Central Information Commission
Amresh Chandra Mathur vs Chief Commissioner Of Customs, Chennai ... on 7 September, 2021
Author: Neeraj Kumar Gupta
Bench: Neeraj Kumar Gupta
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग,मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
ि तीय अपील सं या/Second Appeal No. CIC/CUSCZ/A/2020/600848
Mr. Amresh Chandra Mathur ... अपीलकता/Appellant
VERSUS
बनाम
CPIO ... ितवादी /Respondent
O/o. the Commissioner of Customs,
Chennai-Import, Custom House, 60
Rajaji Salai, Chennai-600001
Relevant dates emerging from the appeal:-
RTI : 08-09-2019 FA : 09-10-2019 SA : 13-01-2020
CPIO : 18-09-2019 FAO : 11-11-2019 Hearing : 31-08-2021
ORDER
1. The appellant filed an application under the Right to Information Act, 2005 (RTI Act) before the Central Public Information Officer (CPIO) O/o. The Commissioner of Customs (Chennai-Import), Chennai. The appellant seeking information on three points, pertaining to drug Vigamox (Generic Name Moxifloxacin Hydrochloride eye drops 0.5%) imported by M/s Alcon Laboratories (India) Pvt. Ltd, Bangalore through Chennai Seaport during the year in year 2011, which is as under:-
"1. Clear certified copy of documents.
a. Provided by Drug controller of India (CDSCO port officials) b. endorsed by Drug controller of India (CDSCO port officials) that authorized custom officials of Chennai seaport to clear the consignment to be taken out of the sea port by the importer.
2. If any of the above requested information has been destroyed by Chennai seaport customs office them please provide details of information destroyed and copy of the procedure/office order based on which information has been destroyed.
3. If any of the requested information is not being provided kindly provide appropriate reason for not providing the requested information."Page 1 of 4
2. As the CPIO had not provided the requested information under section 8(1)(j) of the RTI Act, 2005, the appellant filed the first appeal dated 09-10- 2019 requesting that the information should be provided to him. The first appellate authority vide its order dated 11-11-2019, directed the CPIO, Commissionerate-Import to furnish the information within 15 days. In compliance of which the CPIO, Chennai import vide its letter dated 22.11.2019 informed the appellant that no details pertaining to documents provided by the Drug Controller of India could be retrieved from this office. Thereafter the CPIO, Chennai import vide letter dated 09.12.2019 informed the appellant that the Bills as sought in the RTI application were destroyed during the floods of 2015. Thereafter the appellant filed a second appeal u/Section 19(3) of the RTI Act before the Commission on the ground that information has not been provided to him and requested the Commission to direct the respondent to provide complete and correct information.
Hearing:
3. The appellant attended the hearing through audio-call. The respondent remained absent during the hearing. However keeping in view the ongoing COVID-19 pandemic situation the matter is being adjudicated based on the replies furnished by the CPIO/ FAA and the same is being considered as written submission by the respondent.
4. The appellant submitted his written submissions dated NIL and the same has been taken on record.
5. The appellant submitted that complete and correct information has not been provided to him by the respondent on his RTI application dated 08.09.2019. He further submitted that initially the respondent has denied the information under Section. 8(1)(j) of the RTI Act, 2005, without application of mind and thereafter denied the information that it does not exist.
Decision:
6. The Commission, after hearing the submissions of the appellant and after perusal of records, observes that the appellant has sought information regarding the documents provided and endorsed by the Drug Controller of India. The CPIO has denied the information under Section 8(1)(j) of the Act while the FAA directed the CPIO, Commissionerate-Import to furnish the information. In compliance of which the CPIO, Chennai import vide its letter dated 22.11.2019 informed the appellant that no such details pertaining to documents provided by the Drug Controller of India could be retrieved from this office. Thereafter the CPIO, Chennai import vide letter dated 09.12.2019 informed the appellant that Page 2 of 4 the Bills as sought in the RTI application were destroyed during the floods of 2015. The Commission finds that the orders passed by the respondent while clearing a consignment have factored the reports/ opinions given by the Drug Controller of India, which are being held in a fiduciary capacity by the respondent and information held in fiduciary capacity thus cannot be disclosed under the Act. The Commission, therefore, finds that the present matter involves the information of commercial confidence and the same cannot be disclosed under the RTI Act under Section 8(1)(d), (e) and (j) of the RTI Act. In this context, with regard to non-disclosure of information under Section 8(1)(e) of the RTI Act, 2005, 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 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".
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 Page 3 of 4 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."
7. In light of the above-mentioned matrix, no further intervention of the Commission is required in the matter. However a warning is being issued to the respondent to remain more vigilant and cautious in future while dealing with the provisions of the RTI Act, 2005
8. With the above observations, the appeal is disposed of.
9. Copy of the decision be provided free of cost to the parties.
नीरज कु मार गु ा) Neeraj Kumar Gupta (नीरज ा सूचना आयु ) Information Commissioner (सू दनांक / Date : 31-08-2021 Authenticated true copy (अिभ मािणत स यािपत ित) S. C. Sharma (एस. सी. शमा), Dy. Registrar (उप-पंजीयक), (011-26105682) Addresses of the parties:
1. CPIO O/o. the Commissioner of Customs, Chennai-Import, Custom House, 60 Rajaji Salai, Chennai-600001
2. Mr. Amresh Chandra Mathur Page 4 of 4