Central Information Commission
Sandeep Kumar Dikshit vs Chief Commissioner Of Customs, Kolkata ... on 17 October, 2022
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 Nos.: As per Annexure.
Sandeep Kumar Dikshit ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
Directorate General of
Vigilance, Indirect Taxes and
Customs, East Zonal Unit, RTI
Cell C.R. Building, Bamboo
Villa (4th Floor), 169, A.J.C.
Bose Road, Kolkata-700014
West Bengal
CPIO,
O/o the Commissioner of Customs
(Prev.), CC(P), WB, Kolkata, RTI Cell,
3rd Floor, Custom House,
15/1, Strand Road,
Kolkata-700001,
West Bengal
CPIO,
O/o the Asstt. Commissioner
of Customs, RTI Cell,
Petrapole LCS, Bongaon,
North 24 Paraganas-743704,
West Bengal .... ितवादीगण /Respondent(s)
Date of Hearing : 22/09/2022
Date of Decision : 12/10/2022
1
INFORMATION COMMISSIONER : Saroj Punhani
Note : The instant appeal(s) have been clubbed for the sake of brevity as these
pertain to the same subject matter and corresponding RTI Applications.
Relevant facts emerging from the appeal(s):
RTI application(s) filed on :10/02/2021; 07/02/2021; 08/02/2021 &
18/10/2021
CPIO(s) replied on :17/03/2021; 26/02/2021; 20/01/2021
First appeal filed on :19/04/2021; 11/03/2021; 06/02/2021 &
09/05/2021
First Appellate Authority's :13/05/2021; 21/04/2021; 11/04/2021;
order 24/06/2021 & 26/06/2021
2nd Appeal/Complaint dated :13/06/2021; 07/05/2021; 05/05/2021;
11/05/2021; 09/08/2021; 24/09/2021 &
25/09/2021
CIC/DGVCE/A/2021/623736
Information sought:
The Appellant filed an RTI application dated 10.02.2021 seeking the following information:
A. "Please provide the information whether DRI, Kolkata Authorities or any other Authority of CGST & C. Ex., Kolkata Zone has made any complaint/ recommendation to DGoV, East Zone, Kolkata Authorities to lodge abovementioned complaint with CBI Authorities or not.
B. If the answer to the point 6-A above is yes, please provide the information that when DRI, Kolkata Authorities or any other Authority of CGST & C. Ex., Kolkata Zone has made recommendation to the DGoV, East Zone, Kolkata Authorities to forward the case to ACB, CBI, Kolkata. Please provide the letter reference number and details of the documents supplied with said letter to the DGoV, East Zone, Kolkata Authorities.
C. Please provide the copies of the each internal communications / reports / documents received from DRI, Kolkata Zonal Unit, Kolkata or any other Authority of CGST & C. Ex., Kolkata Zone or others which prompted the DGoV, East Zonal 2 Unit, Kolkata Authorities to lodge abovementioned complaints to the ACB, CBI, Kolkata.
D. Please provide information whether the forensic copy of the DVD seized from the office premises of one M/s Spack Enterprises Pvt. Ltd, Room No. 403, 4th Floor, 1, Cock Burn Lane, Kolkata-700016 by DRI, Kolkata on 29.07.2016 was provided to the DGoV, East Zone, Kolkata Authorities or not. If the answer yes, please provide information regarding the number of files / folder available in the master folder "DOC" when clicked once on it.
E. Please provide information whether the copy of the Panchanama dated 29.07.2016 with all enclosures [copy enclosed], drawn at the office premises of M/s Spack Enterprises Pvt. Ltd, Room No. 403, 4th Floor, 1, Cock Burn Lane, Kolkata-700016 was provided to the DGoV, East Zone, Kolkata Authorities or not.
F. Please provide information whether prior to lodge abovementioned complaints with ACB, CBI, Kolkata; DGoV, East Zone, Kolkata Authorities has checked the authenticity of said forensic copy of the DVD as well as its cross checking with the Panchanama dated 29.07.2016 or not. If the answer herein is yes, please provide information, in detail, about any discrepancy observed therein. Please provide information whether any such discrepancy was noted in the file or not. If the discrepancies were noted in the file, please provide the copies of the respective note-sheets.
G. Please provide the copies of all note sheets of the files that deal the abovementioned two complaints.
H. Please provide the information whether the copy of the statements dated 21.09.2016 and 27.10.2016 of one Jyoti Biswas, recorded by DRI, Kolkata Authorities under Section 108 of the Customs Act, 1962 was provided to the DGoV, East Zone, Kolkata Authorities or not. If the answer yes, please provide information about the actions taken against the other officers mentioned in those statements who were posted at Petrapole LCS / other places and were purportedly involved in cases related to M/s Spack Enterprises Pvt. Ltd, Room No. 403, 4th Floor, 1, Cock Burn Lane, Kolkata-700016 and others. Please provide information whether any such discrepancy regarding the actions of DRI, Kolkata which appear to be based on pick and choose method was noted in the file or not. If the discrepancies were noted in the file, please provide the copies of the respective note-sheets.
I. Please provide information whether any other complaint has been made or not against the other officers who had taken 10% of Duty Drawback amount to facilitate the exports made by M/s Spack Enterprises Pvt. Ltd Room No. 403, 4th Floor, 1, Cock Burn Lane, Kolkata-700016, as named by Jyoti Biswas (as per his statement dated 21.09.2016). Please provide information whether any such 3 discrepancy regarding the actions of DRI, Kolkata which appear to be based on pick and choose method was noted in the file or not. If the discrepancies were noted in the file, please provide the copies of the respective note-sheets. J. Please provide information whether the copy of the letter under DRI F. No. DRI/KZU/CF/ENQ-58(INT-45)/2016/7340 dated 05.04.2017 [copy enclosed], addressed to the CFSL, Chandigarh Authorities were provided to DGoV, Kolkata Authorities or not.
K. Please provide the information whether the copy of the letter F. No. CFSL(C)- 727/2017/PHY/243/2017/225 dated 12.04.2017 [copy enclosed] of the CFSL, Chandigarh has been provided to the DGoV, Kolkata Authorities or not. This letter quoted that the said case is non-acceptable in the laboratory in absence of the following information / items, necessary for examination and returned the all exhibits to DRI, Kolkata.
(iv) Original Recording media as well as recording device used,
(v) Call Detail Record (CDR) of relevant date and time,
(vi) Person-wise transcripts of the conversations, L. Please provide information whether the letter of DRI, Kolkata authorities, under DRI F. No. DRI/KZU/CF/ENQ-58(INT-45)/2016/549 dated 03.05.2017 [copy enclosed] was provided to DGoV, Kolkata Authorities or not. The said letter mentioned impressed upon the CFSL, Chandigarh Authorities that ......"The copy of the said original DVD, made at Cyber Forensic Lab at DRI, Kolkata under panchanama proceedings has been sent to you for examination. So, the original recording media as well as the recording device cannot be provided and copy of the DVD sent to you, which bears the signature of the Panchas and the persons from whom it was seized is to be treated as original."....... M. Please provide information whether the Report of CFSL, Chandigarh Authorities, sent under letter C. No. CFSL(C)/900/17/PYY/319/17/960 dated 29.05.2017 was provided to DGoV, Kolkata Authorities or not. N. Please provide information whether discrepancy regarding the number of files/folders available on disc in master folder "DOC" reported as 45 in Annexure to Panchanama dated 29.07.2016 and found as 44 in the Forensic copy prepared and provided by DRI, Kolkata Authorities was noted during the file processing or not. If the discrepancies were noted in the note-sheet, please provide authentic copy of the respective pages of the note-sheet.
