Central Information Commission
Kriplani M vs Central Board Of Excise And Customs - ... on 20 July, 2017
CENTRAL INFORMATION COMMISSION
2nd Floor, August Kranti Bhawan
Bhikaji Cama Place, New Delhi-110066
website:cic.gov.in
Complaint No.:-CIC/CBECE/C/2016/308649-BJ-Interim I
Complainant : Mr. Kriplani M.
863, 7th Main, 3rd Cross, H.A.L. 2nd Stage
Indirangar, Bangalore-560008
Respondent : I. CPIO & Dy. Commissioner (Admn.)
O/o. the Pr. Commissioner of Customs
Airport & Air Cargo Complex
Commissionerate, Devenahalli, Bangalore-
560300
II. The Principal Commissioner of Customs
Air Cargo Complex, Menzies Aviation
Bobba Cargo Terminal
Devanahalli, Bengaluru-560300
III. The Chief Commissioner of Customs
C. R. Buildings, Queens Road,
Bangalore - 560 001
Date of Hearing : 26.05.2017, 17.07.2017
Date of Decision : 29.05.2017, 19.07.2017
Date of filing of RTI applications 05.08.2016
CPIO's response 15.09.2016
Date of filing the First appeal Not on Record
First Appellate Authority's response Not on Record
Date of diarised receipt of complaint by the 30.09.2016
Commission
ORDER
FACTS:
The Complainant in his RTI application sought information on 05 points regarding complete ledger extract of Gold (including coins, bars, jewellery) that had been seized or left behind for non-payment of duty by passengers during 2011-2016, amount of Gold seized or left behind collected by passenger after payment of duty during last five years, amount of Gold sent to Head Quarters or Government Mint during 2011-2016, details of Gold missing/ Stolen/ Pilferage during 2011-2016, information/ extract of all document pertaining to seizure, left behind Gold, unclaimed Gold, etc. The CPIO and Dy. Commissioner (Admin), vide its letter dated 15.09.2016 provided a point wise response to the Complainant and denied information on point no. 03 of the RTI application as per Section 8 (1) (h) of the RTI Act, Page 1 of 7 2005. Dissatisfied by the response of the CPIO, the Complainant approached the Commission.
HEARING:
Facts emerging during the hearing on 26.05.2017:
The following were present:
Complainant: Mr. Kriplani M. (M: 9845024807) through VC; Respondent: Absent;
The Respondent remained absent during the hearing, despite prior intimation. The Commission was in receipt of a letter from the Complainant dated 22.05.2017 wherein it was stated that similar grounds were raised in previous complaints disposed by the Commission vide order dated 08.02.2017 which were preferred for judicial review by way of filing a Writ Petition 7860/2017 in the Hon'ble High Court of Karnataka wherein notice was issued to the Commission and matter was pending consideration before the Hon'ble High Court of Karnataka. The Complainant in the aforementioned written submission requested to keep his Complaint in abeyance since the Hon'ble High Court was yet to decide on the matter. On a query from the Commission regarding whether any order forbidding the Commission to hear other matters of the Complainant was issued by the Hon'ble High Court of Karnataka, the Complainant replied in the negative and submitted that he was willing to contest his claims in the present matter.
Explaining the background of the case, the Complainant alleged that there had been rampant pilferage/ theft/ criminal misconduct for personal gain committed by Custom Officials under the Bangalore International Airport Commissionerate wherein gold seized or left behind by passengers was deemed to have been fraudulently pilfered/ stolen by customs officials during FY 2011-2016. It was submitted that vide his RTI application he had sought information regarding official/ public records and no personal information relating to a third party was sought by him. It was argued that the CPIO vide its letter dated 15.09.2016 had provided incomplete and misleading information to him with a malafide intention to protect the corrupt public servants. On a query from the Commission regarding the action taken by the Principal Commissioner of Customs, Bangalore subsequent to the direction of the Commission in CIC/SB/C/2016/000072- BJ + CIC/SB/A/2016/000098-BJ dated 08.02.2017, the Complainant submitted that no action apart from replacing the earlier CPIO with a new one was taken, till date.
