Central Information Commission
Binod Kumar Gupta vs Central Board Of Indirect Taxes And ... on 3 February, 2023
Author: Saroj Punhani
Bench: Saroj Punhani
के ीय सूचना आयोग
Central Information Commission
बाबागंगनाथमाग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No: CIC/CBECE/A/2021/661561 +
CIC/CCPPZ/A/2022/605591
Binod Kumar Gupta ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
Department of Revenue,
Office of the Commissioner, Customs
(Prev), Uttar Pradesh & Uttarakhand,
RTI Cell, 5th Floor, Kendriya Bhawan,
Sector-H, Aliganj, Lucknow - 226024,
Uttar Pradesh. .... ितवादीगण /Respondent
Date of Hearing : 23/01/2023
Date of Decision : 02/02/2023
INFORMATION COMMISSIONER : Saroj Punhani
Note - The abovementioned Appeals have been clubbed together for decision
as these are based on similar RTI Applications.
Relevant facts emerging from appeal:
RTI application (s) filed on :06/09/2021
CPIO replied on :30/09/2021 & 09/12/2021
First appeal (s) filed on :08/10/2021 & 21/12/2021
First Appellate Authority order (s) :16/11/2021 & 14/01/2021
2nd Appeal (s)/Complaint dated :NIL
1
CIC/CBECE/A/2021/661561
Information sought:
The Appellant filed an RTI application dated 06.09.2021 seeking the following information:
1. RUD 4- page no 38 of the panchnama date. 19.12.19 drawn at L.B.S.I Airport Varanasi.
2. RUD 14-statement of shri Anwar Khalid date 19.12.2019 (page no.96-98).
3. RUD -21- Panchnama date 19.12.19 drawn at residential premises of sri.
Pramod Kumar Verma imp from page no 127-139.
4. RUD-26 - Page no-154-179 (26 page) of the statement of Sri Pramod Kumar Verma imp.
5. RUD 30 - Page no-199-212 of the statement of Sri C.B.Singh date13.02.2020.
6. RUD 32 - page no.218-264 of the statement of Sri Abhay Raj Singh.
7. The statement of the accused as well as the persons/officers shown to me at the time of tendering of my statement date 30.01.2020, on which my signature was taken to offer my comments, as the statement of the accused provided as the time of serving the show cause notice does not reflect.my signature.
8. All the documents/papers on which my signature was taken forcefully by the DRI as the time of tendering my statement date 30.01.2020 and/or at the time of retrieval of the date from my cellphone on date 16/17/1/2020.
9. The CDR/message/what's app message/Audio clip of the smugglers apprehended with smuggled goods on 19.12.2019 at L.B.S.I airport Varanasi.
10.The CDR/message/what's app message/Audio clip of the cell phone of the undersigned Binod Kumar Gupta. erst while the Assistant Commissioner costumes Division Varanasi.
211.The name of agency with complete address to make forensic test to retrieve date of the mobile of Binod Kumar Gupta as well as the accused persons.
12.License/Certificate of the above agency to make forensic test to retrieve date from the mobile.
The CPIO furnished a pointwise reply to the appellant on 30.09.2021 stating as under:
"01 to 06. The desired documents/information has already been provided to you by the DRI, Lucknow. In this regard, the copy of letters of DRI F. No. DRI/LZU/GI/26/Enq-03(Int.0)/2020/1271 dated 07.08.2020 and DRI F. No. DRI/LZU/GI/26/Enq-03(Int.0)/2020/10103 dated 15.09.2020 are being enclosed for ready reference. "
07 to 12. Information sought does not pertain to this office.
Being dissatisfied, the appellant filed a First Appeal dated 08.10.2021. FAA's order dated 16.11.2021, upheld the reply of CPIO.
CIC/CBECE/A/2021/605591 Information sought:
The Appellant filed an RTI application dated 06.09.2021 seeking the following information:
1. On 17.10.2019, the Commissioner, Customs Lucknow directed vide What's app message directing therein to the erstwhile Assistant Commissioner, Customs Varanasi to facilitate VVIP treatment and give free passage without checking the passengers coming aboard by Malindo Airways on dated 17.10.2019 by forwarding a Whatsapp message mentioning therein the list of Passengers which was forwarded to him by Sri Rajiv Ranjan, ADG, Chennai.
2. Whether any baggage duty was charged from the passengers mentioned in the Whatsapp message. If it is so, name of the passengers from whom amount of baggage duty was charged. The receipt, No and Name of the Commodity may please be provided.
3. How many times such type of direction was issued to erstwhile Assistant Commissioner, Customs Varanasi by the Commissioner, Customs Lucknow 3 during 01.01.2019 to 19.12.2019 to facilitate the passengers giving the VVIP treatment, free passage without checking at LBSI Airport, Varanasi . The details thereof may please be provided.
4. No of times the directions was issued to supply specific goods to the person including departmental officers and non-departmental person during 01.01.2019 to 19.12.2019 by the Commissioner , Customs, Lucknow by holding the authority of Commissionerate , Customs Lucknow.
5. Direction for certain facility like free accommodation in Hotel, providing free vehicles and other facility to the guest of the erstwhile Commissioner, Customs, and Lucknow was given to erstwhile Assistant Commissioner, Customs Varanasi.
The details thereof the applicant is ready to pay any charges applicable for providing of the above said information /documents if it is show the amount payable may please be communicated.