O. Please provide information whether any query was raised by DGoV, Kolkata Authorities to DRI, Kolkata Authorities regarding the mismatch in the DVD seized on 29.07.2016 and that forwarded as Forensic copy to all including CFSL, Chandigarh, the notices under Supplementary SCN dated 18.05.2017 and others or not."
4The CPIO transferred the RTI application on 11.02.2021 to the CPIO, DGoV, Customs & Central Excise, East Zonal Unit, 169 A.J.C. Bose Road, Bamboo Vila, Kolkata under section 6(3) of the RTI Act, 2005 for providing information directly to the appellant.
Subsequently, CPIO, DGoV, Customs & Central Excise, East Zonal Unit, 169 A.J.C. Bose Road, Bamboo Vila, Kolkata furnished a para wise reply and denied information to the appellant on 17.03.2021 under section 8(1)(e) of the RTI Act, 2005.
Being dissatisfied, the appellant filed a First Appeal dated 19.04.2021. FAA's order dated 13.05.2021 held as under:-
"The information sought are available in the DGoV, Kolkata under fiduciary relationship as these were received by this Office as 'confidential' information from a different authority. Further, Vigilance Investigation being carried out by this Zonal Unit of the Directorate General of Vigilance is not yet over. CBI's prosecution in this matter is also under process. Therefore, the information sought cannot be provided to the Appellant as this may impede the process of -further investigation and prosecution. Hence, the information sought is denied under section 8(1)(e) & 8(1)(h) of the RTI Act 2005. I also uphold the decision of the CPIO for denying the information sought and therefore reject the present appeal."
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal.
CIC/CCUKL/A/2021/617380+ CIC/CCEKL/A/2021/617551/CCUKL+ CIC/CCUKL/A/2021/617555 Information sought:
The Appellant filed an online RTI application dated 07.02.2021 seeking the following information:
1) "Please provide information that how many Shipping Bill(s) / Bill(s) of Export have been filed either manually or through EDI system for disbursal of duty drawback by abovementioned exporter since 01.04.2010 till 01.04.2017 wherein, there was clearance under ARE-1 procedure in terms of the Notification No. 5 42/2001-Central Excise (N.T.) dated 26.06.2001. Please also provide following information in this regard-
(iv) Please provide information whether verification of such ARE-1 have been done by the Hqr. Drawback Section, CC(P), WB, Kolkata prior to disbursal of the drawback amount to said exporter or not.
(v) If verification of the ARE-1s has been done, please provide the authentic copies of such verification report and all communications made in this regard either manually or in EDI System alongwith details of the Officer(s) of the Hqr. Drawback Section, CC(P), WB, Kolkata who had verified it.
(vi) Please provide the information viz. Name, designation, SSO ID and the detailed order(s) of the Officer(s) who had finally gave orders for disbursal of the duty drawback amount for each shipping bill of the said exporter after verification of the ARE-1 concerned.
2) Please provide the authentic copies of the Shipping Bill(s) / Bill(s) of Export filed by the said exporter for duty drawback disbursal since 01.04.2010 to 01.04.2017 under Duty Drawback Scheme wherein clearance was made under ARE-1 procedure in terms of the Notification No. 42/2001-Central Excise (N.T.) dated 26.06.2001.
3) Please provide the authentic copies of the ARE-1's filed by the said exporter for disbursal of duty drawback since 01.04.2010 to 01.04.2017 against each Shipping Bill(s) / Bill(s) of Export. If such copies of the ARE-1's against each shipping Bill is not available at the Hqr. Drawback Section, CC(P), WB, Kolkata, clarifications/reasons regarding their non-availability should be given.
4) Please provide the information regarding the comments made either in EDI System or manually in concerned drawback file during the process of disbursal of duty drawback regarding the Shipping Bill(s) where clearance was made under ARE-1 procedure during the period 01.04.2010 to 01.04.2017 by the said exporter. In this regard, please provide following information also-
(iv) Please also provide the details like name, designation and SSO ID of the respective Customs Officer(s) who had made such comments/query regarding the said consignments of said exporter during disbursal of the duty drawback.
(v) In case of processing of duty drawback in EDI system, please provide the EDI system generated copy of all such comments/query and communication made against each such shipping bill with full details of the Customs Officer concerned.
(vi) In case of manual processing, please provide the copy of all such comments/query and communication made in concerned drawback file against each such shipping bill with full details of the Customs Officer concerned.
5) In reply to my RTI dated 18.10.2020, the CPIO, CC(P), W.B., Kolkata vide letter dated 20.01.2021 informed that the documents contained in a CD/DVD was 6 supplied to Adjudication Section [ADC Level], CC(P), WB, Kolkata by Hqr. Drawback Section, CC(P), WB, Kolkata. The said SCN issued vide F. No. VIII(10)146/DBExp/ADC/ADJ/CUS/WB/17-18, VIII(10)148/RTI/ADC/ADJ/CUS/WB/17-1/361-369P, VIII(10)149/DBEnt/ADC/ADJ/CUS/WB/17-18/343-351P dated 10.01.2018 was finalised vide the O-I-O No. 100,102, 103/ADC(P)/CUS/WB/19-20, dated 05.06.2020. In this regard, please provide following information regarding the SCN issued against said exporter and others-
(i) Please provide information whether the SCN was drafted and/or issued by the Hqr. Drawback Section regarding the said exporter or not. If the SCN was drafted by the Hqr. Drawback Section, CC(P), WB, Kolkata, on the basis of some recommendations of either DRI Kolkata or the Commissioner of Customs (Prev.), CC(P), WB, Kolkata, please provide the copies of all such recommendations alongwith following information also a. Please provide information regarding availability of forensic copy of the DVD seized by DRI, Kolkata on 29.07.2016 which have 45 files/folders in master folder "Doc" relied upon in these cases. Please provide its hash value, if available and if it is not available, clarifications regarding its non-availability in detail. b. Please provide the authentic mirror image / forensic copy of such DVD mentioned above at Sl. No. 5(i)(a) above which will matched accurately with the Panchanama dated 29.07.2016 in terms of files/folders available in master folder "Doc" as mentioned therein in Panchanama dated 29.07.2016 drawn by DRI Kolkata at the time of seizure.
c. Please provide the information, as detailed below, which is related to the forensic copy of the DVD supplied by DRI, Kolkata to the Hqr. Drawback Section, CC(P), WB, Kolkata which was relied upon in passing of the abovementioned Order-in-Original passed by the Additional Commissioner, Adjudication Section (ADC Level), CC(P), WB, Kolkata.
