Central Information Commission
Sandeep Kumar Dikshit vs Directorate Of Revenue Intelligence on 20 June, 2024
केन्द्रीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ मागग, मुननरका
Baba Gangnath Marg, Munirka
नई निल्ली, New Delhi - 110067
File Nos. : CIC/DRINT/A/2023/619130
CIC/DRINT/A/2023/632392
Sandeep Kumar Dikshit .....अपीलकर्ाग /Appellant
VERSUS
बनाम
CPIO,
Office of the Additional
Director General, DRI,
Kolkata, Harrington Mansion,
Suit No. 16 & 17, 8, Ho Chi
Minh Sarani, Kolkata - 700071 ....प्रनर्वािीगण /Respondent
Date of Hearing : 10.06.2024
Date of Decision : 19.06.2024
INFORMATION COMMISSIONER : Vinod Kumar Tiwari
The above-mentioned second appeals are clubbed together as the subject-
matter is similar in nature and hence are being disposed of through a
common order.
Relevant facts emerging from appeal:
RTI application filed on : 28.12.2022, 23.04.2023
CPIO replied on : 30.01.2023, 30.05.2023
First appeal filed on : 28.02.2023, 01.06.2023
First Appellate Authority's order : 27.03.2023, 30.06.2023
2nd Appeal/Complaint dated : 16.04.2023, 04.07.2023
CIC/DRINT/A/2023/619130
Information sought:
The Appellant filed an RTI application dated 28.12.2022 seeking the following information:Page 1 of 19
"Based on the investigation conducted by the Directorate of Revenue Intelligence, Kolkata Zonal Unit [In short, DRI] in the matter of issuance of Supplementary SCN, dated 18.05.2017, Directorate General of Vigilance, East Zonal Unit, Kolkata [DGOV, in short] had made complaints to Central Bureau of Investigation, Kolkata unit citing investigation by DRI Kolkata and two F.I.R.s vide F.I.R. No. 34/2017 and 35/2017 were registered on 23.12.2017 interalia under the provisions of Prevention of Corruption Act, 1988. The applicant herein was arrested by CBI in these two cases on 02.11.2020 and released on bail later on in December, 2020. Fundamental right of the applicant was thus infringed upon. As per the said Supplementary SCN, dated 18.05.2017, a DVD [make Sony] was allegedly seized on 29.07.2016 under staged Panchanama Proceedings at the Office premises of M/s Spack Enterprises Pvt. Ltd. and relied upon. Also, DRI itself had prepared copies of said DVD on 18.01.2017 in their own office at Kolkata and projected them as forensic copy of the seized DVD, and, provided the same to the noticees of said Supplementary SCN, dated 18.05.2017. The forensic copy of the allegedly seized DVD [make- sony] relied upon has serious infirmities regarding its creation time and date as well as contents i.e. files / folders contained in master folder "DOC" and does not match with Annexure to the seizure Panchanama dated 29.07.2016 considering the path as mentioned in the said panchanama, and, this fact has already been brought in knowledge of the DRI Authorities and other Authorities of the connected consequential vigilance and CBI proceedings. The DVD properties shows that it was created on 29.07.2016 at 02:30:26 a.m. The Annexure to the Panchanama shows that the screen shot of the master folder was taken at 01:11 a.m. While the alleged search and seizure was shown to be effected during 03:20 p.m. to 08:30 p.m. on 29.07.2016 and during that period, the abovementioned screenshot was taken by DRI Officers and annexed as Annexure to the said staged Panchanama. The mode and manner of preparing a copy of the said DVD [make-Sony] on 29.07.2016 by DRI Kolkata remains unexplained by the Panchas. Also, it is unexplained whether the said copy claimed to be prepared by DRI, Kolkata on 29.07.2016 was write-proof using appropriate forensic tools or not. Since the matter involves corruption charges, DRI is not exempted under Section 24 of the RTI Act.
In this regard, please provide the following information-
(i) Please provide the information whether there is any standard operating procedure (SOP) regarding handling, storage and proper custody of digital evidence at DRI Formation or not. If the answer is yes, whether the same was followed in toto in case of the digital evidence i.e. the Sony make DVD allegedly seized on 29.07.2016 by DRI, Kolkata at the office premises of M/s Spack Enterprises Pvt. Ltd. or not.Page 2 of 19
(ii) Please provide the information regarding the chain of custody of the alleged DVD [make- Sony] seized on 29.07.2016 for the time period of 29.07.2016 to till date.
(iii) Please provide information whether the alleged seized DVD (Sony make) stated to be seized on 29.07.2016 is still in possession of DRI, Kolkata or not.
(iv) Please provide information whether any register is maintained regarding the chain of custody of digital evidence at DRI, Kolkata or not. If the answer is yes, please provide authenticated copy of the said register maintaining the records/data of chain of custody of the alleged seized Sony make DVD stated supra.
(v) Please provide information that out of the copies claimed to be prepared by DRI, Kolkata on 18.01.2017 and projected as forensic copy of the alleged seized Sony make DVD, how many are remaining there in the custody of DRI, Kolkata as on date.
(vi) The alleged forensic copy of the alleged seized Sony make DVD was given to all noticees of the Supplementary SCN, dated 18.05.2017. Please provide information that how many copies of the alleged forensic copy prepared on 18.01.2017 was given to the other stakeholders / government organizations / departments. In this regard, please provide the communication details and authentic copy of the letter(s) issued regarding such supply of the said forensic copies of the "DVD" mentioned supra.