The Commission observed that the issues raised by the Complainant in the present RTI application pertained to seizure of Gold (including coins, bars, jewellery), payment of duty by passengers and other related issues whereas the issues raised in the RTI applications which were the subject matter of adjudication before the Commission in CIC/SB/C/2016/000070/BJ + CIC/SB/C/2016/000084/BJ dated 08.02.2017 and CIC/SB/C/2016 /000072/BJ + CIC/SB/C/2016/000098/BJ dated 08.02.2017 related to Page 2 of 7 completely different issues wherein information regarding Mr. C. Anil, ADC (Addl. Commissioner of Customs- Air Cargo Complex, Bangalore) and Mr. Sujith Sompur, (Dy. Commissioner of Customs, Air Cargo Complex, Bangalore) respectively was sought. Also, the RTI applications in the decisions of the Commission impugned before the Hon'ble High Court of Karnataka in W.P. No. 7860 of 2017 were filed by Ms. Roopa Devi M. whereas the name of RTI applicant in the present matter was Mr. Kriplani M. INTERIM DECISION:
Considering the facts of the case and the submissions made by the Complainant, the Commission directs the Principal Commissioner of Customs, Bangalore, to conduct a detailed inquiry into the matter forthwith and submit its inquiry report to the Commission under intimation to the Complainant within a period of 15 days from the date of receipt of this order failing which it shall be presumed that there is nothing more to add and appropriate action in accordance with the provisions of the RTI Act, 2005 would be taken by the Commission. The Principal Commissioner of Customs, Bangalore is also instructed to be present before the Commission on the next date of hearing before the Commission.
The Dy. Registrar is accordingly instructed to fix a short date of hearing in the matter.
Note: Subsequently, the Dy. Registrar, vide its letter dated 23.06.2017 fixed 17.07.2017 as the next date of hearing in the matter.
HEARING:
Facts emerging during the hearing on 17.07.2017:
The following were present:
Complainant: Mr. Kriplani M. (M: 9845024807) through TC; Respondent: Mr. Shiva Prakash Baddi, Dy. Commissioner/CPIO (M: 8088192604) through TC;
Due to technical issues VC at Bengaluru could not be connected and hence both the parties were heard through Teleconferencing. The Commission at its last hearing had directed the Pr. Commissioner (Customs & Excise), Bangalore to conduct a detailed inquiry and submit its inquiry report to the Commission under intimation to the Complainant, within a period of 15 days. The Pr. Commissioner (Customs) was also directed to be present before the Commission at today's hearing. In its reply, the Respondent referred to letter dated 17.06.2017 and submitted that the inquiry in the matter had been completed and the grievance of the Complainant had been resolved. He repeatedly referred to the letter dated 17.06.2017 written by the Commissioner of Customs, Bangalore.