(x) Please provide information regarding the number of files/folder it contains in its master folder "Doc" alongwith copy of respective screen shot. (y) Please also provide the copy of forensic report supporting the claim in this regard.
(z) Please also provide the opportunity of visual inspection of such DVD in reference to the information sought herein regarding the number of files/folders available in master folder "Doc" of said DVD. Please also allow the applicant to draw joint inspection report in this regard with proper dated endorsement with seal of concerned authorities present at the time of inspection.
7d. Please provide the information regarding creation time of the DVD seized by DRI Kolkata on 29.07.2016 which was relied upon by the Ld. Adjudicator in adjudication proceedings related to abovementioned O-IO. Please following inform also-
(x) Please provide the copy of forensic report in this regard. (y) If the reply is in negative sense, please provide clarification regarding non- availability of such report and clarifications regarding relying upon such electronic record without having and analysing any supporting forensic report. e. Please provide information regarding availability of original recordings used in creation of DVD mentioned at sl. No. 5(i)(a) above. In case of absence of original recordings, please provide information regarding any certificate obtained under provisions of Section 138C of the Customs Act, 1962 or Section 65B of the Indian Evidence Act at the time of its seizure i.e. on 29.07.2016. f. Please provide copies of note-sheets of all files right from the files of Drawback Section from where the case(s) related to above O-I-O corresponding to the said SCN have been dealt with.
g. Please provide the copies of all correspondences / communications precedent to issuance of the Show Cause Notice resulting abovementioned O-I-O including letters / D.O. letter(s) if any.
6) Please provide information regarding the Name, designation and SSO ID of the Officer of the Customs posted at the Hqr. Drawback Section, CC(P), WB, Kolkata at the relevant point of time who has verified the ARE-1 prior to the disbursal of the duty drawback to said exporter.
7) Please provide the information regarding the mode adopted by the Customs Officers posted at the Hqr. Drawback Section, CC(P), WB, Kolkata to verify the ARE-1 concerned, with Range Officer of the Central Excise Range Office, if any, prior to disbursal of the duty drawback to said exporter. Please provide information whether such communication was done through registered post or through the exporter concerned and please also provide the copy of the said communication.
8) Please provide the information whether any ARE-1 was reported fake by concerned Central Excise Range in course of such ARE-1 verification during disbursal of duty drawback to said exporter. If any such ARE-1 was reported fake, please provide copy of each such report provided by concerned Central Excise Range corresponding to each ARE-1 used by the said exporter for export under Duty Drawback Scheme under ARE-1 procedure for the period 01.04.2010 to 01.04.2017.
9) If any of the answers regarding information sought at Sl. No. 1, to 8 above are affirmative then please provide the opportunity of inspection of all such original 8 documents as per convenience of the authorities concerned within stipulated timeframe under RTI Act, 2005. Please also allow the applicant to draw joint inspection report in this regard with proper dated endorsement with seal of concerned authorities present at the time of inspection.
10) Please provide the authentic copies of all documents mentioned at Sl. No. 1 to 8 above.
11) Please provide copies of note-sheets of all files which deal with the verification of the ARE-1's at the time of disbursal of duty drawback and issuance of the SCN in the instant matter.
12) Please provide the copies of all correspondences / communications made till date with Petrapole LCS, CC(P), WB, Kolkata and any other authority regarding verification of each ARE-1 in course of disbursal of duty drawback to said exporter for the exports made during 01.04.2010 to 01.04.2017.
13) Apart from the above, the applicant seeks opportunity of inspection of the all documents as sought above as well as information regarding their originality, which is to be provided to the applicant in due course."
The CPIO denied information to the appellant on 26.02.2021 under section 8(1)(h) of the RTI Act, 2005.
Being dissatisfied, the appellant filed a First Appeal dated 11.03.2021. FAA's order dated 21.04.2021 upheld the reply of CPIO.
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal.
CIC/CCUKL/A/2021/617389+ CIC/CCUKL/A/2021/617515+ CIC/CCUKL/A/2021/617518+ CIC/CCUKL/A/2021/617524 Information sought:
The Appellant filed an RTI application dated 18.10.2021 seeking the following information:
1. "Please provide information regarding availability of all the related export documents in concerned Adjudication file, in original, which were relied upon in adjudication proceeding at Adjudication Section, ADC Level, CC(P), WB Kolkata.
Please also provide information regarding availability of all respective ARE-1s, in 9 said documents, in original, regarding all shipping bills found mentioned in said O- I-O and related adjudication proceedings.
2. Please provide information that all the related export documents, in original, relied upon in course of adjudication proceedings regarding abovementioned O-I- O, as mentioned in Sl. No. 1 above, have proper endorsement of customs officers of Petrapole LCS who have appraised and/or examined the subject consignments or not
3. Please provide information regarding availability of the related export documents which have no endorsement of respective Customs Authorities of Petrapole LCS but were also relied upon in adjudication proceedings related to abovementioned O-I-O alongwith information related to their source/origin. If the answer is affirmative herein, please provide clarifications related to legality of using such unendorsed documents in such quasi judicial proceedings.
4. If any of the answers regarding information sought at Sl. No. 1, 2, & 3 above are affirmative then please provide the opportunity of inspection of all such original documents as per convenience of the authorities concerned within stipulated timeframe under RTI Act, 2005. Please also allow the applicant to draw joint inspection report in this regard with proper dated endorsement with seal of concerned authorities present at the time of inspection.
5. Please provide the authentic copies of all available documents mentioned at Sl. No. 1, 2, & 3 above.
6. Please provide information regarding availability of forensic copy of the DVD seized by DRI, Kolkata on 29.07.2016 which have 45 files/folders in master folder "Doc" relied upon in these cases. Please provide its hash value, if available and if it is not available, clarifications regarding its non-availability in detail.
7. Please provide the authentic mirror image / forensic copy of such DVD mentioned above at Sl. No. 6 above which will matched accurately with the Panchanama dated 29.07.2016 in terms of files/folders available in master folder "Doc" as mentioned therein in Panchanama dated 29.07.2016 drawn by DRI Kolkata at the time of seizure.
8. This information is sought regarding the forensic copy of the DVD available with Adjudication Section, ADC Level, CC(P), WB, Kolkata which was relied upon in passing of the abovementioned O-I-O. Please provide information regarding the number of files/folder it contains in its master folder "Doc" alongwith copy of respective screen shot. Please also provide the copy of forensic report supporting the claim in this regard. Please also provide the opportunity of visual inspection of such DVD in reference to the information sought herein regarding the number of files/folders available in master folder "Doc" of said DVD. Please also allow the 10 applicant to draw joint inspection report in this regard with proper dated endorsement with seal of concerned authorities present at the time of inspection.