(vii) Please provide the copy of the note-sheet / file noting of concern DRI file dealing with the creation of alleged forensic copy on 18.01.2017.
(viii) Please provide the copy of the note-sheet/ file noting of concern DRI file dealing with supply of the alleged forensic copy of the DVD to other stakeholders / government organizations / departments.
(ix) Please provide information that whether DRI Officers had ever noticed / taken note of mismatching in the number of files folders as mentioned as 45 in the screen shot of the alleged seized DVD annexed as Annexure to the Seizure Panchanama dated 29.07.2016 and in the master folder "DOC" of alleged forensic copy considering the same path or not. If the answer is yes, please provide the copy of the respective notesheet / file noting dealing with such observation. It is pertinent to mention that there are 44 files/folders in the master folder "DOC" of the forensic copy prepared by DRI on 18.01.2017 considering the path as mentioned in the alleged seizure Panchanama dated 29.07.2016.
(x) Please provide information whether the said mismatching &/or infirmities involving mismatching of files / folders and creation time and date, as Page 3 of 19 mentioned supra, regarding the digital evidence (the referred Sony make DVD) was intimated to different statutory government authorities with whom related correspondences were made using the official position by the officers of DRI, Kolkata or not. If the answer is yes, please provide the copy of respective note-
sheet / file noting and respective correspondence letter.
(xi) Shri T. Sarkar, S.I.O.; Shri Asim Sarkar, S.I.O. and Shri Shiladitya Maitra, S.I.O., all of DRI, Kolkata had verified the Shipping Bills as mentioned in the Supplementary SCN dated 18.05.2017 and relied upon in different connected proceedings till date as 'certified to be true / authenticated'. Please provide inspection of originals of all Shipping Bills and related documents [containing invoices, packing lists, ARE-1s] relied upon in the Supplementary SCN dated 18.05.2017 and connected proceeding including the proceedings under Rule 14 of the CCS(CCA) Rules, 1965. Please also grant me permission to draw joint inspection report regarding the originality of such shipping bills and related documents [containing invoices, packing lists, ARE-1s].
(xii) Please provide the opportunity of inspection of the documents, in original, copies of which are sought through this RTI Application on the time and the date, as may be fixed by the CPIO in this regard. Please also grant me permission to draw joint inspection report regarding the originality of such documents."
The CPIO furnished a reply to the Appellant on 30.01.2023 stating as under:
"An earlier application dated 05.11.2019 made by you was rejected under Section 24 of the RTI Act, 2005 by the CPIO, DRI, KZU vide order dated 26.11.2019.
Thereafter, your first appeal dated 29.11.2019 to the First Appellate Authority in DRI, KZU was disposed off by the Authority vide order dated 31.12.2019 by stating that " rather the applicant is trying to abuse the Act by camouflaging the information sought under the exclusion clause provided in the case of allegation of corruption and human rights violation in the Act to obtain information connected with ongoing investigations and prosecutions and/or source information that has triggered the investigation which may affect the proceedings or which compromises the position of the sources of information."
After this a second appeal was filed by you with the Central Information Commission. The Commission after hearing the submissions of the applicant and the respondent (DRI, KZU) and after perusal of records, gave the following decision in favour of the CPIO, DRI, KZU vide order dated 28.09.2021". [The Commission] observes that the respondent has categorically informed the complainant that as per the serial no. 3 of the second schedule to the Right to Information Act, 2005, the offices of Directorate of Revenue Intelligence is Page 4 of 19 exempted from providing information under the RTI Act, 2005. Merely the fact that the appellant has been implicated in corruption charges does not make the exempted organization liable to furnish the information pertaining to pending investigation conducted by the department. The Commission furthermore observes that this exemption is not available only in cases related to corruption and human rights violation within the organization. In all the matters related to investigation being done by the agency it has been exempted from disclosure under the provisions of the RTI Act."
In light of the above decisions of the CPIO, DRI, KZU, The First Appellate Authority, DRI, KZU and the Central Information Commission and after examining your application on merits, I hold that the Directorate of Revenue Intelligence (DRI) is specifically exempted from providing information in terms of Section 24 of the RTI Act, 2005 under the Second Schedule and accordingly your application dated 28.12.2022 which was received in this office on 02.01.2023 is disposed off."
Being dissatisfied, the appellant filed a First Appeal dated 28.02.2023. The FAA vide its order dated 27.03.2023, upheld the reply of CPIO.
CIC/DRINT/A/2023/632392 Information sought:
The Appellant filed an RTI application dated 23.04.2023 seeking the following information:
"5.1. The applicant herein has received Charge Memorandum dated 14.02.2022 issued under C. No. II(8)01/Vig./Haldia/2018/Pt./37(c) dated 14.02.2022 issued by the Commissioner of CGST & C. Ex., Haldia CGST & C. Ex. Commissionerate when he was posted under Haldia CGST & CX Commissionerate. Currently, the applicant is posted at Taratala-II Division under Kolkata South CGST & CX Commissionerate. Reply to the said Charge Memorandum, dated 14.02.2022 was given on 25.02.2022 and interalia, certain distinct documents / details with relevancy were sought, but not supplied till date. The applicant craves leave to submit the copy of the letter dated 25.02.2022, if asked for.