In its written submission dated 29.06.2017, the Complainant while referring to the judgement of the Hon'ble Supreme Court of India in Chief Information Page 3 of 7 Commissioner v. State of Manipur and Anr. Civil Appeal No. 10787-10788 of 2011 (Arising out of SLP (C) No. 32768-32769/ 2010) dated 12.12.2011 substantiated on the provisions of Section 18, 19 and 20 of the RTI Act, 2005. It was submitted that the procedures contemplated under Section 18 and 19 of the Act were completely different from one another and in his present complaint as well as previous complaint where final decisions were announced which had been preferred for judicial review in WP 7860/ 2017 at the Hon'ble High Court of Karnataka, Section 18 read with Section 20 of the RTI Act, 2005 was invoked seeking registration of complaint, inquiry and punishment to the guilty information officer who had denied/ provided false information. It was also submitted that they had never invoked Section 19 seeking information by way of an Appeal. The Complainant also stated that both Mr. Sujith Kumar P Sompur- Dy. Commissioner of Customs and Mr. D. Anil- Additional Commissioner of Customs on whom information was sought for had considered and taken upon themselves to deny information as well as argue and protect their own interests. It was mentioned that the two individuals mentioned above had clash of interest and to prejudice the case had shown sinister mala-fide intentions to shield one another and escape prosecution/punishment by withholding information pertaining to themselves. The Complainant stated that it was substantiated before the Commission that the actions of the information officers were mala fide in nature and the information officers had committed a cardinal sin by denying information to shield themselves as well as their brethren departmental colleagues. It was submitted that the Commission should have reprimanded them with fine, penalty and departmental/disciplinary actions as contemplated and provisioned under Section 18 read with Section 20 of the RTI Act, 2005. As regards the present Complaint, it was submitted that the information sought was clearly incomplete, vague, misleading, etc which was clearly substantiated before the Commission at the first hearing itself and malafide intention of the officials involved were also established. However, the Commission had done everything possible except to initiate punishment/ action on the guilty. It was submitted that the Commission did not have the jurisdiction/option to direct the guilty officers to provide information, etc as the Complaint was constituted invoking only the provisions of Section 18 read with Section 20 of the RTI Act, 2005. It was further stated that the Commission should act as a deterrent by imposing exemplary cost and punishment and send out a strong message that the guilty would be punished and any infringements would cost them dearly. While responding to the submission of Mr. P. Anjani Kumar, Commissioner of Customs dated 17.06.2017, the Complainant submitted that incomplete information was provided probably to escape punishment and to prove that information was provided which was denied at the first instance. It was further submitted that the Commissioner of Customs (Mr. P. Anjani Kumar) who had purportedly written the letter was neither the Principal Commissioner nor the Information Officer and the very fact that brief/ incomplete information had been provided amply established the fact that information had been denied at the first instance with a malafide intention to shield the accused corrupt officials. During the course of hearing, the Complainant also alleged that there was a malafide attempt by the Customs officials in connivance with the NIC team to ensure that the access to VC was not provided. It was argued that there was a deliberate and malafide Page 4 of 7 design too disrupt the Commission's proceedings in the matter because of vested interests.
The Commission also perused the written response submitted by Additional Commissioner of Customs, Bangalore dated 05.06.2017 wherein it was stated that the notice of hearing for the present matter was not received by their office. It was also submitted that the RTI application dated 05.08.2016 was replied vide letter dated 15.09.2016 providing details of quantum of gold left behind by passengers. However, in terms of Section 8 (1) (h) and Section 11 of the RTI Act, 2005 certain information could not be divulged as prosecution proceedings under Customs Act, 1962 were in progress and it involved disclosure of third party information which could not be disclosed under the provisions of the RTI Act, 2005. It was also stated that instead of approaching the FAA in the matter, the Complainant directly approached the Commission. The Respondent further submitted that the Complainant was the proprietor of M/s Next Gen Technologies at Bengaluru, an import firm whose goods were intercepted by Customs for a case of smuggling and an offence case was registered against him. It was also explained that a Show Cause Notice was issued proposing to confiscate the goods and for imposition of penalty and a case was pending before the Hon'ble High Court of Karnataka. It was also submitted that the Principal City Civil and Sessions Court by its order dated 21.11.2015 had also granted him anticipatory bail with certain conditions and being agitated by actions initiated against the importer company by the Customs Department in the case of smuggling, the Complainant had been making baseless allegations and filing frivolous applications against the department and the officers by misusing the provisions of RTI Act, either directly by him or through his employees, one of which was accused under COFEPOSA.
The Commission was also in receipt of a written submission from the Commissioner (Mr. P. Anjani Kumar), O/o the Pr. Commissioner of Customs, Bangalore dated 17.06.2017 wherein it was re-iterated that notice of hearing for the present matter was not received by their office and that instead of approaching the FAA in the matter, the Complainant directly approached the Commission. It was also submitted that as desired by the Commission, a report, in respect of point no. 03 of RTI Application dated 05.08.2016, was provided wherein it was stated that total amount of Gold deposited in Disposal Section of Headquarter was 269.184 Kgs from period 2011-16.