The CPIO furnished a reply to the appellant on 09.12.2021 stating as under:
"The information sought by you has already been provided to you vide this office letter dated 10.09.2021 in reply to your earlier RTI application bearing registration No. CBICP/R/T/21/00019 dated 24.08.2021."
Being dissatisfied, the appellant filed a First Appeal dated 21.12.2021. FAA's order dated 14.01.2022, upheld the reply of CPIO.
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant set of Second Appeal (s).
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through video-conference.
Respondent: Chanchal Kumar Tiwari, Joint Commissioner & CPIO present through audio-conference.
The Commission remarked at the outset that the instant Appeals of the Appellant have been heard together simultaneously along with his six more Second Appeals of similar nature wherein he narrated the factual background regarding issuance of a Show Cause Notice dtd.17.06.2020 by the Additional Director, Zonal Unit Lucknow wherein the appellant himself was arrayed as one of the noticee no. 17 4 by invoking Section 12 of the Customs Act, 1962 for proposing penalty under Section 136 of the Customs Act, 1962 which attracts"punishable with imprisonment for a term which extend to 2 (three years) or with fine or with both. He further apprised the Bench that his case is sub-judice before the CBI and also with the Economic Offence Wing. Such circumstances led him to the filing of multiple RTI Applications seeking information in order to corroborate evidence in support of his defence. As regards his submission pertaining to instant Appeals, the Appellant expressed his dissatisfaction with the fact that desired information more particularly the enclosures have not been provided to him till date, a reference of which has been given in the CPIO's reply.
It was further remarked by the Commission that the CPIO did not turn up in the NIC venue for hearing despite receipt of hearing notice (as per postal tracking record) on 09.01.2023. Therefore, considering the essence of natural justice; efforts were made by the Registry of this bench to trace and locate the contact details of the CPIO and upon contacting the CPIO telephonically, he at the outset denied having received the hearing notice but subsequently, he tendered his apology before the bench explaining that his concerned officer did not intimate him about the factum of such cases hearing with the Commission. Later, the CPIO sought time to gather the records of these files in order to put forth his submission before the bench. Post lunch, the CPIO was reconnected through audio-conference whereby he reiterated the averred reply and further agreed to abide by the directions of the Commission.
Decision:
The Commission upon a perusal of records and after hearing submission of both the parties during hearing observes that the Appellant restricted his claim for information to be non-receipt of enclosures with the reply of CPIO as mentioned therein. In response to it, the CPIO agreed to resend a copy of the same to the Appellant.
Here, after scrutinizing the contents of RTI Applications, the Commission also cannot lose sight of the fact that the information sought by the Appellant including the copy of statement of averred third party and other ancillary records contains the elements of their personal information which is hit by Section 8(1)(j) of RTI Act. The same can be garnered from a bare perusal of the text of Section 8(1)(j) of the RTI Act as under:
"8. Exemption from disclosure of information.--
5(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, xxxx
(j) information which relates to personal information 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 Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information;.."
Here, attention of the Appellant is also drawn towards a judgment of the Hon'ble Supreme Court of India in the matter of Central Public Information Officer, Supreme Court of India Vs. Subhash Chandra Agarwal in Civil Appeal No. 10044 of 2010 with Civil Appeal No. 10045 of 2010 and Civil Appeal No. 2683 of 2010 wherein the import of "personal information" envisaged under Section 8(1)(j) of RTI Act has been exemplified in the context of earlier ratios laid down by the same Court in the matter(s) of Canara Bank Vs. C.S. Shyam in Civil Appeal No.22 of 2009; Girish Ramchandra Deshpande vs. Central Information Commissioner & Ors., (2013) 1 SCC 212 and R.K. Jain vs. Union of India & Anr., (2013) 14 SCC
794.The following was thus held:
"59. Reading of the aforesaid judicial precedents, in our opinion, would indicate that personal records, including name, address, physical, mental and psychological status, marks obtained, grades and answer sheets, are all treated as personal information. Similarly, professional records, including qualification, performance, evaluation reports, ACRs, disciplinary proceedings, etc. are all personal information. Medical records, treatment, choice of medicine, list of hospitals and doctors visited, findings recorded, including that of the family members, information relating to assets, liabilities, income tax returns, details of investments, lending and borrowing, etc. are personal information. Such personal information is entitled to protection from unwarranted invasion of privacy and conditional access is available when stipulation of larger public interest is satisfied. This list is indicative and not exhaustive..."
Nonetheless, to allay the apprehension of the Appellant and in furtherance of hearing proceedings, the CPIO is directed to resend a copy of his reply along with relevant enclosures, in response to both the impugned RTI Applications, free of 6 cost to the Appellant. The said direction should be complied by the CPIO within 7 days from the date of receipt of this order under due intimation to the Commission.
Notwithstanding the aforesaid, the Commission adversely views the casual conduct of the CPIO (I/c.) in not bothering to appear before the bench and seeking time in the matter at the eleventh hour. This only shows the sheer disregard of the CPIO to the proceeding of the Commission for which he/she is cautioned to exercise due diligence, failing which strict view will be taken for such recurrent lapses in future.
The appeal is disposed of accordingly.
Saroj Punhani (सरोज पुनहािन) हािन) Information Commissioner (सूचना आयु ) Authenticated true copy (अिभ मािणत स#यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 7