5.2.It is pertinent to mention that the said charge memorandum is based on a purported investigation conducted by the Directorate of Revenue Intelligence, Kolkata Zonal Unit [In short, DRI] in the matter of issuance of Supplementary SCN, dated 18.05.2017. Also, Directorate General of Vigilance, East Zonal Unit, Kolkata [DGoV, in short] lodged complaints to Central Bureau of Investigation, Kolkata unit citing the purported investigation outcomes, conducted by DRI Page 5 of 19 Kolkata and consequently, two F.I.R.s vide F.I.R. No. 34/2017 and 35/2017 were registered on 23.12.2017 interalia under the provisions of Prevention of Corruption Act, 1988. It appears that in both the cases, charge-sheet have been filed in the court of law. As per records available in 'e-Courts' app run by NIC, vides Charge-sheet filed in the matter of FIR No. 34/2017, the applicant herein stands exonerated.
5.3. As per the said Supplementary SCN, dated 18.05.2017, a DVD [make Sony] was allegedly seized by DRI, Kolkata on 29.07.2016, apparently under a staged Panchanama Proceedings dated: 29.07.2016, held at the Office premises of M/s Spak Enterprises Pvt. Ltd. Also, as per claim of DRI, KZU, copies of said DVD were prepared on 18.01.2017 in their own office at Kolkata and, provided the same to the noticees of said Supplementary SCN, dated 18.05.2017. The said forensic copy is noted to be suffering from serious infirmities regarding its creation time and date as well as its alleged contents, specially the files / folders contained in master folder "DOC", which does not match with the Annexure to the seizure Panchanama dated 29.07.2016, vis-a-vis the path as mentioned therein. This irrefutable apparent fact has already brought in knowledge of the DRI, Kolkata Authorities as well as other Authorities concerned with connected consequential proceedings. In spite of such information so provided, none of the allegations originated on account of this DVD were withdrawn by DRI, KZU, or other authorities till date.
5.4. The creation properties of the DVD brought on record shows that it was created on 29.07.2016 at 02:30:26 a.m. The Annexure to the Panchanama dated 29.07.2016 shows that the screen shot of the master folder "DOC" was taken at 01:11 a.m. on 29.07.2016, the alleged search and seizure was shown to be effected during 03:20 p.m. to 08:30 p.m. on 29.07.2016 and, during that period, the abovementioned screenshot was admittedly taken by DRI Officers and annexed as Annexure to the said staged Panchanama dated 29.07.2016. Also, DRI Officers made a copy of the said DVD on same date at the premises of M/s Spak Enterprise as per the said Panchnama. The mode and manner of preparing the said copy of the alleged DVD [make-Sony] on 29.07.2016 by DRI Kolkata, remains unexplained by the concern Panchas. Also, it is unexplained whether the said alleged copy claimed to be prepared by DRI, Kolkata on 29.07.2016 was write-proof / read only or not. Also, as per said Annexure to the Panchanama dated 29.07.2016, there were 45 files/folders in the master folder "DOC".
5.5. Further, as per the allegations, DRI, Kolkata itself prepared a forensic copy of said DVD on 18.01.2017 and relied upon the same in the Supplementary SCN proceeding dated 18.05.2017. The alleged forensic copy of the alleged seized Page 6 of 19 Sony make DVD was given to all noticees of the Supplementary SCN, dated 18.05.2017. As per the alleged forensic copy of the DVD relied upon and supplied, there is 44 files/folders in the master folder "DOC", but, as per Annexure to the said panchanama dated: 29.07.2016, number of files/folders contained in the allegedly seized DVD was 45, and, thus, manipulation / concoction / doctoring in the said digital evidence by DRI, Kolkata cannot be denied, which is a complex form of institutional corruption as well as misuse of statutory power/authority in opaque way. Also, it appears that DRI, Kolkata intentionally hide this irrefutable infirmity, from all stakeholders including statutory authorities, till date.
5.6. The institutional corruption on part of DRI, Kolkata is also visible from the forgery aspects of the DVD prepared under Panchanama dated 18.01.2017 and brought on record in Supplementary SCN dated 18.05.2017, which are summarized for your kind consideration as follows-
(i) Seizure of DVD and Infirmities thereon: On 29.07.2016, in course of Search and seizure proceedings conducted at the office premises on M/s Spack Enterprises Pvt. Ltd, Cock Burn Lane, Kolkata, the DRI, Kolkata authorities recovered a DVD, which, as per Annexure to the Panchanama dated 29.07.2016, was having 45 files/folders. The said Annexure was the screen shot of the master folder "DOC" of said DVD. The said Annexure i.e. the screen shot of the master folder "DOC", was taken at the time 01:11 AM, 29 Jul,16. However, the said alleged search and seizure proceeding was conducted by DRI, KZU during the time 15.00 hrs to 20.30 hrs on 29.07.2016. The time stamp of "01:11 Am, 29 Jul 16" on the Annexure to the Panchanama dated 29.07.2016 itself shows that said Annexure as well as the said DVD was already in hands of the DRI team and thus, the DVD shown to be recovered appears to be planted evidence which is manifestly institutional corruption on part of DRI, Kolkata.