9. Please provide the information regarding creation time of the DVD seized by DRI Kolkata on 29.07.2016 which was relied upon by the Ld. Adjudicator in adjudication proceedings related to abovementioned O-I-O. Please provide the copy of forensic report in this regard. If the reply is in negative sense, please provide clarification regarding non-availability of such report and clarifications regarding relying upon such electronic record without having and analysing any supporting forensic report.
10. Please provide information regarding availability of original recordings used in creation of DVD mentioned at sl. No. 6 above. In case of absence of original recordings, please provide information regarding any certificate obtained under provisions of Section 138C of the Customs Act, 1962 or Section 65B of the Indian Evidence Act at the time of its seizure i.e. on 29.07.2016.
11. Please provide copies of note-sheets of all files right from the files of Drawback Section to Adjudication Section [ADC Level] from where the case(s) related to above O-I-O have been dealt with.
12. Please provide the copies of all correspondences / communications precedent to issuance of the Show Cause Notice resulting this O-I-O including letters / D.O. letter(s) if any.
13. Apart from the above, the applicant seeks opportunity of inspection of the relied upon documents and relevant documents as well as information regarding their originality, which were relied upon in course of the adjudication proceedings."
The CPIO furnished a reply to the appellant on 20.01.2021 stating as follows:-
"The applicant has sought for some information/documents in relation to Order in-Original (1)100/ADC(P)/CUS/WB/19-20 dated 05.06.2020 (ii) 101/ADC(P)/CUS/ WB/19-20 dated 05.06.2020 (iii) 102/ADC(P)/CUS/WB/19-20 dated 05.06.2020 (iv)103/ADC(P)/CUS/WB/19-20 dated 05.06.2020 all passed by the Additional Commissioner of Customs(P), CCP, WB, Kolkata. In these cases Show cause notices were issued based on the investigation made by DRI, KZU on export consignment through Petrapole LCS. Thus, document in original form is available either to DRI KZU or Petrapole LCS. In the instant case, only one CD/DVD was supplied by Drawback section as a relied upon document. Therefore, this section is not in a position to provide information/original documents."11
Being dissatisfied, the appellant filed a First Appeal dated 06.02.2021. FAA's order dated 11.04.2021 upheld the reply of CPIO.
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal.
CIC/CCUKL/A/2021/635688 Information sought:
The Appellant filed an RTI application dated 08.02.2021 seeking the following information:
"The information sought is in form of documents, clarifications and inspection of original documents which are related to the export covered under Bill of Export No.3134799 dated 06/05/14; 3850297 dated 14/07/14; 5048595 dated 17/9/14; 6811297dated 23/12/14; 9825898 dated 4/5/2015; 1907565 dated 20/7/15; 4020191 dated7/11/15; 5302104 dated 15/01/16; 5915309 dated 17/02/16 and 6092170 dated25/02/16, all filed for clearance at Kolkata Port. It is requested to provide information for each Bill of export separately, if possible regarding following points.
The following information is sought related to the abovementioned bill of export wherein, export was done through Kolkata Port.
10) Please provide information that who has filed these bills of export / shipping bills.
11) Please provide information regarding the Name, IEC Number, Address of exporter(s)and their KYC details for each bill of export.
12) Please provide information whether the bill of export was filed by the exporter concerned/his authorised representative i.e. Custom Broker or not. If the answer is negative, please provide the details of the person who has filed these Bills of Export.
13) Please provide information regarding the person who had get registered the exporter(s) of the abovementioned Bills of Export at Kolkata Port under provisions of the Customs Act and prevailing Shipping Bill Regulation to initiate export through Kolkata Port. Please provide information regarding the officer who has verified the documents after viewing the originals from the concerned exporter.
Please provide the authentic copy of such documents submitted by the export(s) for registration at Kolkata Port.
14) Please provide information whether export was made under duty drawback scheme in case of any of abovementioned Bills of Export. If the answer is affirmative, please provide the disbursement details of the duty drawback to 12 concerned exporter viz. Bank Details alongwith details of the account holder, date of disbursal and amount involved.
15) Please provide the information/details viz. Name, Designation and SSO ID of the Officers who has appraised abovementioned bills of export. In this regard. Please provide the following information also-
(v) Please provide information about the query made by the officer in EDI system for each bill of export.
(vi) Please also provide information whether any kind of discrepancy was observed and reported by her/him in course of the appraisement of the each of the abovementioned export consignment or not.
(vii) Please also provide information whether in the case of such exports, date ofARE-1 can be a date much after the date of the Bill of Export concerned or not and whether such discrepancy was observed with respect to abovementioned bills of export in course of appraisement or not.
(viii) Please provide EDI system generated copy of each comment made in course of appraisement of abovementioned bills of export.
16) Please provide information/details viz. Name, Designation and SSO ID of the Officer who has examined abovementioned Bill of Export. In this regard, please provide following information also-
(v) Please provide information about the EDI System generated comments made by such officer for each bill of export.
(vi) Please provide information whether any kind of discrepancy was observed and reported by her/him in course of the examination of the each of the abovementioned export consignment or not.
(vii) Please provide information about the Seal viz. its inscription, number and whether it was a Central Excise Seal or Bottle Seal or both used against each bill of export as mentioned above.
(viii) Please provide EDI system generated copy of each comment made in course of examination of abovementioned bills of export.
17) Please provide information regarding the officer who has accorded Let Export Order against abovementioned Bills of Export. Please also provide information whether any kind of discrepancy was observed and reported by him in course of issuance of theLet Export Order or not.
18) Please provide information whether abovementioned bills of export were covered under ARE-1 procedure in terms of the Notification No. 42/2001-Central Excise(N.T.) dated 26.06.2001 or not. If the answer is yes, please provide following information also-
(ix) Please provide information whether the duplicate copy [Customs Copy] of the 13 ARE-1's filed against each abovementioned Bill of Export are available at the relevant office or not. Please provide information that who is the custodian of such documents. If these ARE-1s are not available, please clarify the reasons behind it.
(x) Please provide information whether the post export mode and procedures adopted by Kolkata Port Authorities to send the original copy of the ARE-1 to the concern Central Excise Range Office was same as prescribed under Para-2(iv)(c) of the Notification No. 42/2001-Central Excise (N.T.) dated 26.06.2001or different regarding each export covered under abovementioned Bills of Export. Please provide information with details like details of the officer concerned who has sent ARE-1 to concern Central Excise Range, mode of such communication and any query raised by anyone in this regard for each abovementioned shipping bill / Bill of Export. The para-2(iv)(c) of the Notification No. 42/2001-Central Excise (N.T.) dated 26.06.2001 is reproduced below for your convenience- ....The Commissioner of Customs or the other duly appointed officer shall return the original and quadruplicate (optional copy for exporter) copies of application to the exporter and forward the duplicate copy of application either by post or by handing over to the exporter in a tamper proof sealed cover to the officer specified in the application, with whom the exporter has furnished bondor a letter of undertaking....