On a query from the Commission regarding the reasons for not approaching the FAA in the matter, the Complainant expressed his complete lack of faith and distrust in the First Appeal Mechanism within the Public Authority and narrated his personal experience in several other matters where the FAA had passed non-reasoned orders concurring with the reply of the concerned CPIO which had never been received by him.
It was observed by the Commission that the report of the inquiry ordered in the last hearing dated 29.05.2017 had still not been submitted and neither was any reference made about it. The Respondent consistently repeated about the letter dated 17.06.2017 written by Mr. P. Anjani Kumar, Page 5 of 7 Commissioner of Customs, Bangalore. On constant prodding about the name and details of the Pr. Commissioner entrusted with the inquiry report, it was hesitatingly informed that Mr. R. B. Tiwari, Chief Commissioner of Customs, Bangalore was the in-charge Pr. Commissioner when the inquiry was ordered. The Commission was appalled to learn that despite instructions of the Commission the Sr. Official had not submitted his inquiry report in the entire matter leaving room for suspicion about the conduct of the Respondent Public Authority. The utter disregard to specific direction of the Commission casts aspersions on the Respondent Public Authority with regard to adhering to the spirit of the RTI Act, 2005 and reflects disrespect to the provisions of the RTI Act, 2005 promulgated to ensure transparency and accountability in the functioning of the Public Authority. The Respondent present during the hearing was instructed to ensure that the inquiry report should be submitted to the Commission expeditiously failing which the Commission would initiate necessary action in accordance with the provisions of the RTI Act, 2005. The Commission felt that failure to comply with directions of the Commission by the Principal Commissioner rendered him equally liable for not facilitating and assisting the Commission in the adjudication of the Complaint. The Commission observed that once a statute provides an authority to do something, then it includes the implied power to use all reasonable means to achieve that objective.
Int his context, the Commission referred to the decision of the Supreme Court of India, in Sakiri Vasu vs State Of U.P. And Others, Appeal (crl.) 1685 of 2007 dated 7 December, 2007 wherein while substantiating on the doctrine of implied power, it was held as under:
"18. It is well-settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary to its execution.
19. The reason for the rule (doctrine of implied power) is quite apparent. Many matters of minor details are omitted from legislation. As Crawford observes in his Statutory Construction (3rd edn. page 267):-
If these details could not be inserted by implication, the drafting of legislation would be an indeterminable process and the legislative intent would likely be defeated by a most insignificant omission.
20. In ascertaining a necessary implication, the Court simply determines the legislative will and makes it effective. What is necessarily implied is as much part of the statute as if it were specifically written therein.
21. An express grant of statutory powers carries with it by necessary implication the authority to use all reasonable means to make such Page 6 of 7 grant effective. Thus in ITO, Cannanore vs. M.K. Mohammad Kunhi, AIR 1969 SC 430, this Court held that the income tax appellate tribunal has implied powers to grant stay, although no such power has been expressly granted to it by the Income Tax Act."
INTERIM DECISION-I:
Keeping in view the facts of the case and the submissions made by both the parties, the Commission directs Mr. R. B. Tiwari, Chief Commissioner of Customs, Bengaluru (then Pr. Commissioner of Customs) to submit its inquiry report to the Commission under intimation to the Complainant within a period of 15 days from the date of receipt of this order and strictly ensure his presence before the Commission on the next date of hearing failing which penal action under Section 20 of the RTI Act, 2005 shall be initiated.
The Dy. Registrar is accordingly instructed to fix a short date of hearing in the matter.
(Bimal Julka) Information Commissioner Authenticated True Copy:
(K.L.Das) Deputy Registrar Page 7 of 7