(ii) Preparation of Forensic copy on 18.01.2017 and infirmities thereon: DRI, Kolkata has prepared themselves alleged forensic copy of the DVD on 18.01.2017 under Panchanama dated 18.01.2017. DRI, Kolkata was not authorised at relevant point of time under the law to carry out such forensic operations in terms of Section 79A of the Information Technology Act, 2000. The said DVD prepared on 18.01.2017 have 44 files/folders in the master folder "DOC" and said master folder "DOC" was created at 02:30:26 hrs on 29.07.2016. This DVD having 44 files/folders was brought on record in the said Supplementary SCN proceedings dated 18.05.2017. It is clear that the DVD seized on 29.07.2016 which was having 45 files folders in master folder "DOC" was never brought on record, rather another DVD prepared at 02:30:26 hrs on 29.07.2016 was brought on record. It appears that DRI has planted digital evidence at the office premises of M/s Spak Enterprises, and, further, used another forged digital evidence as genuine one in all proceedings initiated till Page 7 of 19 date, to illegally & falsely implicate others which is a form of institutional corruption, and against the mandates of the RTI Act, 2005.
(iii) Gist of infirmities in the DVD brought on record and its reliability: The gist of irrefutable details of the infirmities found in the DVD seized on 29.07.2016 from the office premises of M/s Spak Enterprises Pvt. Ltd. and the other one prepared on 18.01.2017 at DRI Office that was brought on record in the proceedings under the Customs Act' 1962, are as follows which prove that both the DVDs are distinct and separate to each other-
(a) Difference in the number of the Files/Folders found in the master Folder "DOC":-The DVD seized on 29.07.2016 has 45 filed/folders in master folder "DOC". The DVD forged on 29.07.2016 by DRI, Kolkata, as stated supra and whose forensic copy was prepared by DRI on 18.01.2017, has only 44 files/folders in the master folder "DOC". It clear that both DVDs are different to each other and the actual DVD seized on 29.07.2016 which consists of 45 files/folders in master folder "DOC" has never brought on record in any proceedings with ulterior motives and malafide intention.
(b) The screenshot of the DVD actually seized on 29.07.2016 was taken at 01:11 AM on same date whereas, the alleged DVD brought on record vide Panchanama dated 18.01.2017, as mentioned supra, was created/modified on 02:30:26 hrs on 29.07.2017. It is clear that after taking the screen shot, either the said DVD was forged or another DVD was brought on record. It further fortified the fact that both such DVDs cannot be same and identical considering the creation/modification aspects after taking its screen shot mentioned supra.
(c) How the screen shot taken at 01:11 AM on 29.07.2016 become the part of the search and seizure proceedings conducted during 15:00 hrs to 20:30 hours on 29.07.2016, is nowhere explained by DRI, Kolkata in said Supplementary SCN or Addendum thereto, which is another form of institutional corruption with malafide intension, which is against the mandates of the RTI Act, 2005, and, hence, desired information shall be supplied.
(d) The sub-folders contained in the master folder "DOC", including the sub- folders containing alleged voice clips and alleged soft copies of export documents in M.S. Word are created/modified at 02:30:26 hrs on 29.07.2016 but the creation / modification date and time of each such export document/voice clip found in said DVD are dated back. It is evident that the after taking the screen shot at 01:11 AM on 29.07.2016, either said DVD was modified with transfer of contents in target sub-folders or entire DVD is replaced/concocted/forged. Under the circumstances, the DVD brought on record is a forged piece of evidence, and, actual seized DVD was suppressed by the DRI Authorities in order to support their malafide narrative which is another form of institutional corruption and, thus, against the mandates of the RTI Act, 2005, and, hence, desired information shall be supplied.
Page 8 of 19(e) The alleged DVD supposedly authored by Shri Vikash Kumar which allegedly was found to be having the export documents. But the DVD brought on record have personal documents of Jyoti Biswas amongst others also. The two set of separate documents prepared by two separate persons at different time and date cannot be present in same DVD at a time considering the creation/modification aspects mentioned supra and hence, the said DVD is forged piece of evidence brought on record deliberately by the DRI Authorities in order to support their concocted narrative which is another form of institutional corruption, and, thus, it is against the mandates of the RTI Act, 2005, and, hence, desired information shall be supplied.
(f) No trail / chain of custody of the hardware involved in transfer of files/folders from micro SD card to said DVD was shown and brought on record by DRI Authorities till date.
(g) The creation/modification time and date of the DVD prepared by DRI on 18.01.2017 and provided to the applicant herein found as 02:30:26 hrs on 29.07.2016, is never explained by DRI, KZU. No expert opinion in this regard was obtained and brought on record till date in order to hide their institutional corruption, as mentioned supra, which is against the mandates of the RTI Act, 2005, and, hence, desired information shall be supplied.
(h) DRI, Kolkata has also claimed to prepare a copy of the DVD seized on 29.07.2019 on same date at same premises, the mode and method of same is nowhere explained in the panchanama dated 29.07.2016. Also, whether the said copy contained 44 or 45 files/folders in master folder "DOC", it is nowhere mentioned by DRI, Kolkata Authorities in said Supplementary SCN and Addendum thereto, which suggest deep conspiracy on part of DRI, Kolkata, which is a complex form of institutional corruption and against the mandates of the RTI Act, 2005, and, hence, desired information shall be supplied.