(xi) Please provide information regarding the Name, designation and SSO ID of the Officer of the Customs posted at Kolkata Port at the relevant point of time who was entrusted with and/or responsible for the fulfilment of ARE-1verification procedure with respect to the abovementioned Bills of Export /Shipping Bills, post export, in terms of the Para- 2(iv)(c) of the Notification No.42/2001-Central Excise (N.T.) dated 26.06.2001.
(xii) Please provide the information regarding the mode adopted by the Customs Officers to send the ARE-1 copy, in original, post export, to concern Range Officer of the Central Excise Range Office in terms of the Para- 2(iv)(c) of the Notification No. 42/2001-Central Excise (N.T.) dated 26.06.2001. Please provide information whether such communication was done through registered post or through the exporter concerned.
(xiii) Please provide the information whether any ARE-1 was reported fake by concerned Central Excise Range in course of fulfilment of ARE-1 procedure, post export, sent by Kolkata Port officials in terms of the Para- 2(iv)(c) of the Notification No. 42/2001-Central Excise (N.T.) dated 26.06.2001. Please provide copy of each such report provided by concerned Central Excise Range corresponding to each ARE-1 used by the said exporter for export made under abovementioned bills of export.
14(xiv) Please provide information that in case of violation of ARE-1 verification procedure in terms of Para- 2(iv)(c) of Notification No. 42/2001-Central Excise (N.T.) dated 26.06.2001, whether any officer posted at Kolkata Port or the Exporter was held responsible till date regarding the exports done under abovementioned bills of export or not.
(xv) Please also provide information that which customs officer posted at Kolkata Port was entrusted with the duties of verification of ARE-1 / forwarding ofARE-1 to concerned Central Excise Range Office through the mode of forwarding as prescribed in Para- 2(iv)(c) of the Notification No. 42/2001-Central Excise (N.T.) dated 26.06.2001. Please provide the detailed information of any such officer posted at Kolkata Port, who was held responsible for non-fulfilment of ARE-1 procedure in terms of Para- 2(iv)(c) of the Notification No. 42/2001-Central Excise (N.T.) dated 26.06.2001 with respect to the exports made under abovementioned bills of export.
(xvi) Please provide copies of note-sheets of all files which deal with the fulfilment of ARE-1 procedure, post export, regarding abovementioned bills of export in terms of Para- 2(iv)(c) of the Notification No. 42/2001-Central Excise (N.T.) dated 26.06.2001.
13. Please provide the opportunity of inspection of all such original documents filed under abovementioned Bills of Export as per convenience of the authorities concerned within stipulated timeframe under RTI Act, 2005. Please also allow the applicant to draw joint inspection report in this regard with proper dated endorsement with seal of concerned authorities present at the time of inspection.
14. Please provide the authentic copies of all documents filed against abovementioned bills of export.
15. Apart from the above, the applicant seeks opportunity of inspection of the all documents as sought above as well as information regarding their originality, which is to be provided to the applicant in due course."
Having not received any response from the CPIO, the appellant filed a First Appeal dated 09.05.2021. FAA's order, if any, is not available on record.
Feeling aggrieved and dissatisfied with the non-receipt of information, the appellant approached the Commission with the instant Second Appeal.
CIC/CCUKL/A/2021/645044+ CIC/CCUKL/A/2021/645072+ CIC/CCUKL/A/2021/645088+ CIC/CCUKL/A/2021/645090 15 Information sought:
The Appellant filed an RTI application dated 07.02.2021 seeking the following information:
1) "Please provide information that how many Shipping Bill(s) / Bill(s) of Export have been filed by abovementioned exporter since 01.04.2010 till 01.04.2017 under Duty Drawback Scheme and out of these, how many was cleared under ARE-1 procedure in terms of the Notification No. 42/2001-Central Excise (N.T.) dated 26.06.2001. Please also provide information that out of these ARE-1's, how many are self-sealed and how many are sealed by Central Excise Officer. Please also provide information that whether the vehicles used for such exports under ARE-1 procedure were open vehicles in unsealed condition or closed vehicles in temper-proof sealed condition with central excise seal of respective Central Excise Range and one time bottle seal. Please also provide the EDI system generate examination report of the examination done by the Customs Officer at the time of clearance with respect to such seal check against each such shipping bill cleared between 01.04.2010 to 01.04.2017 with respect to the said exporter.
2) Please provide the authentic copies of the Shipping Bill(s) / Bill(s) of Export filed by the said exporter since 01.04.2010 to 01.04.2017 under Duty Drawback Scheme wherein clearance was made under ARE-1 procedure in terms of the Notification No. 42/2001-Central Excise (N.T.) dated 26.06.2001.
3) Please provide the authentic copies of the duplicate copy [Customs Copy] of the ARE-1's filed by the said exporter since 01.04.2010 to 01.04.2017 against each Shipping Bill(s) / Bill(s) of Export filed under Duty Drawback Scheme by the said exporter. If such duplicate copies of the ARE-1's against each shipping Bill is not available at the Petrapole LCS, clarifications/reasons regarding their nonavailability should be given.
4) Please provide the information regarding the comments made at the time of Appraisement, Examination and issuance of Let Export Order regarding the Shipping Bill(s) where clearance was made under ARE-1 procedure and under Duty Drawback Scheme during the period 01.04.2010 to 01.04.2017 by the said exporter. Please also provide the details like name, designation and SSO ID of the respective Customs Officer(s) who had made such Appraisement / Examination / Let Export Order of the said consignments of said exporter under such ARE-1 procedure. Please provide the EDI system generated copy of such comments against each such shipping bill with full details of the Customs Officer concerned.
5) Please provide information whether the post export mode and procedures adopted by Petrapole LCS Authorities to send the original copy of the ARE-1 to the 16 concern Central Excise Range Office was same as prescribed under Para- 2(iv)(c) of the Notification No. 42/2001-Central Excise (N.T.) dated 26.06.2001 or different regarding each export made by said exporter under Duty Drawback Scheme since 01.04.2010 to 01.04.2017. Please provide information with details like details of the officer concerned who has sent it, mode of the communication and any query raised by anyone in this regard for each such shipping bill. The para-2(iv)(c) of the Notification No. 42/2001-Central Excise (N.T.) dated 26.06.2001 is reproduced below for your convenience-
....The Commissioner of Customs or the other duly appointed officer shall return the original and quadruplicate (optional copy for exporter) copies of application to the exporter and forward the duplicate copy of application either by post or by handing over to the exporter in a tamper proof sealed cover to the officer specified in the application, with whom the exporter has furnished bond or a letter of undertaking....
6) Please provide information regarding the Name, designation and SSO ID of the Officer of the Customs posted at Petrapole LCS at the relevant point of time who was entrusted with and/or responsible for the fulfilment of ARE-1 verification procedure, post export, in terms of the Para- 2(iv)(c) of the Notification No. 42/2001-Central Excise (N.T.) dated 26.06.2001.
