Central Information Commission
Binod Kumar Gupta vs Central Board Of Indirect Taxes And ... on 30 January, 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/2021/657671 +
CIC/CBECE/A/2021/657761
Binod Kumar Gupta ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
Directorate of Revenue Intelligence,
Lucknow Zonal Unit, RTI Cell,
2/31, Vishal Khand- 2, Gomti Nagar,
Lucknow-226010, Uttar Pradesh. .... ितवादीगण /Respondent
Date of Hearing : 23/01/2023
Date of Decision : 23/01/2023
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 : 19/08/2021 & 06/09/2021
CPIO replied on : 09/09/2021
First appeal (s) filed on : 23/09/2021
First Appellate Authority : 02/11/2021
order(s)
2nd Appeal (s)/Complaint dated : NIL
1
CIC/CBECE/A/2021/657671
Information sought:
The Appellant filed an RTI application dated 19.08.2021 seeking the following information:2 3 4 5
The CPIO furnished a reply to the appellant on 09.09.2021 stating as under:
"In this regard, it is to inform that as mentioned under Serial no. 3 of Second Schedule of Section 24 of RTI Act, 2005, Directorate of Revenue Intelligence (DRI) is exempted under the ambit of RTI Act, 2005. Hence, the information as sought by you under RTI Act, 2005, cannot be provided."6
Being dissatisfied, the appellant filed a First Appeal dated 23.09.2021. FAA's order dated 02.11.2021, upheld the reply of CPIO.
CIC/CBECE/A/2021/657761 Information sought:
The Appellant filed an RTI application dated 06.09.2021 seeking the following information:
1. RUD 4 - page number 38 of the panchnama dated: 19.12.2019 drawn at L.B.S.I Airport Varanasi.
2. RUD 14 - Statement of shri Anwar Khalid dated 19.12.2019(page no.96-98).
3. RUD-21 - Panchnama dated 19.12.2019 drawn at residential premises of shri Pramod Kumar Verma imp from page no.127.139.
4. RUD-26-page no 154-179 (26 pages) of the statement of shri Pramod Kumar Verma imp.
5. RUD 30 - page no 199-212 of the statement of shri C.B.Singh dated 13.02.2020.
6. RUD 32 - Page no .218-264 of the statement of shri Abhay Raj Singh.
7. The statement of the accused as well as the persons/officials shown to me at the time of tendering of my statement dated 30.01.2020 on which my signature was taken to offer my comments. As the statement of the accused provide at. The time of serving the shown cause notice does not reflect my signature.
8. All the document / paper on which my signature was taken forcibly by the DRI at the time of tendering my statement dated 30.01.2020 and/or at the time of retrieval of date from my cellphone on dated 16/17/1/2020.
9. The CDR/Message/what's app message /Audio clip of all the smugglers apprehended with smuggled goods on 19.12.2019 at L.B.S.I Airport Varanasi
10.The CDR/message / what's app messages audio clip of the cellphone of the undersigned Binod Kumar Gupta: erst while the assistant commissioner's customs Division Varanasi.
11.The name of agency with complete address to make forensic tools to retrieve date of the mobile of Binod Kumar Gupta as well as the accused persons.
12.License /certified of the above paid agency make forensic test to retrieve date from the mobile.
The CPIO furnished a reply to the appellant on 09.09.2021 stating as under:
7In this regard, it is to inform that as mentioned under Serial no. 3 of Second Schedule of Section 24 of RTI 491,-2005, Directorate of Revenue intelligence (DRI) is exempted under the ambit of RTI Act, 2005. Hence, the information as sought by you under RTI Act, 2005, cannot be provided.
Being dissatisfied, the appellant filed a First Appeal dated 23.09.2021. FAA's order dated 02.11.2021, 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: Siddharth Tiwari, DRI & CPIO present through video-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 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 submissions pertaining to instant Appeals, the Appellant expressed his dissatisfaction with the denial of information by the CPIO & FAA on the plea of Section 24(1) of RTI Act by raising the following arguments -
"....the sought for information / documents is required to prove their corrupt practices adopted by the DRI otherwise they will implicate me in wrongful manner which attract penalty and prosecution / imprisonment causing violation of my human rights. The DRI has adopted corrupt practices which violates my right to not provide the RUDs/ non- RUDs and other relevant documents basis on which allegations have been made in the Show Cause Notice. .8
This can be elaborated in the following manner:-
1. On 19/12/2019, the DRI Lucknow apprehended the smugglers with the contraband goods in the arrival Hall of the LBSI Airport Varanasi but they have made false story that the accused was apprehended at Exit gate of the arrival Hall of the Airport after clearances made by the Customs. CCTV recordings of that day may kindly be referred as well as affidavit executed by one of the witness of the Panchnama dating therein that they ( DRI ) have forcefully have taken his signature on some documents and contents explained in the Panchnama is not correct. Hence, applicant wants to seek evidences through RTI from the DRI to prove corrupt practice adopted by them.