(i)Forensic examination of DVD matching with Annexure to Panchanama dated 29.07.2016 was deliberately not conducted by DRI, KZU to confirm the creation aspects in order to nullify the forgery aspects stated supra. Rather, Shri Manish Chandra, the then Additional Director, DRI, Kolkata forced the CFSL, Chandigarh Authorities to conduct the forensic examination of the 20 voice clips contained in sub-folders under master folder "DOC" in the DVD prepared on 18.01.2017 by insisting to treat said false / forged DVD as Original. The forensic reports of the voice clips found in the alleged forensic copy of the DVD prepared on 18.01.2017 cannot be said as the forensic report of the DVD seized on 29.07.2016 considering abovementioned mismatching and infirmities. Such malafide act on part of DRI, KZU is a matter of hatching of criminal conspiracy. None of the alleged said 20 voice clips are matching with any of the CDRs brought on record by the DRI, Kolkata authorities. Under the circumstances, scope of misuse of the telephone recording facilities available at DRI, Kolkata cannot be ruled out considering the abovementioned infirmities, and, if it is the Page 9 of 19 case, it's the highest form of illegal use of government facility corroborating institutional corruption on part of DRI, KZU, which is against the mandates of RTI Act. Copies of the Panchanama dated 29.07.2016 is annexed herein and marked as Annexure-B. Due to space crunch, the applicant craves leave to submit the copy of Panchanama dated 18.01.2017 as and when asked for.
(j)Extraneous considerations were applied by Shri Manish Chandra, the then Additional Director, DRI, Kolkata in his personal capacity on the CFSL, Chandigarh Authorities to conduct forensic examination of the alleged 20 voice clips found in the alleged DVD prepared on 18.01.2017 by saying that the DVD prepared vide Panchanama dated 18.01.2017 and sent for forensic examination may be treated as "ORIGINAL". A copy of any electronic record having abovementioned infirmities can never be treated as original. Also, CFSL, Chandigarh Authorities has acted in contradiction to their own S.O.P. for want of the documents as mentioned in their letter under F. No. CFSL(C)- 727/2017/PHY/243/2017/225 dated 12.04.2017 [copy enclosed] on instances of said Shri Chandra. It is pertinent to mentioned here that CFSL Chandigarh Authorities had returned all exhibits for want of originals alongwith other details, which were never fulfilled by DRI, Kolkata. As per the letter F. No. CFSL(C)-727/2017/PHY/243/2017/225 dated 12.04.2017, the said case was non-acceptable in the laboratory in absence of the following information / items, necessary for examination and CFSL, Chandigarh Authorities had returned the all exhibits to DRI, Kolkata.
(a) Original Recording media as well as recording device used,
(b) Call Detail Record (CDR) of relevant date and time,
(c) Person-wise transcripts of the conversations, None of the abovementioned conditions, except the (c) above was fulfilled by DRI Kolkata. In absence of matching CDRs, none of the voice clips can be considered as 'telephonic conversations', as alleged in said Supplementary SCN dated 18.05.2017. The applicant craves leave to produce all the communications made between DRI, Kolkata and CFSL, Chandigarh as and when asked for by the CPIO.
The forensic examination report of the DVD prepared on 18.01.2017 and relied upon in the Supplementary SCN proceedings was provided to each of the noticee. The DRI, Kolkata, vide letter under DRI F. No. DRI/KZU/CF/ENQ-58(INT-
45)/2016/7340 dated 05.04.2017 has asked the following amongst the others to CFSL, Chandigarh in respect of the said 20 voice clips only-
".....whether the audio recordings in the DVD are authentic............"
The CFSL, Chandigarh authorities has never reported said voice clips found in said forged DVD as authentic, though, the authenticity aspect was raised by the DRI, Kolkata Authorities to them. It is submitted that without authenticity, the scope of applicability of other aspects does not arise but the DRI, Kolkata Page 10 of 19 authorities have mentioned said DVD as authentic in different court affidavits under oath as well as under different quasi-judicial forums. Due to space crunch, the applicant craves leave to submit the copy of the correspondences mentioned herein, as and when asked for.
(k) In compliance to the order, dated 02.12.2022 of Hon'ble CIC in the 2nd Appeal No. CIC/MHOME/A/2021/635414, CFSL, Chandigarh replied against the question 7(ii) vide reply dated 13.12.2022. The said question was "Please provide the information regarding the number of files/folder available on the disc when we click once on the master folder "Doc" of the said DVD named 'Petrapole' that was supplied to CFSL Chandigarh by DRI Kolkata vide DRI F. No. DRI/KZU/CF/ENQ-58(INT-45)/2016/549 dated 03.05.2017 for the forensic examination of 20 voice clips only". The reply of the CPIO, CFSL Chandigarh is "As per the official record available in this laboratory the DVD that was supplied to CFSL Chandigarh by DRI Kolkata vide DRI F. No. DRI/KZU/CF/ENQ- 58(INT- 45)2016/549 dated 03.05.2017 for forensic examination of 20 files have been returned to DRI vide this office letter No. CFSLO/900/17/PHY/319/17/781 dated: 30.06.2017. However, as per records the number of audio files available in the "DOC" folder in the DVD are 20 (twenty) in number." The question asked and the reply given by CFSL, Chandigarh is self-explanatory. It appears that another DVD containing 20 audio clips were sent for said purported forensic examination, though, the alleged copy of DVD brought on record in the Supplementary SCN dated 18.05.2017 is having hundreds of such alleged purported recordings/voice clips, some of the them were identified by Shri Jyoti Biswas as voice clips of one Shri Goutam Das, Inspector, posted at Rishra Division / concern Range Office, whose name and signature was found on the alleged export documents relied upon. Such manipulation of sending the DVD having 20 voice clips, as confirmed by the CFSL, Chandigarh Authorities, is a classical example of the institutional corruption on part of DRI, Kolkata. The applicant crave leave to supply the copy of the Hon'ble CIC order dated 02.12.2022 in the 2nd Appeal No. CIC/MHOME/A/2021/635414 alongwith the reply dated 13.12.2022 of CFSL Chandigarh as and when asked for.
