Central Information Commission
M Senthilkumar vs Chief Commissioner Of Customs ... on 15 September, 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 No : CIC/CCCPC/A/2021/631049
CIC/CUSCZ/A/2021/632356
M SENTHILKUMAR ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
1. Assistant Commissioner
Office of the Commissioner
of Customs (Preventive),
RTI Cell, No.1 Williams Road,
Cantonment, Tiruchirappalli-620001.
2. Assistant Commissioner Office
of the Commissioner of GST and
Central Excise, RTI Cell, No. I
Williams Road, Tiruchirappalli - 620001. .... ितवादीगण /Respondent(s)
Date of Hearing : 13/09/2022
Date of Decision : 13/09/2022
INFORMATION COMMISSIONER : Saroj Punhani
Note: The above referred Appeal(s) have been clubbed for decision as these are
based on the same subject matter of RTI Applications.
Relevant facts emerging from appeal:
RTI application filed on : 05/02/2021 & 05/02/2021
CPIO replied on : 02/03/2021 & 23/03/2021
First appeal filed on : 19/03/2021 & 15/04/2021
First Appellate Authority order : 19/04/2021 & 27/04/2021
2nd Appeal/Complaint dated : NIL
CIC/CCCPC/A/2021/631049
CIC/CUSCZ/A/2021/632356
1
Information sought:
The Appellant filed an RTI application dated 05.02.2021 seeking the following information;
I. "Please supply attested photo copy of the following: -
1. (a) Orders, if any issued, prescribing duties and responsibilities to the Inspector and Sepoy doing duty at the Control Room; (b) Registers and records to be maintained by the Inspector and Sepoy doing duty at the Control Room;
2. (a) letter seeking sanction for prosecution in RC MA1 2015 A 0015 OF CBI/ACB/ CHENNAI addressed to the Chief Commissioner of Customs (Preventive), Trichy ultimately received at the Office of the Commissioner of Customs, (Preventive), Trichy; (b) investigation Report of CBI and (c) Draft Sanction Order if enclosed with the said letter;
3. Report received by the Commissioner, Customs Preventive, Trichy about theft of gold from the strong room of the Seized Goods Godown, Customs Division, Trichy noticed on 18-04-2015;
4. Communication of CBI dated 24-04-2015 calling for documents in response of which documents were sent to DSP CBI vide C.No.II/39/09/2015-VIG dt 07-05-2017;
5. Document by which sealed cover containing duplicate Keys (Seven Keys) of the Strong Room of Seized Goods godown, Trichy, was received by Shri. Sukhjit Kumar, Joint Commissioner along with the name and designation of the officer who was in possession of those duplicate keys and sent them with the said communication; (which was ultimately sent to the DSP CBI as item No. xviii vide C.No. II/39/09/2015-VIG Dated:
18.05.2015)
6. GFR 33 Assumption of Charge on 13-11-2014 by Shri A. Muthukrishnan as Assistant Commissioner, Customs Division, Trichy.
[Note under GFR 33 mandates, "Separate Certificate (as per form amended) also to be used where transfer / assumption of charge involves responsibilities for Cash, Stores, etc.
7. Certificate of transfer of charge GFR 33 (Appendix) for having made over by the relieved officer Shri M.K. Parashivamoorthy and assumed charge by the relieving officer Shri A. Muthukrishnan, of office of the 2 Assistant Commissioner of Customs Division, Trichy and responsibility of the duplicate set of keys of the Strong Room of the Seized Goods Godown, Customs Division, Trichy and the Government Brass Seal "TIRUCHY, ASHOKA EMBLEM 5, CUSTOMS & EXCISE, INDIA";
