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 ा/Second Appeal Nos. CIC/CUSCZ/A/2019/657148
Mr. Amresh Chandra Mathur ... अपीलकता/Appellant
VERSUS
बनाम
CPIO ... ितवादी /Respondent
O/o. the Pr. Commissioner of
Customs (Chennai-VII), New
Custom House, Meenambakkam,
Chennai-600027
Relevant dates emerging from the appeals:-
RTI : 08-09-2019 FA : 09-10-2019 SA : 20-11-2019
CPIO : 25-09-2019 FAO : 24-10-2019 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 Pr. Commissioner of Customs (Chennai-VII), 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 Airport during the year in year 2005-06, 2006-07 and 2007-08, which is as under:-
"1. Clear certified copy of documents a. provided by Drug controller of India officials (CDSCO port officials) b. endorsed by Drug controller of India officials (CDSCO port officials) that authorized custom officials of Chennai Airport to clear the Consignment to be taken out of the Airport by the importer.
2. If any of the above requested information has been destroyed by Chennai Airport customs office then please provide details of information destroyed and copy of the procedure / office order based on which information has been destroyed.Page 1 of 4
3. If any of the requested information is not being provided kindly provide appropriate reason for not providing the requested information".
2. As the CPIO had not provided the requested information under section 8(1)(d) and 8(1)(j) of 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 24-10-2019, informed the appellant that the information sought pertains to a period of more than 12 years which is untraceable and directed the appellant to approach CDSCO authorities as the information pertains to them. 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 Alagesam, Asst Commissioner/ CPIO, Customs, Chennai VII, attended the hearing through video-call.
4. The appellant as well as the respondent submitted their written submissions dated NIL and 28.08.2021 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)(d) & (j) of the RTI Act, 2005, without application of mind and thereafter denied the information that it does not pertains to them. The appellant also contested that the answering CPIO should have appeared before the Commission to defend the case rather than the present CPIO. He also pointed out that the nominated CPIO as per the records available on the website of the public authority are different from the answering CPIO and hence the pleaded that appropriate action be taken against them.
6. The respondent submitted that vide their letter dated 25.09.2019, they have denied the information to the appellant under Section 8(1)(d) & (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.
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 Page 2 of 4 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 documents provided and endorsed by the Drug Controller of India. The CPIO has denied the information under Section 8(1)(d) & (j) of the Act while the FAA informed that the information sought pertains to a period of more than 12 years which is untraceable. 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:
Page 3 of 414. "....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.
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 Pr. Commissioner of Customs
(Chennai-VII), New Custom House,
Meenambakkam, Chennai-600027
2. Mr. Amresh Chandra Mathur
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