Central Information Commission
Amresh Chandra Mathur vs Chief Commissioner Of Customs, ... 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/CCUM3/A/2020/693848
Mr. Amresh Chandra Mathur ... अपीलकता/Appellant
VERSUS
बनाम
CPIO ... ितवादी /Respondent
O/o. the Commissioner of Customs
(Import), Air Cargo Complex, Sahar
Andheri East, Mumbai-400099
Relevant dates emerging from the appeal:-
RTI : 22-07-2020 FA : 12-09-2020 SA : 24-05-2020
CPIO : 25-08-2020 FAO : 09-10-2020 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 (Import), Mumbai. The appellant seeking information on two points which is as under:-
"1. Name of the regulatory document(s) needed by Customs Officer for clearing a consignment of drug packs that are imported as ready for sale that ensures/assures Custom Authorities that imported drug is not violating provisions of Rule 30 B of Drugs and Cosmetics Act. Rule 30 B is reproduced below for ready reference 30B. Prohibition of import of certain drugs. No drug, the manufacture, sale or distribution of which is prohibited in the country of origin, shall be imported under the same name or under any other name except for the purpose of examination, test or analysis.
2. In respect of drug Vigamox (Generic Name Moxifloxacin Ophthalmic Solution IP 0.5% w/v) manufactured by Alcon Laboratories INC, 6201, Southfreeway, Fort Worth texas, 76134-2099,USA imported and marketed in India by Novars Healthcare Pvt. Ltd, Gala No 1-A &2-A, Page 1 of 5 Building No 28, Arihant Compound , Kopar, Purna, Tal-Bhiwandi, Dist. Thane-421302, India ,kindly provide CPIO certified copy of regulatory documents named in para 1 when the drug was imported for the 1st me through Mumbai Customs and was cleared by Mumbai Customs for import and the drug was handed over to the importer of the drug".
2. As the CPIO had denied the requested information under section 8 (1)(d),
(e) & (j) of RTI Act, 2005, the appellant filed the first appeal dated 12-09-2020 requesting that the information should be provided to him. The first appellate authority vide its order dated 09-10-2020, upheld the reply furnished by the CPIO and disposed of his first appeal. 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 video-call. The respondent, Shri Harish Hinduja, Asst Commissioner/ CPIO attended the hearing through audio-call.
4. The appellant as well as the respondent submitted their written submissions dated NIL and 11.08.2021 and the same has been taken on record. The written submissions of the third party dated 24.08.2021 is also 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 22.07.2020. The appellant also contested that the answering CPIO at the time of replying his RTI application should have appeared before the Commission to defend the case rather than the present nominated CPIO. He further submitted that no formal intimation seeking the information from the third party has been given to him before and the denial of the third party is presented only at the stage of second appeal before the Commission thereby raising question upon the integrity of the public authority in dealing with the RTI applications. The appellant also stated that the customs department has sole responsibility to clear the consignments based on various recommendation or advice as per the regulatory requirement. As such the information sought is not barred under Section 8 (1)(d), (e) & (j) of the Act. Referring to Sec. 30B of Drugs and Cosmetics Act, the appellant further submitted that clearance of such consignments is done in pure violation of the said law and the administrative conduct of the respondent is not correct.
Page 2 of 56. The respondent submitted that vide their letter dated 25.08.2020, they have denied the information to the appellant under Section 8(1)(d), (e) & (j) of the RTI Act. He further submitted that the reply was given as per the procedure and in accordance with the provisions of the RTI Act, 2005. The respondent further submitted that the Drug Controller of India is an independent public authority and their reports/ opinions are held in fiduciary capacity. Further the reports of the Drug Controller of India are related to various consignments and has various details related to the consignment as well as the commercial information mentioned therein and hence the information sought has been denied to the appellant. Further the information sought also pertains to the third party. As such a reply was also furnished by the third party vide letter dated 24.08.2021.
Decision:
7. The Commission, after hearing the submissions of both the parties and after perusal of records, observes that the public authority is represented by the CPIO who is entrusted with the responsibility of specific department or subject matter. The answering CPIO at the time of replying the RTI application is required to submit his response only in cases where responsibility is to be fixed for invoking penalties under Section. 20 of the Act. Further the public authority's representative is not disowning the reply given earlier nor is denying that the person who replied was not a CPIO. Therefore, nominated CPIO is permitted to appear before the Commission. Nomination of the CPIO is an internal administrative matter of the public authority, who is the custodian of the information. Therefore, the Commission is adjudicating the disclosure of information on merits rather deciding it merely on technical grounds and investigate into the issue of the nomination of the CPIO.
8. Further the Commission observes that the appellant has sought information regarding the name of the regulatory document(s) needed by Customs Officer for clearing a consignment of drug packs that are imported with special reference to drug Vigamox. The CPIO has denied the information under Section 8(1)(d), (e) & (j) of the Act. The Commission finds that the orders passed by the respondent while clearing a consignment are factored by the reports/ opinions given by the Drug Controller of India, which is being held in a fiduciary capacity by the respondent and others 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 8(1)(j) of the RTI Act. The Commission also factors with the Page 3 of 5 written submission given by the third party. 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 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."
9. In light of the above-mentioned matrix, no further intervention of the Commission is required in the matter. If the appellant has any grievance that the consignments are cleared in the violation of law or their own internal rules, then the same cannot be addressed through the RTI and requires administrative Page 4 of 5 scrutiny by higher authorities of the public authority. Hence, for the redressal of his grievance, if any, the appellant is advised to approach an appropriate forum.
10. With the above observations, the appeal is disposed of.
11. 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 (Import), Air Cargo Complex, Sahar Andheri East, Mumbai-400099
2. Mr. Amresh Chandra Mathur Page 5 of 5