
"38. The petitioner requested for a copy of request letter received from CBI for seeking sanction, copy of internal office memorandum containing the Page 7 of 19 opinion/views of Disciplinary Authority for giving sanction for prosecution, copy of first advice given by CVC, New Delhi, the outcome of the reconciliatory meeting between Disciplinary Authority and CBI office of the New Delhi, the copy of any further clarification sought for by the CVC, the copy of internal office memorandum containing the opinion/views of Disciplinary Authority for giving sanction for prosecution, the copy of latest correspondence from CVC requesting/advising the Bank, the copy of internal office memorandum containing the opinion/views of the present Disciplinary Authority and finally copy of draft sanction supplied by CBI.
39. Considering the nature of questions sought for, interestingly, the first information is the request letter received from the CBI for seeking sanctioning. The said letter may have certain information pertaining to the investigation/interrogation. The second document is copy of internal office memorandum containing the opinion/views of the Disciplinary Authority. 40 .This Court is of the considered opinion that note file, opinions, views of the Disciplinary Authority may vary from time to time based on the informations and based on the collection of facts and evidences. Even at later point of time, initial opinion may not be final opinion in many cases.
Subsequent facts may provide a different views and opinion and therefore, if the copy of the opinion and views are supplied, it will create unnecessary hindrance for the peaceful investigation, interrogation and to proceed with the departmental disciplinary proceedings as well as the criminal proceedings. For example, on receipt of the preliminary report, the Disciplinary Authority would have formed certain opinions or expressed some views. However, those opinions and views cannot be construed as final, as far as the decisions to be taken. During subsequent period, if further documents are made available or certain other facts are placed, then the Disciplinary Authority may change his opinion or views. This is exactly the reason why, in disciplinary case, the rule contemplates opportunities to the delinquent officials. Therefore, the internal office memorandum containing opinion/views if supplied, undoubtedly, would create unnecessary issues as the petitioner will certainly rely on the document for the purpose of destroying the case. However, any accused/delinquent officials is entitled to defend his case in the manner known to law.
41. Thus, furnishing of such opinions and views of the Disciplinary Authority at various stages, if provided under the RTI Act, then it will hamper the continuation of the disciplinary proceedings and further, disrupt the investigation to be conducted by the investigating agency.
42. Perusal of other documents and information sought for by the petitioner are all relatable to the reconciliatory meeting between the officials. Clarifications sought for by the CVC, latest correspondence etc., of such Page 8 of 19 information and documents sought for reveals that it is between the authorities and more so, relating to views/opinions, internal correspondences etc.,
43. No doubt, all such correspondences are protected under Section 8 of the RTI Act. However, it is the "subjective satisfaction" of the authorities. The "subjective satisfaction" must be considered by the Public Information Officer, while complying with the request of the information seekers. This exactly is the purpose and object of 8(h) of the Act. "Section 8(h) contemplates of information which would impede the process of investigation or apprehension or prosecution of offenders."
44. Where the circumstances narrated under Section 8(h) on that informations, which would impede the process of investigation or apprehension or prosecution of offenders. Thus, if the information provided, would cause any hindrance to the investigation or apprehension or prosecution of offenders. The language employed is "Apprehension". Thus, "Apprehension" of the competent authority is also considered in the legislation. The word "Apprehension", no doubt, can be interpreted widely and further, it provides discretion to the authorities for forming an opinion, whether there is an "Apprehension" or not. In this regard, the subjective satisfaction of the competent authority is of paramount importance. The Public Information Officer is expected to consider in the event of furnishing such informations, which all are connected with the investigation or prosecution of offenders and providing of such informations, would impede the process, then, he is empowered to exercise power of discretion and reject the application of the information seeker. Thus, the scope of section 8(h) is to be understood, with reference to the context and to the subjective satisfaction of the authorities competent. If the competent authority satisfied that there is a likelihood of impede the process of investigation or prosecution of offenders, then such informations or documents shall be denied.
45. The purpose and object of the exemption clause is to ensure that the administrative confidentiality are protected and because of providing of information, the further continuation of investigation or prosecution cannot be impeded. This being the scope of exemption under Section 8(h), the questions sought for by the petitioner in the present case with reference to 8(h) is to be considered.