(l) Considering the forgery aspects, as mentioned supra, a forensic report was obtained by the undersigned from Truth Labs, Kolkata, India's first ISO 9001 certified Independent Forensic Science Laboratory, a prestigious forensic lab in India, which is fortifying the above claim, that, the DVD having 44 files/folders and, that having 45 files/folder cannot be same, and, their hash value will be different to each other. Hash value is the parameter to prove authenticity of a digital evidence. The copy of the clarification dated 15.02.2020 on the report of Truth Labs is enclosed herein as Annexure-C. The applicant herein crave leave to produce entire report, if specifically asked for.
Page 11 of 195.7. In the instant matter, the applicant herein has sought information from DGOV, Kolkata Authorities under RTI Act, 2005 vide RTI Application dated 10.02.2021 which was related to the act of 'considerations / evaluation' of the evidences on record, done by DGOV, East Zone, Kolkata Authorities preceding their 'act of forwarding' the complaint to the CBI Authorities under Prevention of Corruption Act, 1988 on 22.12.2017 as well as according recommendation for 1st Stage Advice in the disciplinary matter. In CBI matter, the said process of consideration/evaluation of documents has already been finalised on 22.12.2017 by the DGoV, East Zone, Kolkata Authorities when the said complaint was forwarded to CBI Authorities by Shri Pradyut Mukherjee, Assistant Commissioner, DGV, EZU, Kolkata vide letter C. No. 37/EZU/VIG/2017/1002 and 37/EZU/VIG/2017/1003, both dated 22.12.2017 to the HOB, ACB, Central Bureau of Investigation, Nizam Palace, Kolkata- 700071 which ultimately resulted into First Information Report on the very next day vide R.C. No. 0102017A0034 dated 23.12.2017 and R.C. No. 0102017A0035 dated 23.12.2017 respectively under Prevention of Corruption Act, without causing any preliminary enquiry by the CBI Authorities, as no such preliminary enquiry can be conducted and completed in one day. The CBI authorities have treated the said complaints as genuine and further treated it to be done after due diligence considering it to be akin to the successful preliminary enquiry and registered the F.I.R. without any further preliminary enquiry; though, as would be evident from the facts discussed hereinabove, no proper due diligence of purported evidence/s on record i.e. reasonable investigation was conducted by the DGOV, Kolkata Authorities, which is necessary prior to levelling criminal charges and forwarding the complaint to CBI Authorities or according necessary 1st stage advice in the instant disciplinary matter. In this process, it appears that fabricated fake/forged digital evidences, amongst others, were relied upon & referred to in the Charge Memorandum dated 14.02.2022 as 'original one', and, based on sauch fake/forged digital evidence, 1st stage advice was accorded by the DGOV Authorities rendering such act as malafide & arbitrary and in violation of the law of the land. In reply to the First Appeal dated 19.04.2021, the 1st Appellate Authority, DGoV, Kolkata vide order dated 13.05.2021 has ignored the facts regarding the omissions and commissions on part of DRI, KZU, and, its continuance on part of the DGoV authorities with respect to the irrefutable infirmities in the DVD stated supra. The FAA has mentioned the followings in the paragraph 8(i) of the order dated 13.05.2021-
"....The Appellant vide his aforesaid application dated 10.02.2021 had sought to know information about the cases which are being investigated/has been investigated by the Vigilance Unit and the CBI. The DRI has also investigated the case and has issued the Show Cause Notice................."Page 12 of 19
In para 9, of the said Order, dated 13.05.2021, the FAA mentioned that, "....the 'disputed facts' are not originally pertaining to his office but to a different public office.....".
Further, in the said para 9, the FAA mentioned-
"...........public servants work under a hierarchical structure and have to follow the instructions from higher authorities in that system of arrangement. The DGoV authorities also functions on the same principle. Thus, the DGoV authorities had no occasion to go for further examination and evaluation of the technical evidences from their end as suggested by the appellant, which were/are in the domain of other agencies, more so when they are acting under the instructions from higher-ups to carry out any function..............."
And-
".............The vigilance investigation going on in this office may also get stymied if the desired information are furnished at this stage........."
Evidently, the FAA has confessed that no application of mind has been carried out by the DGOV, Kolkata authorities while evaluating the documents considering their authenticity aspect either in course of forwarding the complaints to the CBI authorities or 'making references / conducting investigation' in the ongoing vigilance matter that culminated into the Charge Memorandum dated 14.02.2022. It appears that same is continuing till date in all connected proceedings.
The applicant herein crave leave to submit the copy of RTI Application dated 10.02.2021, copy of First Appeal dated 19.04.2021 alongwith FAA response dated 13.05.2021, as and when asked for.
5.8. It appears that based on the investigation outcome of DRI, Kolkata, further course of action was decided by the higher authorities. The CVO, CBIC vide the D.G.(Vig.) U.O. Note F. No. V-524/02/2016/Vol-II/1628 dated 23.11.2021 had forwarded the matter to Central Vigilance Commission for 1st stage advice against the three serving officers of CBIC formation as the matter involves a Group-A Officer. The applicant herein had sought certain information under RTI Act, 2005 from the AD-V Section vide RTI Application dated 20.03.2023 registered vide Registration No. DGVND/R/E/23/00029 dated 20.03.2023, and reply is awaited. The applicant craves leave to submit the copy of the RTI Application dated 20.03.2023, as and when asked for.