8. GFR 33 Assumption of Charge by Shri M. Venkatesulu, joined as Assistant Commissioner, Customs Division, Trichy.
9. Certificate of transfer of charge GFR 33 (Appendix) for having made over by the relieved officer Shri A. Muthukrishnan and assumed charge by the relieving officer Shri M. Venkatesulu, of the office of the Assistant Commissioner of Customs Division, Trichy and responsibility of the duplicate set of keys of the Strong Room of the Seized Goods Godown, Customs Division, Trichy and the Government Brass Seal "TIRUCHY, ASHOKA EMBLEM 5, CUSTOMS & EXCISE, INDIA";
II. Please furnish the following information: - (1) Were private security personnel manned the main entrance/exit of the office campus at No.1, Williams Road, Trichy during the period from the month of November, 2014 to April, 2015. (b) Were they doing 24 x 7 duty? (c) Do private security personnel continue to do duty? (d) Please provide an attested photocopy of the extract of the contract containing the responsibilities of the security guards. (e) Please supply an attested photocopy of the Front page and one inner page of Register containing entries of In and Out of visitors / vehicles' made by the duty security personnel.
III. Please furnish the following information: - (1) Were CCTV Cameras installed in the office/residential campus at No.1, Williams Road, Trichy in the period between the month of November, 2014 to April, 2015? (b) Was any camera installed focusing on the Main Entrance / Exit Gate of the office and the open area where departmental vehicles, seized / confiscated vehicles were parked?
IV. At the close of office hours does the Care Taker receive keys from the various sections of the office situated at No.1, Williams Road, Trichy?
V. Which is correct between the following two? (a) Office of the Commissioner of Customs, (Preventive), Trichy or (b) Office of the Commissioner of Customs, Trichy."
CIC/CCCPC/A/2021/631049 3 The CPIO furnished a reply to the appellant on 02.03.2021 stating as follows:-
"..........the information / documents sought by you in RTI application under Para I(2)(a), I(2)b, 1(2)c & 1(4) which is related to this office is being considered as Private Document as per Section 75 of the Indian Evidence Act, 1872, the same could not be disclosed as per Section 8(1)(j) of the RTI Act, 2005 and there is no larger public interest which justified the disclosure of such information. In respect of information sought under Para V. the correct one is "Office of the Commissioner of Customs (Preventive), Trichy'."
Being dissatisfied, the appellant filed a First Appeal dated 19.03.2021. FAA's order dated 19.04.2021 further denied the information under section 8(1)(h) of the RTI Act, 2005.
In case no. CIC/CUSCZ/A/2021/632356 -
The CPIO furnished a reply to the appellant on 23.03.2021 against points No. I (1a), II, III & IV of the RTI application.
Being dissatisfied, the appellant filed a First Appeal dated 15.04.2021. FAA's order dated 27.04.2021 held as under:-
"I order that the decision of the CPIO with regard to point II(1)(d) is set aside and order to furnish the required information. However, the decision of CPIO with regard to point II(1)(e) is upheld."
Feeling aggrieved and dissatisfied with the non-compliance of FAA's order, the appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through video-conference.
Respondent no. 1: P. Gauri, Asst. Commissioner & CPIO along with Advocate Umesh Rao present through video-conference.
Respondent no. 2: Meenakshi Sundaram, Asst. Commissioner & CPIO present through video-conference.
The Appellant at the outset while narrating the factual background in the matter submitted that in a case of alleged theft of gold from the strong room of the 4 seized goods godown, he has been implicated by the Public Authority as one of the offenders. In support of his arguments, he submitted a written submission, relevant extracts of which are reproduced below in verbatim -
" xxxxxxxx .....Information requested for is to prove my innocence (information seeker) Theft of gold from the strong room of the seized goods godown was noticed on 18-04-2015. Immediately, I informed the Assistant Commissioner, Customs Division, Trichy since I was the custodian of the seized goods deposited in the godown. I have not stolen them and there was no dereliction of duty on my part. But the following complaint was given to CBI who registered a case under Prevention of Corruption Act, 1988 and I came to be thus implicated in the case.