46. As discussed in the aforementioned paragraphs, the questions and documents sought for by the petitioner in the present case is relatable to internal office memorandum containing opinions/views of reconciliatory meeting between the Disciplinary Authority and CBI clarification sought for Page 9 of 19 by CVC internal office memorandum containing opinions/views latest correspondences from CVC etc.,
47. This Court is of the considered opinion that such informations, if provided, it will create unnecessary hampering of the Disciplinary Proceedings or the prosecution. Even an apprehension in this regard is sufficient is to deny information to the applicants. The word "Apprehension" is employed in the Act, so as to protect the prosecution and process of investigation, which should not be paralyzed at any circumstances in the public interest. When the investigation is undertaken, then the authorities must be provided with an amount of discretion for the purpose of culling out the truth in respect of the allegations. Thus, any hindrance in between, would undoubtedly paralyze the investigation process, which would dilute the prosecution and would extend unlawful benefit to the accused persons.
48. The opinions and views formed by the competent authorities on every stage may vary or change depending on the progress made in the investigation and based on the further facts culled out from and out of the evidence. During the course of such investigation or prosecution, if information are provided regarding the opinions already formed, then undoubtedly the same will hamper further investigation and disrupt the prosecution to be conducted by the agency. If such nature of information or documents are provided, then it may not be possible to proceed with the prosecution for the purpose of establishing the offence.
49. In this context, the rights of both the parties should be considered by the Courts. It is not only the right of the information seekers, but the right of the information provider must also be considered by this Court. Whenever a statutory right is conferred to the citizen, equally such right is conferred to the other citizen, whose interest is also to be protected before allowing a person to exercise such a statutory right. To elaborate, right and duties are corresponding terms, so also, rights can be exercised by any citizen, honouring the corresponding rights of the other citizen. It is exactly the constitutional perspective and the philosophy. Take a case, where information or documents are mechanically provided to the information seekers in all circumstances, then the right and duties of the investigating agency and the prosecutors are denied, establishing their cases before the competent Court of law or before the Disciplinary Authority. Thus, a balancing approach is required, while implementing the provisions of the RTI Act. It is not as if, an information seeker is entitled to get all information and documents including certain internal correspondences and views or opinions recorded by the competent authorities then and there and time to time. Therefore, practical and pragmatic approach coupled with rules of Page 10 of 19 constructive interpretation is of paramount importance to take a decision in such circumstances. In the event of committing any lapses, the same would provide unlawful gain to the accused/delinquent persons, which would result in destruction of the prosecution or the case of the Disciplinary Authority and larger the public interest involved in the matter of criminal prosecution is also to be considered by the Court. State being the prosecutors, right of investigation, collected evidence, record the opinions and views in those files must be protected in all circumstances and by obtaining all such information and documents from the competent authorities, the accused may not be allowed to destroy the basis of prosecution as such views/opinions or internal correspondence can never be construed as final opinion/views or the final decision.
50. Considering the fact that the Central Information Commission elaborately considered the grounds raised by the petitioner in the order passed in the Second Appeal, arrived a conclusion that the exemption granted to CBI from applicability of the RTI Act, in terms of Section 24(1) would became meaningless. If RTI applicants would get information from another Public Authority, the very information that they cannot get from the CBI or information, inexplicably linked to the information and materials provided by the CBI to the Public Authority.
51. The above findings of the Central Information Commission explicitly clarifies that what an information seeker could not able to get from the CBI, cannot attempt to get from his employer or from other agencies. Such calculated applications filed under the RTI Act, at no circumstances, are entertainable. In the present case, the information and documents sought for are no doubt relating to the files being maintained by the CBI and about the investigation of the Criminal case, so also pertaining to the sanction, which all are relatable to investigation/interrogation or prosecution. Thus, the first proviso to Section 24(1) cannot be extended merely under the ground that the word 'Corruption' is employed in the Statute.
52. Distinctions are to be drawn in this regard and Section 24(1) proviso must be read and understood along with the spirit of Section 8(h) of the Right to Information Act. Rule of constructive interpretation in such circumstances are imminent to ensure that the purpose and object of the RTI Act is not defeated. So also at the time of providing information or documents, the rights of other parties and the criminal laws system of prosecution by the State is not affected or destroyed on account of providing such confidential information to the information seekers.
53. In view of the principles considered by this Court in the aforementioned paragraphs, this Court is able to form a concrete opinion that the Page 11 of 19 information and documents sought for by the petitioner are rightly rejected by the Public Information Officer, Indian Overseas Bank, First Appellate Authority and finally by the Central Information Commission/Second Appellate Authority."