2. The mobile of the applicant have been taken from the applicant without observing any formalities like Panchnama and / or seizure memo which violates the right of the applicant. And after completion of the investigation, the DRI is not ready to return my mobile only because their officer as well as the commissioner of Customs will come under the net of vigilance enquiry against the charges of Corruption.
3. In the said mobile of the applicant there are so many evidences of illegal demand made by the ADG, DRI and his subordinate as well as the Commissioner Customs Lucknow ( Sri Ved Prakash Shukla) and the data retrieved from my mobile is being sought to prove/ explain the corrupt practice adopted by the higher officer including both the officers of the DRI as well as the Customs and when it was not fulfilled by the applicant, the DRI Lucknow hatched a conspiracy with the alliance of the Commissioner of Customs to implicate me in wrongful manner so that my transfer be made in an easy way.
4. While recording my statement at DRI Lucknow on 30/01/2020, they did not provide me food or allow me to go outside to take food . Further, after my objection raised, Sri S B Mishra frisked my body which violates my human rights.
My allegations was never detracted by the DRI meaning thereby they have accepted my allegation and for this reason the applicant wants to know that what action have been taken against the erring officers.
5. At the time of serving the Show cause notice, the said enclosed RUDs ( claimed to be enclosed) has not been provided in totality which the applicant wants to seek .
96. The data retrieved from the accused / smugglers who have made allegations against me has neither been provided to me nor have been reflected in the said Show Cause Notice which is sheer examples of his corrupt practices to suppress the facts, which the applicant wants to seek to defend his case for the sake of natural justice. Every citizen has the right to seek the evidences for the charges made against him and this dictum has not been followed by the DRI xxx
7. The applicant was forced to make signature on certain documents on 17/30.01.2020 even though objection was raised as regards the facts mentioned in these documents from the undersigned by using coercion which was not even allowed to be read by the applicant. This objection was intimated to them vide letter dtd. 18.05.2020 but it was never refuted by the DRI Lucknow. The paper on which my signature has been obtained by the DRI Lucknow forcefully which the applicant wants to seek fearing they will implicate in another false case. To protect the rights and to devoid any such attempt, such facts has been sought for, which is the basic right of the applicant.
8. At the time of recording my statement in the office of the DRI Lucknow, the DRI showed the recorded statement of the accused persons to offer my comments and for this purpose the DRI have taken my signature on it to correlate with it that the statement of the smugglers was shown to the applicant / noticee, and the DRI is not ready to provide that statement on which my signature has been taken meaning thereby the DRI Have prepared two sets of the statement of the accused for the purpose of to utilise as per their convenience which is sheer examples of corrupt practices adopted by them.
In this way the DRI has adopted a corrupt practices only to imprison me in wrongful manner and to penalise without any reasons which will violate the right to live right to liberty etc, the constitutional right given to every citizen...."
In response to Appellant's contentions, the CPIO invited attention of the bench towards his written submission (s) dated 18.01.2023, relevant extracts of which are reproduced below -
"....the applicant had sought the details of case investigated by this office wherein the Show Case Notice bearing DRI F.No. DRI/LZU/GI/26/Enq-03(Int-
0)/2020/9371 dated 17.06.2020 has been issued by this office under the Customs Act, 1962 and the applicant is a co-noticee in the said Show Cause Notice. The said Show Cause Notice along with its enclosures has already been 10 served to the applicant and his acknowledgement dated 18.06.2020 has been received in this office. The adjudication in the said case has also been done by the competent authority. Further, the applicant has the appellate forums available under the provisions of the Customs Act, 1962.
3. In view of the above, the information sought by the applicant in his RTI application do not fall under the ambit of conditions provided under Section 24(1) of the RTI Act, 2005, i.e. "(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 information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section". Since Directorate of Revenue Intelligence (DRI) is listed at Serial no. 3 of Second Schedule under Section 24 of RTI Act, 2005, therefore, the information sought by the applicant cannot be provided...."
The Appellant interjected to contest that the complete copy of RUDs and the other related statements of officers were not served to him at the time of issuance of Show cause notice; therefore he has opted the RTI channel for the desired information. In this regard, the CPIO explained that the Appellant should have approached the concerned adjudicating/appellant authority for further records and RTI is not an appropriate forum to look into the investigation and adjudicate the veracity of information furnished at that time to the Appellant. The CPIO also emphasized the fact that as on date the case of the Appellant is sub- judice before the CBI and EOW of Customs; therefore, he may file an application with them instead of resorting to RTI platform. Even otherwise, no contents of his impugned RTI Applications depict the aspect of human rights violation and/or corruption under which the veil of Section 24(1) of the Act as applicable to the DRI may be lifted. Thus, the instant Appeals may be dismissed accordingly.