The strong room is under double lock key system. One part of the first set of keys (three keys) was in the possession of Shri. Mohammed Farook, Superintendent and the remaining part of the set (two keys) was in the possession of Shri. Senthil Kumar, Inspector. Strong room could be opened only with the help of these two sets of keys (total five keys) kept by the above said two officers. No visible signs of tampering of the locks of the strong room or forceful entry into the strong room have been noticed. ln view of the above, you are requested to register a case in the matter and investigate the same to recover the valuable property stolen from the Seized Goods Godown, Trichy and bring the culprits to the book.
Vital documents which were requested for in my application dated 05-02-2021 are in the custody of the department and were denied unjustly. The information requested for from the department are crucial to prove my innocence. In spite of the above clear the legal propositions, the sanction order issued in my case (information seeker) is silent about the documents received from prosecution.
It is an accepted principle that both the prosecution and the defence fight the case in a level playing field. In the present case all the documents are with the department only. In order to effectively defend my case which is foisted on me I requested for the information. I came to be entangled in the case due to ineffective investigation with deliberate commissions and omissions of officials.
The theft of gold from the strong room of customs seized goods godown, Trichy in 2015 is not a stray incident. In the previous year alone (2014) four incidence of theft from customs strong room situated within the IG Airport, 5 Delhi was reported in the media. Now, 59 kg of seized gold missing from IGI airport vault | Delhi News - Times of India (indiatimes.com) In the present case, the theft was noticed at about 10.30 AM on 18-04-2015 and was instantaneously informed by me over phone to my AC. But it is learnt that complaint was filed with the Trichy Cantonment Police Station, which is situated within a few meters from the office, only at about 9.30 PM on 18-04- 2015 and immediately another letter was handed over to the effect that no action need be taken on the complaint since the case was referred to the CBI. But the complaint to CBI was dated 19-04-2015 which reached CBI only at about 4 PM on 21-04-2015. These delays appear to be due to manipulative efforts taken by somebody to protect the thief.
The fact of availability of a full set of duplicate keys was conspicuously omitted to be included in the complaint to CBI. Moreover, there were cases where keys were stolen and used in the theft. In such a situation factors such as use of duplicate keys and stolen keys ought to have been included in the complaint / FIR which was not done, may be in order to protect the thief. I am unable to reveal all the commissions and omissions since that may be prejudicial to my defence in the trial.
The order of sanction did not make it evident that the CBI has sent the entire relevant record to the sanctioning authority including the statements of witnesses, recovery memos, draft charge sheet and all other relevant material which may tilt the balance in my favour on the basis of which, the competent authority may refuse sanction.
The information sought for by me vide applicated dated 05-02-2021 is in the exclusive domain of the department and withholding the information would affect my interest to present an effective defence xxxxxxxxxxxxx..."
In case no. CIC/CCCPC/A/2021/631049 -
The Appellant expressed his dissatisfaction with the CPIO's reply against information sought for at Para I(2)(a), I(2)b, 1(2)c & 1(4) of RTI Application. He further stated that since the information sought for pertains to his case only therefore, denial of information by the CPIO and FAA with contradictory pleas under Section 8(1)(j) and 8(1)(h) of RTI Act was not tenable.
The Advocate of the CPIO/Respondent no. 1 herein while relying on his written submission dated 12.09.2022 reiterated the denial of information. In rebuttal to Appellant's contentions, he explained that there is no non-obstante clause in the RTI Act which may disallow the claim of applicability of non-exemption of 6 information by the CPIO and FAA in different manner. He further apprised the Commission that as regards the subject matter of theft of gold, the departmental disciplinary proceedings as also CBI investigation in the matter are under process; therefore, the information has been properly denied by the FAA by invoking Section 8(1)(h) of RTI Act.