5.9. For sake of clarity, the above facts are brought into knowledge of the Authorities concerned. Evidently, in a patently illegal manner, based on illegal evidences, applicant herein is framed, and, in such course, while drafting the Charge Memorandum dated 14.02.2022, the authorities purposely couched in a vague manner, suppressed the abovementioned facts which goes into the root of the facts in issue, with malafide intention, which, apparently is a form of Page 13 of 19 institutional corruption and, against the mandates of the RTI Act, 2005 enforced for promoting transparency and accountability. Even, the requisite demand of the inspection of documents or supply of legible copies of the documents or the supply of the mentioned/referred documents as well as defence documents were pending till date.
5.10. Representation was preferred by the applicant herein before the Commissioner, CGST & CX, Haldia Commissionerate on 29.10.2018 in relation to his prolonged suspension in the matter that culminated into the Charge Memorandum dated 14.02.2022. False facts found mentioned in Supplementary Show Cause Notice dated 18.05.2017 alongwith clinching evidences brought on record therein by DRI itself, were brought into knowledge of the then Head of the Office of the applicant herein i.e. Commissioner, CGST & CX, Haldia Commissionerate for kind consideration. But most of those false facts are found repeating in the Charge Memorandum dated 14.02.2022 issued on the basis of same DRI Investigation. The applicant craves leave to submit the copy of the representation dated 29.10.2018, as and when asked for.
5.11. Shri Jyoti Biswas, the state witness in the impugned Charge Memorandum dated 14.02.2022, in one of his statements recorded under Section 108 of the Customs Act, 1962 by DRI, Kolkata, identified the voice of one Shri Goutam Das, Inspector, CGST & CX, Kolkata Zone. Shri Goutam Das was posted at Rishra Division as well as concern Range Office during the relevant period of export in the matter of smuggling of Red Sanders through Kolkata Port and his name and other details were found mentioned there on the incomplete export documents relied upon and having no signature of the Customs Authorities of Kolkata Port. Also, Shri Jyoti Biswas has identified the voice of said Shri Goutam Das in one of his statements recorded under Section 108 of the Customs Act. 1962. These are the clinching evidences of the DRI Kolkata, based on which, charge memorandum has been issued to some other officers including the applicant herein, but, it appears that no action was initiated against said Shri Goutam Das on the basis of same said statement of Shri Jyoti Biswas and the digital evidence seized by DRI, Kolkata on 29.07.2016.
5.12. The state witness Shri Jyoti Biswas, in one of his statements recorded under Section 108 of the Customs Act, 1962 has named one Shri Bijan Kumar Pani, the then Intelligence Officer of DRI, Kolkata and levelled serious allegations on him while said Shri Bijan Kumar Pani had executed search operation at the house of Shri Jyoti Biswas in the year 2011. Shri Jyoti Biswas is learnt to have stated in his purported statement recorded under Section 108 of the Customs Act, 1962 his association with Shri Bijan Kumar Pani on exchange of gold bengles in the year 2011 when there was a search operation executed Page 14 of 19 by Shri Bijan Kumar Pani with respect to the cases of TRA/DFIA Fraud [mentioned in the Supplementary SCN, dated 18.05.2017], and, Shri Jyoti Biswas was freed by said Shri Bijan Kumar Pani and his team members of DRI Kolkata in exchange of gold bengles/kada. It is also learnt that said Shri Bijan Kumar Pani was called by DRI under summons under Section 108 of the Customs Act and his statement was recorded. It is not known whether any action against Shri Bijan Kumar Pani has been initiated on instances of DRI, Kolkata or not.
5.13. The state witness Shri Jyoti Biswas, in one of his statements recorded under Section 108 of the Customs Act, 1962 has named one Shri Debdas Banerjee, Superintendent, CGST & CX as one of the officers facilitating export in the matter of M/s Spak Enterprises Pvt. Ltd. in the year 2016, wherein, the DVD was seized on 29.07.2016 by DRI, Kolkata. The SCN issued based on investigation of DRI, Kolkata in the matter of M/s Spak Enterprises Pvt. Ltd. has already been adjudicated by the Additional Commissioner, CC(P), WB, Kolkata and huge penalty has been imposed on said state witness Shri Jyoti Biswas. Shri Debdas Banerjee was posted at Petrapole LCS during the relevant period of export of M/s Spak Enterprises Pvt. Ltd. and allegedly facilitated said exports, and, in the process of such export facilitation, exchange of monetary benefits cannot be denied. It is learnt that said Shri Debdas Banerjee was examined by DRI, Kolkata in the said matter under Section 108 of the Customs Act, 1962, but no action was initiated against him, though, based on same statement of Shri Jyoti Biswas, other officers including the applicant herein is charged in terms of Rule 14 of the CCS(CCA) Rules, 1965 as well as proceeded in other connected proceedings.