7) Please provide the information regarding the mode adopted by the Customs Officers to send the ARE-1 copy, in original, post export, to concern Range Officer of the Central Excise Range Office in terms of the Para- 2(iv)(c) of the Notification No. 42/2001-Central Excise (N.T.) dated 26.06.2001. Please provide information whether such communication was done through registered post or through the exporter concerned.
8) Please provide the information whether any ARE-1 was reported fake by concerned Central Excise Range in course of fulfilment of ARE-1 procedure, post export, sent by Petrapole LCS officials in terms of the Para- 2(iv)(c) of the Notification No. 42/2001-Central Excise (N.T.) dated 26.06.2001. Please provide copy of each such report provided by concerned Central Excise Range corresponding to each ARE-1 used by the said exporter for export under Duty Drawback Scheme under ARE-1 procedure for the period 01.04.2010 to 01.04.2017.
9) Please provide information that in case of violation of ARE-1 verification procedure in terms of Para- 2(iv)(c) of Notification No. 42/2001-Central Excise (N.T.) dated 26.06.2001, whether any officer posted at Petrapole LCS or the Exporter was held responsible till date regarding the exports done by the said exporter under duty drawback scheme for the period 01.04.2010 to 01.04.2017.
1710) Please also provide information that which customs officer posted at Petrapole LCS was entrusted with the duties of verification of ARE-1 / forwarding of ARE- 1 to concerned Central Excise Range Office through the mode of forwarding as prescribed in Para- 2(iv)(c) of the Notification No. 42/2001-Central Excise (N.T.) dated 26.06.2001. Please provide the detailed information of any such officer posted at Petrapole LCS, who was held responsible for non-fulfilment of ARE-1 procedure in terms of Para- 2(iv)(c) of the Notification No. 42/2001- Central Excise (N.T.) dated 26.06.2001 with respect to the exports made by said exporter during the period 01.04.2010 to 01.04.2017 11) If any of the answers regarding information sought at Sl. No. 1, to 10 above are affirmative then please provide the opportunity of inspection of all such original documents as per convenience of the authorities concerned within stipulated timeframe under RTI Act, 2005. Please also allow the applicant to draw joint inspection report in this regard with proper dated endorsement with seal of concerned authorities present at the time of inspection.
12) Please provide the authentic copies of all available documents mentioned at Sl. No. 1 to 10 above.
13) Please provide copies of note-sheets of all files which deal with the fulfilment of ARE-1 procedure, post export, in terms of Para- 2(iv)(c) of the Notification No. 42/2001-Central Excise (N.T.) dated 26.06.2001.
14) Please provide the copies of all correspondences / communications made till date with Hqr. Drawback Section, CC(P), WB, Kolkata regarding verification of ARE-1, post export, in course of disbursal of duty drawback to said exporter for the exports made during 01.04.2010 to 01.04.2017.
15) Apart from the above, the applicant seeks opportunity of inspection of the all documents as sought above as well as information regarding their originality, which is to be provided to the applicant in due course."
Having not received any response from the CPIO, the appellant filed a First Appeal dated 09.05.2021. FAA's order dated 24.06.2021 & 26.06.2021 upheld the reply of CPIO's letter dated 07.06.2021 (not on record).
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through video conference.18
Respondent(s): Shayama Mandal, Asstt. Commissioner & Rep. of CPIO, Directorate General of Vigilance, Indirect Taxes and Customs, East Zonal Unit, Kolkata along with Biman Chandra Patra, Asstt. Commissioner & CPIO, O/o the Commissioner of Customs (Prev.), Kolkata present through video conference.
The Appellant stated that the basic premise of these cases is that he has been implicated wrongly in the averred exports related investigations based on false and fraudulent evidences. He argued that the investigation(s) whatsoever are complete as on date and there is no scope of filing any further complaint before the Court. He insisted extensively on the point that he seeks to know the opinion formed by the concerned vigilance authorities of the material facts/evidences presented to them. Further, arguments of the Appellant were in line with the exhaustive written submissions filed by him prior to the hearing in conjunction with the factual background of the case narrated in the grounds of the Second Appeal, relevant contents of which is reproduced hereunder:
"The information sought is not exempted under Section 24 of RTI Act, 2005, as it is related to corruption allegations levelled on three of the serving officers working under CBIC (Central Board of Indirect Taxes and Customs) who are currently posted in Kolkata CGST & C. Ex. Zone and Bhuvneshwar CGST & C, Ex. Zone. Out of these three officers, one officer was also posted at DRI Kolkata during the period 2012-16. In relation to the case wherein Supplementary SCN was issued by DRI, Kolkata on 18.05.2017, reliance was placed heavily on a forensic copy of a DVD seized on 29.07.2016 and stated to be prepared in absence of its alleged owner Jyoti Biswas at Cyber Forensic Lab, DRI, Kolkata under panchanama dated 18.01.2017. It is not clear whether the Cyber Forensic Lab, DRI, Kolkata is authorised under law to carry out such forensic creations or not at that point of time. After recommendations of the Directorate General of Vigilance, Customs & Central Excise, East Zonal Unit, Kolkata (in short DGoV) vide letter C. No. 37/EZU/VIG/2017/1002 and 37/EZU/VIG/2017/1003, both dated 22.12.2017, corruption charges were levelled and investigation under prevention of Corruption Act, 1988 was initiated against the three officers of CBIC by Anti-Corruption Bureau, Central Bureau of Investigation, Kolkata vide R.C. No. 0102017A0034 dated 23.12.2017 and R.C. No. 0102017A0035 dated 23.12.2017 respectively showing place of occurrence at DRI, 8, Ho Chi Minh Sarani, Kolkata-700071. Vide said letters of DGoV to ACB, CBI, Kolkata, reference of the said DVD seized on 29.07.2016 from the premises of M/s Spack Enterprises Pvt. Ltd, Room No. 403, 4th Floor, 1, Cock Burn Lane, Kolkata-700016 was made and it was also suggested to obtain any documents in this regard from DRI, Kolkata."19
Case-wise extracts of Written submissions of the Appellant:
File No. CIC/DGVCE/A/2021/623736:
"2. The applicant states that, as per point-3 of the letter F. No.- C 14011/27/2017/Ad-V/5134 dated 15.07.2021 [Copy enclosed as Annexure-A] issued by the Central Board of Indirect Taxes and Customs [in short, CBIC], the CBI investigations in the matter of F.I.R. No. 34/2017 and 35/2017, as stated in the order of the First Appellate Authority [in short, FAA] dated 13.05.2021, had already been completed. Since the Criminal investigation is completed, there is no question of impediment of the investigation in terms of the Section 8(1)(h) of the RTI Act, 2005 and disclosure of the information sought is necessary in the instant matter.