Decision:
The Commission upon perusal of records and after hearing submissions of both the parties at length observes that core spectrum of documents placed on record by the Appellant through the instant Appeal(s) and the substance of his arguments during the hearing is to get the verification of the allegations/charges against him in the averred cases of investigation and to prove that he has been implicated falsely. As stated by the Appellant himself that he is looking for the 11 opinion/material more particularly the RUD/non RUDs and statements based on which the authorities have allegedly framed him as co-noticee while admitting the fact that he already has access to a multitude of the investigation related documents suggesting that since he has access to the documents already, there cannot be an impediment to investigation or prosecution. In pursuit of this cause of action, the Appellant appears to have misinterpreted the scope and ambit of the RTI Act and is largely not well acquainted with the technicalities of the Act in terms of what to ask, how to ask and most importantly, what to expect from the CPIO(s) & FAA in exercise of his right to information In other words, the instant RTI Applications do not strictly even conform to the provision of Section 2(f) of the RTI Act as the Appellant has raised queries or statements that are in the form of conjecture, seeking answers to "whether" questions or requires the CPIO to form an opinion based on records or interpret the records. Moreover, even though, a RTI Applicant is not required to disclose his intent for seeking information under the RTI Act, the fact that the Appellant has suo motu made it ostensibly clear at a number of instances on paper as well as verbally during the hearing that he refutes his implication in these cases by his department and seeks to verify or allay his apprehensions about the evidences presented etc. renders the instant cases ab initio not maintainable for relief.
The Appellant shall note that outstretching the interpretation of Section 2(f) of the RTI Act to include deductions and inferences to be drawn by the CPIO is unwarranted as it casts immense pressure on the CPIOs to ensure that they provide the correct deduction/inference to avoid being subject to penal provisions under the RTI Act. For the sake of clarity, the provision of Section 2(f) of the RTI Act is reproduced hereunder:
"2. Definitions.--In this Act, unless the context otherwise requires,--
(f) "information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;.."
In this regard, the Appellant's attention is drawn towards a judgment of the Hon'ble Supreme Court on the scope and ambit of Section 2(f) of RTI Act in the matter of CBSE vs. Aditya Bandopadhyay & Ors.[CIVIL APPEAL NO.6454 of 2011]wherein it was held as under:
12"35. At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing.........A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. It is also not required to provide `advice' or `opinion' to an applicant, nor required to obtain and furnish any `opinion' or `advice' to an applicant. The reference to `opinion' or `advice' in the definition of `information' in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act." (Emphasis Supplied) Similarly, in the matter of Khanapuram Gandaiah vs Administrative Officer &Ors. [SLP (CIVIL) NO.34868 OF 2009], the Hon'ble Supreme Court held as under:
"7....Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the "public authority" under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him...."
(Emphasis Supplied) And, in the matter of Dr. Celsa Pinto, Ex-Officio Joint Secretary, (School Education) vs. The Goa State Information Commission [2008 (110) Bom L R 1238], the Hon'ble Bombay High Court held as under:
"..... In the first place, the Commission ought to have noticed that the Act confers on the citizen the right to information. Information has been defined by Section 2(f) as follows.
Section 2(f) -Information means any material in any form, including records, documents, memos e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;
The definition cannot include within its fold answers to the question why which would be the same thing as asking the reason for a justification for a 13 particular thing. The Public Information Authorities cannot expect to communicate to the citizen the reason why a certain thing was done or not done in the sense of a justification because the citizen makes a requisition about information. Justifications are matter within the domain of adjudicating authorities and cannot properly be classified as information." (Emphasis Supplied) Now, even if a liberal interpretation could be accorded to the instant RTI Applications, the sheer enormity of its contents as can be seen in case File no. CIC/CBECE/A/2021/657671 which gravely limits the task of determining any relief vis-à-vis the applicability of various exemption clauses of the RTI Act and pertinently so, the RTI Application is not in consonance with Rule 3 of the RTI Rules, 2012 which provides as under:
"An application under sub-section (1) of Section 6 of the Act shall be accompanied by a fee of rupees ten and shall ordinarily not contain more than five hundred words, excluding annexures, containing address of the Central Public Information Officer and that of the applicant:."