6.0. In the backdrop of above and since the matter involves allegation of corruption, considering accountability and transparency in decision making process by the public authorities in larger public interest, please provide the following information
(i) Please provide the information whether any recommendation in any form for any action under any Act/Rules has been made by the DRI, Kolkata Authorities to the controlling Authorities of Shri Goutam Das till date. If the answer is yes, please provide authentic copy of such communication. If the answer is no, please provide information regarding the opinion formed by the DRI, Kolkata Authorities regarding the facts that prompted DRI, Kolkata Authorities not to bring Shri Goutam Das under ambit of any action. Please provide copy of respective note sheet / file noting of all concerned in this regard.
(ii) Please provide information whether any statement of Shri Goutam Das was recorded by DRI, Kolkata or not. If the answer is yes, please provide authentic copy/copies thereof.
Page 15 of 19(iii) Please provide the information whether any recommendation in any form for any action under any Act/Rules has been made by the DRI, Kolkata Authorities to the controlling Authorities of Shri Bijan Kumar Pani, erstwhile Intelligence Officer of DRI, Kolkata for the alleged act done in the year 2011 mentioned supra or not till date. If the answer is yes, please provide authentic copy of such communication. If the answer is no, please provide information regarding the opinion formed by the DRI, Kolkata Authorities regarding the facts that prompted DRI, Kolkata Authorities not to bring Shri Bijan Kumar Pani under ambit of any action. Please provide copy of respective note sheet / file noting of all concerned in this regard.
(iv) Please provide information whether any statement of Shri Bijan Kumar Pani was recorded by DRI, Kolkata or not. If the answer is yes, please provide authentic copy/copies thereof.
Please provide the information whether any recommendation in any form for any action under any Act/Rules has been made by the DRI, Kolkata Authorities to the controlling Authorities of Shri Debdas Banerjee, erstwhile Superintendent of Customs, Petrapole LCS or not till date. If the answer is yes, please provide authentic copy of such communication. If the answer is no, please provide information regarding the opinion formed by the DRI, Kolkata Authorities regarding the facts that prompted DRI, Kolkata Authorities not to bring Shri Debdas Banerjee under ambit of any action. Please provide copy of respective note sheet / file noting of all concerned in this regard.
(vi) Please provide information whether any statement of Shri Debdas Banerjee was recorded by DRI, Kolkata or not. If the answer is yes, please provide authentic copy/copies thereof."
The CPIO furnished a reply to the Appellant on 30.05.2023 stating as under:
"Refer to your online RTI applications bearing registration numbers DREVI/R/E/23/00064 dated 23.04.2023 and DREVI/R/E/23/00085 dated 23.04.2023 received in this office on 01.05.2023, from the Deputy Director/CPIO, DRI, Hqrs., New Delhi, under Section 6(3) of the RTI Act, 2005 and on 12.05.2023, from the Assistant Commissioner (CPIO), Pr. CCO, CGST & CX, Kolkata Zone, under Section 6(3) of the RTI Act, 2005, on the above subject.
With respect to the information sought under the RTI Act, 2005, it is to inform you that the Directorate of Revenue Intelligence (DRI) is exempted from providing information under Section 24 of the RTI Act, 2005 read with its Second Schedule."
Being dissatisfied, the appellant filed a First Appeal dated 01.06.2023. The FAA vide its order dated 30.06.2023, upheld the reply of CPIO.
Page 16 of 19Feeling aggrieved and dissatisfied, appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerged during Hearing:
The following were present:-
Appellant: Present through Video-Conference.
Respondent: Shri Jog K Deepak, Deputy Director/ CPIO present through Video- Conference.
Appellant stated that he is aggrieved by the fact that information has been wrongly denied by the Respondent. He stated that complete and correct information should be provided to him.
Respondent submitted that they have categorically informed the Appellant that DRI being exempt organisation under Section 24 of the RTI Act cannot part with the information as sought by him in his above-mentioned RTI applications.
Decision:
The Commission upon a perusal of records finds no scope of any relief and agrees with the reply of CPIO that the Respondent Public Authority is an exempt organization as per Second Schedule of Section 24 of the RTI Act. Further, the material on record does not suggest any allegation of corruption or human rights violation in the matter, for which reason, the Commission finds no reason to invoke the proviso to Section 24(1) of the RTI Act to allow the disclosure of information, if any. For the sake of clarity, the relevant provision of Section 24(1) is reproduced as under:
"24. Act not to apply to certain organizations.--
(1) Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the Page 17 of 19 information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section:..."
Merely the fact that the Appellant has been implicated in corruption charges does not make the exempted organisation liable to furnish the information pertaining to pending investigation conducted by the department. The Commission, furthermore, observes that this exemption is available only in cases related to corruption and human rights violation within the organization. In all the matters related to the investigation being done by the agency it has been exempted from disclosure under the provisions of the RTI Act.
The Commission also observes that no prima facie case has been made out by the Appellant and the information/ documents sought pertaining to departmental proceeding initiated against the Appellant could have been sought from his departmental proceeding file. Hence, keeping in view the abovementioned facts and the matrix the Commission therefore, agrees with the response furnished by the CPIO and hence no intervention of the Commission is required in the matter.
However, the Commission advises the Appellant to pursue his grievance, if any, through appropriate administrative mechanisms.
The above-mentioned second appeals are 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 Page 18 of 19 Copy To:
The FAA, Office of the Additional Director General, DRI, Kolkata, Harrington Mansion, Suit No. 16 & 17, 8, Ho Chi Minh Sarani, Kolkata - 700071 Page 19 of 19 Recomendation(s) to PA under section 25(5) of the RTI Act, 2005:-
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