3. As per Vigilance Charge Sheet, issued by the Commissioner of CGST & C. Ex., Haldia CGST & C. Ex. Commissionerate to the applicant herein under F. No. II(8)01/Vig./Haldia/ 2018/Pt./37(c) dated 14.02.2022, the alleged DVD purportedly seized on 29.07.2016 was not relied on and the applicant has sought information related to the said seized DVD in the instant RTI Matter and, thus, information sought regarding such document(s) are not related to the vigilance matter which has already culminated into the Charge Memorandum, mentioned supra, against the applicant herein, and, hence, there is no question of impediment in terms of the Section 8(1)(h) of the RTI Act, 2005 and, disclosure of the information sought against the Q. No. 7.2- A, B & C is necessary. Copy of the Annexure-III i.e. the list of documents relied on in the said Charge Sheet dated 14.02.2022 is enclosed as Annexure-B for ready reference.
4. The applicant further states that in the instant matter, the applicant has sought information regarding the opinion formed by the DGoV, Kolkata Authorities and related Notesheets of related files, and, as such formation of opinion by DGoV, Kolkata Authorities in hierarchical structure was based on the manipulated/forged material facts related to the DVD seized on 29.07.2016 [which is manipulated, forged and planted evidence created by DRI Authorities who have deliberately, in a malafide manner, attempted to pass the same as genuine in quasi-judicial and judicial proceedings], as stated in detail in Para 8.2; 8.10 & 8.11 in the Appeal preferred before the Hon'ble CIC . DGoV authorities while acting as de facto complainant has failed to consider the veracity of such manipulated/forged material facts prior to initiation of any proceeding, is abuse of authority by a government servant and, taking shelter under the provisions of Section 8(1)(e) is nothing but safeguarding the act of manipulation/forgery done 20 by other government agency [DRI, Kolkata] and, such illegal act can never be safeguarded under the preview of the Section 8(1)(e) of the RTI Act, 2005 in the name of fiduciary relationship as the basic duty of the complainant/investigator is prima-facie to ascertain the truth alongwith the authenticity of the evidences prior to filing of the criminal complaint and, this onus lies on the Complainant, who, in this case, is DGoV, Kolkata Authorities in the matter of both CBI F.I.Rs, as mentioned by the First Appellate Authority in his order. In criminal jurisprudence, it is the primary duty of the complainant to check the authenticity of the documents/evidence proposed to be used for lodging the F.I.R. and here, transparency on part of DGoV, Kolkata Authorities was compromised on instance of DRI Kolkata Authorities [who were the creator of the forged evidence], and, in order to promote transparency in government organisation to curb the such abuse of authority by the government servants, the information sought are necessary to be provided to the applicant herein, which is in larger public interest.
5. The applicant submits that the FAA has failed to appreciate the lawful submission of the appellant herein that the information sought is opinion of the DGoV, Kolkata Authorities in relation to the act of forwarding of complaints to CBI authorities after taking 'due diligence' of the purported evidences. Such evidences are already in public domain after issuance of the DRI Show Cause Notice dated 18.05.2017. The FAA has failed to appreciate the facts that allegations were brought in said DRI SCN, are based on concocted / forged / manipulated evidences like DVD and alleged conclusions drawn on the basis of assumption, presumption and surmises in contrary to the documents brought on record, some of them are stated in para 8.11 of the instant appeal , and, DGoV, Kolkata Authorities had also done the same act without giving 'due diligence' to the actual facts contained in the documents relied on in said SCN dated 18.05.2017. In the investigation of DRI, Kolkata, there are so many irrefutable infirmities, which have been unearthed by the appellant; some of them are mentioned therein in the Para 8.2 & 8.10 & 8.11 in the 2nd Appeal preferred before the Hon'ble CIC. DGoV, Kolkata Authorities are taking shelter behind the curtain, in guise of Section 8(1) (h) & (e) for the biased opinion formed by them on the basis of fake/forged digital evidence and other manipulated facts, as stated in Para 8.2; 8.10 & 8.11 of the instant appeal and, therefore, safeguarding the use of forged evidence in guise of Section 8(1) (h) &(e) of the RTI Act, 2005 by a Government Agency which had already impacted badly to the life and liberty of the applicant herein and, it is clear violation of the fundamental rights of the applicant, while the officers who allowed the alleged exports under fake ARE-1's and apparent infirmities in clear violation of law and laid down guidelines were apparently not indicted."
21File Nos. CIC/CCUKL/A/2021/617380+ CIC/CCEKL/A/2021/617551/CCUKL+ CIC/CCUKL/A/2021/617555 "2. The applicant states that in the instant matter, the respondent authorities have filed complaint in terms of Section 200 of the Cr.P.C. in the court of Ld. A.C.J.M, Bongaon, North 24 Paragana, West Bengal on 18.02.2022. Also, there is no provision under Law to file Supplementary Complaint under the said Section 200 of the Cr.P.C. It transpires that the investigation in name of proposal for filing prosecution/internal investigation, as stated by the FAA in his order date 21.04.2021 has been completed and there is no hindrance in terms of Section 8(1)
(h) of the RTI Act, 2005 in disclosing the information sought, and, the applicant accordingly pray to supply the same.
3. The applicant further states that cognizance of the said complaint has not been taken till date as per details available in public platform (E Courts website). Copy of said Complaint has not yet been received. From this only it is clear that purported investigation in the instant matter is completed and there is no further scop of investigation as there is no provision for issuance of Supplementary Charge-Sheet in terms of Section 200 of the Cr.P.C. and, hence, withholding of information in the name of purported investigation has got no legal basis as on date. However, the applicant is trying to obtain certified copies of the complaint filed and the requisite list of documents relied upon and non-relied documents under Rule 91A of Calcutta High Court Criminal (Subordinate Courts) Rules, 1995 namely, " 2A. Supply of documents to the accused [Copy of the Notification No. 2301 - G - l4th July, 2022 is enclosed], from where the details of the document relied on and non-relied documents as well, can be ascertained and the applicant will be able to defend instant matter properly and for this purpose the applicant request your goodself to adjourn the proceedings with direction to the Respondent Authorities to serve the copy of the Complaint filed on 18.02.2022 so that it can be ascertained that which document has been relied on and which has not, and, accordingly, proper argument can be given in support of the instant RTI Appeal preferred by the Applicant herein.
4. Since the complaint has been filed in the court of law in terms of Section 200 of CrPC, investigation is completed, thereby, there is no question of impediment of the investigation in terms of the Section 8(1)(h) of the RTI Act, 2005 and disclosure of the information sought is necessary in the instant matter and, accordingly, the prayer is made to disclose the information."
22File Nos. CIC/CCUKL/A/2021/645044+ 645072+ 645088+ 645090 "2. The applicant submits that the CPIO, Petrapole LCS had not provided information within the time limit as prescribed under the Act ibid. Considering it as denial of information, the appellant had preferred an appeal on 09.05.2021 before the First Appellate Authority [in short, FAA] through online mode. In the meantime, the CPIO had denied providing information wide e-mail dated 07.06.2021. Also, the FAA has declined to provide the information citing the provisions of the Section 8(1) (d), (h) & (j) of the RTI Act. It is pertinent to mention here that all exports had been made on the basis of fake/forged export documents and for such forged act, the provisions of Section 8(1)(d) & (j) cannot be applied. Also, the FAA has erred to justify the violation of prescribed time limit for providing such information as done by CPIO in the instant case as genuine. The violation of time limit for providing information declared as genuine by the FAA is mockery of the RTI Act and the prayer of the appellant herein to provide all information is bonafied and in public interest as mentioned supra and it be provided free of cost as mandated under the Act ibid.