In this context, the above discussed judgment of the Apex Court in CBSE vs. Aditya Bandopadhyay & Ors. records the following observations against impractical demands for information under the RTI Act as under:
"37. The right to information is a cherished right. Information and right to information are intended to be formidable tools in the hands of responsible citizens to fight corruption and to bring in transparency and accountability. The provisions of RTI Act should be enforced strictly and all efforts should be made to bring to light the necessary information under clause (b) of section 4(1) of the Act which relates to securing transparency and accountability in the working of public authorities and in discouraging corruption. But in regard to other information, (that is information other than those enumerated in section 4(1)(b) and (c) of the Act), equal importance and emphasis are given to other public interests (like confidentiality of sensitive information, fidelity and fiduciary relationships, efficient operation of governments, etc.). Indiscriminate and impractical demands or directions under RTI Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption) would be counter-productive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non- productive work of collecting and furnishing 14 information. The Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquility and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties. The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of a public authorities prioritising 'information furnishing', at the cost of their normal and regular duties."
Similarly, in ICAI v. Shaunak H. Satya, (2011) 8 SCC 781 the Hon'ble Supreme Court has held that:-
'39. We however agree that it is necessary to make a distinction in regard to information intended to bring transparency, to improve accountability and to reduce corruption, falling under Sections 4(1)(b) and (c) and other information which may not have a bearing on accountability or reducing corruption. The competent authorities under the RTI Act will have to maintain a proper balance so that while achieving transparency, the demand for information does not reach unmanageable proportions affecting other public interests, which include efficient operation of public authorities and the Government, preservation of confidentiality of sensitive information and optimum use of limited fiscal resources.' In the matter of Rajni Maindiratta- Vs Directorate of Education (North West - B) [W.P.(C) No. 7911/2015] the Hon'ble High Court of Delhi has held that:
'8. Though undoubtedly, the reason for seeking the information is not required to be disclosed but when it is found that the process of the law is being abused, the same become relevant. Neither the authorities created under the RTI Act nor the Courts are helpless if witness the provisions of law being abused and owe a duty to immediately put a stop thereto.' And, in the matter of Shail Sahni vs Sanjeev Kumar [W.P.(C) 845/2014] the Hon'ble High Court of Delhi has held that:
'...xxx 15 'This Court is also of the view that misuse of the RTI Act has to be appropriately dealt with, otherwise the public would lose faith and confidence in this "sunshine Act". A beneficent Statute, when made a tool for mischief and abuse must be checked in accordance with law.' While routinely adverting to the foregoing dicta, the Commission in an amplitude of cases have observed that often 'RTI Applicant(s) grossly misconceive the idea of exercising their Right to Information as being absolute and unconditional. It is rather unfortunate that even the best of intentions has to not only stand the test of procedural requirements and fetters laid down in the RTI Act but also stand the test of practicality and that the misuse of RTI Act is a well-recognized bane and citizens should take note that their right to information is not after all absolute.' It may also not be out of place to point out here that the cumbersome manner in which the Appellant has filed each of the instant Second Appeal(s), merely harp on the merits of the averred investigations; veracity of the evidence(s) amongst other narratives regarding the culpability of other officers and neither of these contents have any bearing on the mandate of the RTI Act particularly when no "information" per se has been sought for or rather where the Appellant by his own admission is already in possession of the "information" but through this platform seeks to verify that information.
The Appellant may also appreciate that the powers of the Commission under the RTI Act are confined to providing access to "information". Here, reference may be had of a judgment of the Hon'ble High Court of Delhi in the matter of Hansi Rawat and Anr. v. Punjab National Bank and Ors. (LPA No.785/2012) dated 11.01.2013 wherein it has been held as under:
"6. ...proceedings under the RTI Act cannot be converted into proceedings for adjudication of disputes as to the correctness of the information furnished."(Emphasis Supplied) The aforesaid rationale finds resonance in another judgment of the Hon'ble Delhi High Court in the matter of Govt. of NCT of Delhi vs. Rajender Prasad (W.P.[C] 10676/2016) dated 30.11.2017 wherein it was held as under:
"6. The CIC has been constituted under Section 12 of the Act and the powers of CIC are delineated under the Act. The CIC being a statutory body has to 16 act strictly within the confines of the Act and is neither required to nor has the jurisdiction to examine any other controversy or disputes."
While, the Apex Court in the matter of Union of India vs Namit Sharma (Review Petition [C] No.2309 of 2012) dated 03.09.2013 observed as under:
"20. ...While deciding whether a citizen should or should not get a particular information "which is held by or under the control of any public authority", the Information Commission does not decide a dispute between two or more parties concerning their legal rights other than their right to get information in possession of a public authority...." (Emphasis Supplied) Following the foregoing findings and discussions, the Commission is not in a position to order for any relief in the instant cases.
The Appellant is advised to pursue his grievances against his alleged indictment before the appropriate forum for plausible resolution and relief.
The appeal (s) are 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 / 17