Furthermore, the Hon'ble High Court of Delhi in Union of India vs. Shiv Narain, WP(C) 7204/2016 dated 27.03.2019 which pertains to similar facts and circumstances advised the information seeker to obtain the information from the concerned trial court where the matter was pending. The relevant observations are hereunder:
"2. The respondent herein sought information from the petitioner on the following two issues:- "1. Whether the report vide letter no. RSVY/CE/CE & PM/55(1) 892 dated 12.02.2013 addressed to Inspector of police, CBI, ACB, Patna by Shri D.S. Kapur CE cum PM RSVY project Zone, CPWD, Patna in connection with the subject referred above was submitted by the CBI before the sanctioning Authority before grant of prosecution sanction. 2. The certified copy of the note sheet of the above mentioned case from the beginning to the issue of prosecution sanction may also be given for which I am ready to pay the requisite fee."
4. Learned counsel for the respondent has fairly drawn my attention to an order dated February 12, 2019 passed by the Supreme Court in Civil Appeal No. 1632/2019, which is an appeal arising from the orders passed by the Coordinate Bench of this Court in W.P.(C) 2272/2013 dated September 16, 2014 and the Division Bench in LPA 471/2015 dated August 17, 2015, wherein information also includes copy of the note sheet for processing the decision to refer the said case to Anti Corruption Branch of CBI for investigation. In the said case, the said information was denied to the petitioner Ashok Kumar Sharma.
5. The Supreme Court in its order dated February 12, 2019 has held as under:-
4. The dispute remains about document Nos.1, 3 and 4 as they were not supplied considering the provisions of Section 8(1)(h) of the Right to Information Act which prohibits disclosure of information connected with ongoing investigations and prosecutions and it was opined that it was source information that has triggered the anti-corruption proceedings and nothing should be done which affects the proceedings or which compromises the position of the sources of information.
5. In view of the aforesaid reasons employed by the Information Commissioner, we are of the opinion that there was justification in refusing to supply the aforesaid documents. However, as rightly pointed out by learned counsel for the appellant that during the course of trial, if the trial Court feels it appropriate and if a prayer is made, the documents may be called by Court in accordance with law.Page 12 of 19
6. The learned counsel for the respondent submits that the respondent herein shall have the liberty to seek the document, which he has sought under the RTI Act from the learned Trial Court, in terms of the order of the Supreme Court. Suffice it would be to state that it is for the respondent herein to seek appropriate orders from the learned Trial Court. In view of the order of the Supreme Court, the order of the CIC dated February 29, 2016, is set aside, the writ petition is allowed."
The Commission further observes that the CPIO and FAA vide letters dated 29.09.2022 and 28.11.2022 had given comprehensive observations/decisions on the RTI application and first appeal of the Appellant.
The Appellant neither in his RTI application nor in his second appeal has established any larger public interest and his locus in seeking personal information/details of third party.
Moreover, the contention of the Appellant seeking information in larger public interest is rather feeble and lacks conviction keeping in view a catena of judgments of the superior Courts as under with respect to the aspect of larger public interest:
The Hon'ble Supreme Court in the matter of Bihar Public Service Commission vs. Saiyed Hussain Abbas Rizwi & Anr. [CIVIL APPEAL NO.9052 OF 2012] observed as under:
'23. The expression 'public interest' has to be understood in its true connotation so as to give complete meaning to the relevant provisions of the Act. The expression 'public interest' must be viewed in its strict sense with all its exceptions so as to justify denial of a statutory exemption in terms of the Act. In its common parlance, the expression 'public interest', like 'public purpose', is not capable of any precise definition. It does not have a rigid meaning, is elastic and takes its colour from the statute in which it occurs, the concept varying with time and state of society and its needs. [State of Bihar v. Kameshwar Singh (AIR 1952 SC 252)]. It also means the general welfare of the public that warrants recommendation and protection; something in which the public as a whole has a stake [Black's Law Dictionary (Eighth Edition)]'. Emphasis Supplied Page 13 of 19 '24. The satisfaction has to be arrived at by the authorities objectively and the consequences of such disclosure have to be weighed with regard to circumstances of a given case. The decision has to be based on objective satisfaction recorded for ensuring that larger public interest outweighs unwarranted invasion of privacy or other factors stated in the provision. Certain matters, particularly in relation to appointment, are required to be dealt with great confidentiality.' '.... Similarly, there may be cases where the disclosure has no relationship to any public activity or interest or it may even cause unwarranted invasion of privacy of the individual. All these protections have to be given their due implementation as they spring from statutory exemptions. It is not a decision simpliciter between private interest and public interest. It is a matter where a constitutional protection is available to a person with regard to the right to privacy. Thus, the public interest has to be construed while keeping in mind the balance factor between right to privacy and right to information with the purpose sought to be achieved and the purpose that would be served in the larger public interest, particularly when both these rights emerge from the constitutional values under the Constitution of India.' Emphasis Supplied Similarly, in another judgment of the Hon'ble Supreme Court in the matter of S. P. Gupta v President of India, [AIR 1982 SC 149], with reference to 'public interest' it has been maintained that:
'Redressing public injury, enforcing public duty, protecting social, collective, 'diffused' rights and interests vindicate public interest... [in the enforcement of which] the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected.' Emphasis Supplied And, in the matter of State of Gujarat vs. Mirzapur Moti Kureshi Kasab Jamat & others [Appeal (Civil) 4937-4940 of 1998], the Hon'ble Supreme Court has held that:
'the interest of general public (public interest) is of a wide importance covering public order, public health, public security, morals, economic welfare of the community, and the objects mentioned in Part IV of the Page 14 of 19 Constitution [i.e. Directive Principles of State Policy]'. Emphasis Supplied The Appellant contended that one can sought information in Customs Act, therefore, information sought under the RTI act cannot be denied to him. In this regard, the Commission refers to a decision of Delhi High Court in W.P.(C) 340/2023 & CM APPL. 1348/2023, Central Public Information Officer vs. Kailash Chandra Moondra, wherein it has been categorically held that the Right to Information Act, 2005 and Section 138 of the Income Tax Act, 1961 deal with disclosure of information. While Right to Information Act is a general law concerning the disclosure of information by the public authorities, Section 138 of the Income Tax Act is a special legislation dealing with disclosure of information concerning the assesses. The relevant extract of the aforesaid Delhi High Court order is reproduced hereinbelow:
"He places reliance upon a Judgment dated 22.01.2024 passed by this Court in W.P.(C) 10193/2022 in the case of "CPIO/Dy. Commissioner of Income Tax HQ Exemption, New Delhi vs. Girish Mittal" wherein this Court has observed as under:
15. Applying the said ratio to the facts of the present case, Section 138 (1)(b) and Section 138 (2) of the IT Act which lays down a specific procedure relating to disclosure of information relating to a third party under the IT Act would override Section 22 of the RTI Act. The information sought for by the Respondent herein is clearly covered by Section 138(1)(b) of the IT Act. The satisfaction of Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner is, therefore, necessary before such information can be divulged. That satisfaction cannot be abrogated to any other authority under a general Act for divulging the information sought for.
16. The said judgment has been followed by the Apex Court in Rakesh Kumar Gupta v. Income Tax Appellate Tribunal (ITAT), 2007 SCC OnLine CIC 315.
17. In Chief Information Commr. v. High Court of Gujarat, (2020) 4 SCC 702, when an issue was raised over furnishing of information of certified copies obtained from the High Court of Gujarat by invoking the provisions of the RTI Act, the Apex Court, while resorting to the Gujarat High Court Rules, has observed as under:
"35. The non obstante clause of the RTI Act does not mean an implied repeal of the High Court Rules and orders framed under Article 225 of the Constitution of Page 15 of 19 India; but only has an overriding effect in case of inconsistency. A special enactment or rule cannot be held to be overridden by a later general enactment simply because the latter opens up with a non obstante clause, unless there is clear inconsistency between the two legislations. In this regard, we may usefully refer to the judgment of the Supreme Court in R.S. Raghunath v. State of Karnataka [R.S. Raghunath v. State of Karnataka, (1992) 1 SCC 335:
1992 SCC (L&S) 286] wherein, the Supreme Court held as under: (SCC pp. 356- 57, para 38).
"38. In Ajoy Kumar Banerjee v. Union of India [Ajoy Kumar Banerjee v. Union of India, (1984) 3 SCC 127: 1984 SCC (L&S) 355], Sabyasachi Mukharji, J. (as his Lordship then was) observed thus : (SCC p. 153, para 38).
"38. ... As mentioned hereinbefore if the Scheme was held to be valid, then the question what the general law is and what is the special law and which law in case of conflict would prevail would have arisen and that would have necessitated the application of the principle "generalia specialibus non derogant". The general rule to be followed in case of conflict between the two statutes is that the later abrogates the earlier one. In other words, a prior special law would yield to a later general law, if either of the two following conditions is satisfied:
"(i) The two are inconsistent with each other.
(ii) There is some express reference in the later to the earlier enactment."
If either of these two conditions is fulfilled, the later law, even though general, would prevail.'" (emphasis supplied)
18. Applying the said analogy to the facts of the present case, Section 138(1)(b) of the IT Act which specifically states that information relating to an assessee can only be supplied subject to the satisfaction of Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner, as the case may be, would prevail over Section 22 of the RTI Act.