In case no. CIC/CUSCZ/A/2021/632356 -
The Appellant in the instant Appeal restricted his arguments to para II (1)(e) only expressing his dissatisfaction to the fact that the CPIO has wrongly denied the information on the plea of non-availability of records/register' containing information of 'In and Out' visitors/vehicles maintained by the duty personnel. He further contested that such information was required in order to corroborate evidence in support of his defence. In this regard, the Commission counselled the Appellant that the records of entry/exit of third party's and/or any vehicle impinges on their privacy and thus, cannot be divulged in view of Section 8(1)(j) of RTI Act.
The Respondent no. 2 submitted that a reply along with factual position has already been furnished to the Appellant. He further submitted that such records were not maintained by their office and rather the actual custodian was the GST wing of their Department which is located in the same premises.
Decision:
In case no. CIC/CCCPC/A/2021/631049 -
The Commission upon a perusal of records and submissions of both the parties notes that the main premise of instant Appeal was non -receipt of complete material information in response to Para I(2)(a), I(2)b, 1(2)c & 1(4) of RTI Application. Against which the Respondent no. 1 clarified the factual position that since the case is sub judice in the CBI court; disclosure of information sought for would definitely impede the process of investigation. Therefore, the Commission finds no infirmity in the denial of information by the FAA in view of Section 8(1)(h) of RTI Act as the contents of information sought for in itself shows that disclosure of such information would apparently impede the process of investigation considering the fact that the Appellant himself has been implicated as one of the offenders in this case.
In view of the above, no further intervention of the Commission is warranted in the matter.7
In case no. CIC/CUSCZ/A/2021/632356 -
In furtherance of hearing proceedings, the Commission observes from perusal of records that the core contention raised by the Appellant in the instant Appeal was non-receipt of desired information in response to Para II (1)(e) of RTI Application. In this regard, the Commission observes upon scrutinizing the contents of information sought for at this point that details of entries of ' In and Out' of visitors / vehicles' maintained by the duty security personnel contains the elements of personal information of third parties which is hit by Section 8(1)(j) of RTI Act. The same can be garnered from a bare perusal of the text of Section 8(1)(j) of the RTI Act as under:
"8. Exemption from disclosure of information.--
(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, xxxx
(j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information;.."
In this regard, attention of the Appellant is also drawn towards a judgment of the Hon'ble Supreme Court of India in the matter of Central Public Information Officer, Supreme Court of India Vs. Subhash Chandra Agarwal in Civil Appeal No. 10044 of 2010 with Civil Appeal No. 10045 of 2010 and Civil Appeal No. 2683 of 2010 wherein the import of "personal information" envisaged under Section 8(1)(j) of RTI Act has been exemplified in the context of earlier ratios laid down by the same Court in the matter(s) of Canara Bank Vs. C.S. Shyam in Civil Appeal No.22 of 2009; Girish Ramchandra Deshpande vs. Central Information Commissioner & Ors., (2013) 1 SCC 212 and R.K. Jain vs. Union of India & Anr., (2013) 14 SCC 794.The following was thus held:
"59. Reading of the aforesaid judicial precedents, in our opinion, would indicate that personal records, including name, address, physical, mental and psychological status, marks obtained, grades and answer sheets, are all treated as personal information. Similarly, professional records, including qualification, performance, evaluation reports, ACRs, disciplinary proceedings, etc. are all personal information. Medical records, treatment, choice of medicine, list of hospitals and doctors 8 visited, findings recorded, including that of the family members, information relating to assets, liabilities, income tax returns, details of investments, lending and borrowing, etc. are personal information. Such personal information is entitled to protection from unwarranted invasion of privacy and conditional access is available when stipulation of larger public interest is satisfied. This list is indicative and not exhaustive..."
Having observed as above, the merits of CPIO's reply on the said point on the plea of non-availability of such records cannot be called into question.
Thus, no relief is pertinent in the instant Appeal.
The appeal(s) are disposed of accordingly.
Saroj Punhani (सरोजपुनहािन) हािन) Information Commissioner (सूचनाआयु ) Authenticated true copy (अिभ मािणत स#यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 9