3. The applicant states that in the instant matter, the respondent authorities have filed complaint in terms of Section 200 of the Cr.P.C. in the court of Ld. A.C.J.M, Bongaon, North 24 Paragana, West Bengal on 18.02.2022. Also, there is no provision under Law to file Supplementary Complaint under the said Section 200 of the Cr.P.C. It transpires that the investigation in name of proposal for filing prosecution/internal investigation, as stated by the FAA in his order date 21.04.2021 has been completed and there is no hindrance in terms of Section 8(1)
(h) of the RTI Act..."
Similarly, Shayama Mandal, Asstt. Commissioner & Rep. of CPIO desired for the written submissions filed by their office to be taken on record, wherein Deepa Sharma Ray, Asstt. Commissioner (Vig.) & CPIO has inter alia succinctly put forth the myriad dissatisfaction of the Appellant as under:
"(i) RTI application was filed against the 'abuse of the authority' by a public servant; acting in his public capacity, disclosure serves the public interest;
(ii) The First Appellate Authority (FAA) upheld denial of information without appreciating the facts that complaints were finalized by DGoV, EZU on the basis of forged electronic evidence;23
(iii) The investigation was carried out on unfair manner and fabricating false evidences and the CPIO ought to provide true information in the public interest;
(iv) The FAA failed to appreciate that most of the documents are in the public domain and information sought is restricted to evaluation of evidences for forwarding the complaint to the CBI on 22.12.2017 and hence there involves no fiduciary relationships;
(v) The FAA has erred in not taking the legal submissions of the appellant and due to investigation by the CBI, the appellant's life and liberty has been impacted;
(vi) The FAA has erred in not taking the legal submissions of the appellant as decided in the W.P.(C) No.288/2009;
(vii) The FAA has erred to consider the lawful submission of the appellant on forensic report and related communications w.r.t. electronic evidences i.e. the DVD;
(viii) The FAA rejected the application seeking information in routine manner citing section 8(1)(h) of the RTI Act though the matter attained finality on
22.12.2017 while forwarding the complaints to the CBI;
(ix) The FAA has wrongly conceived that information was sought by the appellant in relation to Vigilance Enquiry whereas the RTI application was actually related to evaluation of the evidences prior to forwarding the complaints to the CBI;
(x) The FAA has rejected the appeal without application of mind citing section 8(1)(h) of the RTI Act while the process related to the complaint has been finalized on 22.122017;
(xi) Declining the request for information by the FAA without mentioning it would impede the process of investigation is against the purpose of the RTI Act;
(xii) Records received from the court proceedings appear to indicate that the DGoV has initiated the complaints and the question of fiduciary relationship cannot arise therefore action of the FAA is arbitrary and does not promote transparency and accountability;
4. It is humbly submitted that the grounds for appeal should have been restricted to information and documents sought for and not related to the evidences and its merit on the pending Departmental proceedings under CCS (CCA) Rules, 1965.
5. In the light of above, it is submitted that-
24(i) Denial of information to the Appellant under the RTI Act, 2005 under Section 8(1)(h) of the RTI Act, 2005 are supported by the order of the CIC in the matter of CIC/AT/A/2007/00007 case of Shankar Sharma & Ors Vs DGIT, (Copy enclosed) wherein it has been observed that the term investigation used in Section 8(1)(h) of the RTI Act should be interpreted broadly and liberally. The technical definition of 'investigation' one find in criminal law cannot be imported in the RTI Act. Investigation would mean all actions of law enforcement, disciplinary proceedings, enquiries, adjudications and so on. Logically, no investigation could be said to be complete unless it has reached a point where the final decision on the basis of that investigation is taken, It would be a misnomer to hold that investigation in matters such as this, the moment the investigating officer submits his report to the competent authority spells the end of investigation,
(ii) It has further been emphasized in the case of K.S. Prasad vs SEBI {CIC/AT/A/2007/00234} that as soon as an investigation or an enquiry by a subordinate enquiry officer in civil and administrative matters comes to an end and the investigation report is submitted to a higher authority, it cannot be said to be the end of investigation, which can truly be said to be concluded only with the decision by the competent authority.
(iii) It is also felt to be relevant to rely on the order of the Hon'ble Commission in the matter of Abhijit Bhawal Vs Ministry of Environment & Forests [CIC/MOENF/A/2019/1576220, wherein it has been held that the term investigation, in view of the above ratio, clearly indicates that the term "investigation" used in Section 8(1)(h) of the RTI Act requires a wider interpretation and shall be read as inclusive of enquiry conducted during disciplinary proceedings.
5.1 As such considering the judgments of the above mentioned citations, it appears that denial of the information under Section 8(1)(h) of the RTI Act,2005 is justified.
6. However, on relook to the information & documents sought for by the appellant in Para 7.2 of the present appeal petition, it is submitted that:
(i) Answer to the information sought is already available with appellant since admittedly the appellant has accepted that the information is in public domain;
(ii) As per para 5.2 of the CVC's Vigilance Manual-2017 as amended from time to time, it has been envisaged that once a case has been referred to and taken up by the CBI for investigation, further investigation should be left with them and a parallel investigation by the Departmental agencies should be avoided."25
Decision:
The Commission has perused the length and breadth of the gamut of documents placed on record by the Appellant through the instant Appeal(s) and the sum and substance of the records coupled with his arguments during the hearing is to verify 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 he is looking for the opinion/material based on which the authorities have allegedly framed him while admitting to the fact that he already has access to a multitude of the investigation related documents to negate the invocation of Section 8(1)(h) of the RTI Act 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 or 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 CBI 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,--26
(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 Complainant'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:
"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) 27 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 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 by way of an empathetic consideration a liberal interpretation could be accorded to the instant RTI Applications, the sheer enormity of its contents 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:
28"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 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 SCC781 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 29 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 '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), that in itself run into hundreds of pages each, 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.30
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 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 discussion, 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 (सरोजपुनहािन) हािन) Information Commissioner (सूचनाआयु ) 31 Authenticated true copy (अिभ मािणत स यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 32 Sl. No. File No. 1 CIC/DGVCE/A/2021/623736 2 CIC/CCUKL/A/2021/617380 3 CIC/CCUKL/A/2021/617389 4 CIC/CCUKL/A/2021/617515 5 CIC/CCUKL/A/2021/617518 6 CIC/CCUKL/A/2021/617524 7 CIC/CCEKL/A/2021/617551/CCUKL 8 CIC/CCUKL/A/2021/617555 9 CIC/CCUKL/A/2021/635688 10 CIC/CCUKL/A/2021/645044 11 CIC/CCUKL/A/2021/645072 12 CIC/CCUKL/A/2021/645088 13 CIC/CCUKL/A/2021/645090 33