19. The issue raised herein has been settled by a Bench of three Member Bench of the CIC which, in the opinion of this Court, is binding on the Bench which has passed the impugned order. A Bench of three Commissioners of the CIC in G.R. Rawal v. Director General of Income Tax (Investigation), 2008 SCC OnLine CIC 1008, while considering the very same issue has observed as under:
Page 16 of 19"15. Thus, both the Right to Information Act, 2005 and Section 138 of the Income Tax Act, 1961 deal with disclosure of information. While Right to Information Act is a general law concerning the disclosure of information by the public authorities, Section 138 of the Income Tax Act is a special legislation dealing with disclosure of information concerning the assesses. This Commission in "Rakesh Kumar Gupta v. ITAT, decided on 18th September 2007 decided by a Full Bench, has dealt with the issue of applicability of special law to the exclusion of the general law. The Commission has relied upon the Hon'ble Apex Court's decision in "Chandra Prakash Tiwari v. Shakuntala Shukla
-- AIR 2002 SC 2322". The following two paragraphs from the said decision of the Commission are pertinent and quoted below:
37. A special enactment or Rule, therefore, cannot be held to be overridden by a later general enactment or simply because the latter opens up with a nonobstante clause unless there is clear inconsistency between the two legislations -- one which is later in order of time and the other which is a special enactment. This issue came again for consideration before the Hon'ble Apex Court in Chandra Prakash Tiwari v. Shakuntala Shukla -- AIR 2002 SC 2322 and the Hon'ble Supreme Court quoted with approval the Broom's Legal Maxim in reference to two Latin Maxims in the following words:
"It is then, an elementary Rule that an earlier Act must give place to a later, if the two cannot be reconciled - lex posterior derogate priori - non est novum ut priores leges ad posteriors trahantur (Emphasis supplied) - and one Act may repeal another by express words or by implication; for it is enough if there be words which by necessary implication repeal it. But repeal by implication is never to be favoured, and must not be imputed to the legislature without necessity, or strong reason, to be shown by the party imputing it. It is only effected where the provisions of the later enactment are so inconsistent with, or repugnant to, those of the earlier that the two cannot stand together2; unless the two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time a repeal cannot be implied; and special Acts are not repealed by general Acts unless there be some express reference to the previous legislation, or a necessary inconsistency in the two Acts standing together, which prevents the maxim generalia specialibus non derogant (Emphasis supplied) from being applied. For where there are general words in a later Act capable of reasonable application without being extended to subjects specially dealt with by earlier legislation, then, in the absence of an indication of a particular intention to that effect, the presumption is that the general words were not intended to repeal the earlier and special legislation, or to take away a particular privilege of a particular class of persons."Page 17 of 19
38. In the aforesaid case, the Hon'ble Apex Court also cited with approval an earlier decision in Maharaja Pratap Singh Bahadur v. Thakur Manmohan Dey - MANU/SC/0202/1966, in which it was indicated that an earlier special law cannot be held to have been abrogated by mere implication. That being so, the argument regarding implied repeal has to be rejected for both the reasons set out above."
Propriety demanded that the CIC ought to have followed the opinion of the larger Bench, which is binding on it.
8. In view of the above, the writ petition is allowed."
Further, the decisions as referred by the representative of the Appellant is not at all related with the facts of the present case. Nothing has been stated in the said citation that information which is related to third party can be provided to another noticee.
In the light of the above observations and latest judgements of the superior courts, the Commission finds no reason to interfere in the decision of CPIO.
The Commission finds no infirmity in the reply and as a sequel to it further clarifications tendered by the CPIO during hearing as the same was found to be in consonance with the provisions of RTI Act.
No intervention of the Commission is warranted in the matter.
The appeal is disposed of accordingly.
Vinod Kumar Tiwari (विनोद कुमार वििारी) Information Commissioner (सूचना आयुक्त) Authenticated true copy (अनिप्रमानणर् सत्यानपर् प्रनर्) (S. Anantharaman) Dy. Registrar 011- 26181927 Date Page 18 of 19 Copy To:
The First Appellate Authority and Joint Commissioner of Customs, Office of the Principal Commissioner of Customs, General and Airport, Custom House, 15/1 Strand Road, Kolkata - 700001 Page 19 of 19 Recomendation(s) to PA under section 25(5) of the RTI Act, 2005:-
Nil Powered by TCPDF (www.tcpdf.org)