Central Information Commission
Bharat Bhandari vs Internal Security Division on 13 January, 2022
केन्द्रीयसूचनाआयोग
Central Information Commission
बाबागंगनाथमागग, मुननरका
Baba Gangnath Marg, Munirka
नईनिल्ली, New Delhi - 110067
द्वितीय अपील संख्या / Second Appeal No. CIC/ISDIV/A/2020/668075
CIC/ISDIV/A/2020/669981
CIC/MHOME/A/2020/667981
Shri Bharat Bhandari ... अपीलकताा /Appellant
VERSUS/बनाम
PIO, Ministry of Home Affairs ...प्रद्वतवादीगण /Respondent
Internal Security Division
Through: Shri H K Wadhwa-DS(Arms)
Date of Hearing : 12.01.2022
Date of Decision : 13.01.2022
Chief Information Commissioner : Shri Y. K. Sinha
Relevant facts emerging from appeal:
Since both the parties are same in the above appeals, the above mentioned
cases are clubbed together for hearing and disposal.
Case RTI Filed CPIO reply First appeal FAO 2nd Appeal
No. on received on/
dated
668075 06.12.2019 02.01.2020 05.01.2020 04.02.2020 13.04.2020
669981 15.12.2019 02.01.2020 05.01.2020 04.02.2020 08.05.2020
667981 04.12.2019 02.01.2020 05.01.2020 04.02.2020 11.04.2020
Information soughtand background of the case:
(1) CIC/ISDIV/A/2020/668075 The Appellant filed an RTI application dated06.12.2019 seeking information about the following:-
"The Sanjaynagar police station, Bangalore: 560094, has written a letter to the Ministry Of Home Affairs, New Delhi. The said letter has been sent to the MHA in the months of December 2017 and January 2018.The said letter seeks certain clarification with regard to The Arms Act, 1959 and the rules framed thereunder. The said letters have been sent in order to seek information/clarification with regard to FIR NO 331/2017 registered under The Arms Act 1959.Page 1 of 7
I want to know if the Ministry Of Home Affairs has replied to the said letter received from the Sanjaynagar Police Station, Bangalore: 560094. I do not want a copy of the same but I only want to know if the MHA has replied to the Sanjaynagar Police Station in response to their letter. If the MHA has not replied to the said letters written by Sanjaynagar Police Station, then I want to know the reason why the said letters have not been replied to."
The CPIO vide online reply dated 02.01.2020 replied as under:-
"As per RTI Act, 2005, CPIO is not bound to seek clarification/ justification of the queries. However, the information sought by you is exempted from disclosure under Section 8(1)(h) of the RTI Act, 2005. Therefore, the information sought cannot be provided."
Dissatisfied with the response received from the CPIO, the Appellant filed a First Appeal dated 05.01.2020. The FAA/Joint Secretary vide order dated 04.02.2020 upheld the reply of the CPIO.
Aggrieved and dissatisfied, the Appellant approached the Commission with the instant Second Appeal.
Facts emerging in Course of Hearing:
Written submission dated 04.01.2022 has been submitted by the DS, IS-Div., MHA reiterating the above replies.
In order to ensure social distancing and prevent the spread of the pandemic, COVID-19, hearing was scheduled through audio conference after giving prior notice to both the parties. Both parties are heard through audio conference and the Appellant while making his submissions contended that the FAA had passed the order rather mechanically without proper appreciation of the facts. He further pointed out that the FAA's order suffered from another lacuna as it did not even mention the details of the Authority before whom the order could be assailed.
Respondent averred that since the Appellant had not specified the date of the letter about which he sought the information, it was not possible to locate the information or furnish any reply to this effect. To this, the Appellant stated that the letter about which he had sought information, had been sent by the PS Sanjaynagar, Bangalore hence the exact date of the letter was not available with him.
Decision Upon examination of the facts of the case from the available records and averments of the parties, the Commission is of the opinion that the reply sent by the PIO is not acceptable, since it is generic and does not address the query appropriately. In fact it is noted that the PIO has denied information citing Section 8(1)(h) of the RTI Act, without any justification or reasoning as to how Page 2 of 7 the said provision of law is applicable in this case, particularly in view of the PIO's oral contentions during hearing. Likewise query number 1, could be answered and would not require any clarification, which has not been done in this case.
In the given circumstances, the PIO's reply dated 02.01.2020 is set aside and the Respondent is hereby directed to send a revised reply query no. 1 and also explain how exemption provided under Section 8(1)(h) of the RTI Act is applicable in this case. The revised reply should be sent to the Appellant within three weeks and a compliance report in this regard with proof of service should be submitted before the Commission by 15.02.2022.
(2) CIC/ISDIV/A/2020/669981 The Appellant filed an RTI application dated15.12.2019 seeking information on the following points:-
"India has ratified the United Nations Convention Against Transnational Organized Crime on 5thMay, 2011.
On the 5thof May, 2011 India has also ratified the Protocol Against The Illicit Manufacturing Of And Trafficking In Firearms, Their Parts And Components And Ammunition, Supplementing The United Nations Convention Against Transnational Organized Crime. Both of the above have entered into force for India on the 4th of June, 2011.
I am attaching the RATIFICATION KIT for the Firearm Protocol. My questions are with regards to the following points mentioned in the ratification kit.
1) While signature produces limited legal effects, the protocol only becomes legally binding upon ratification or accession (page 3, para 1).
2) The purpose of ratification or accession is to become a party to the protocol and, therefore, to assume the legal obligations arising from the treaty (page 3, para 3)
3) The protocol enters into force on the thirtieth day after the date of deposit of the relevant instrument, becoming a source of international obligations, including with respect to other state parties (page 3, para 6)
4) The protocol requires that states take appropriate legal, administrative and other measures to implement its provisions (page 5 para 3) In pursuance of Article 18, paragraph 13 of the convention, the designated Central Authority is the Secretary, Ministry Of Home Affairs, Government Of India.
I want to know if the Ministry Of Home Affairs is following and implementing all of the provisions of the Firearm Protocol, as pointed out with regards to the 4 points mentioned above. If the MHA is not following and implementing the same, then I want to know the reason Page 3 of 7 why the MHA is not doing so, when the MHA has assumed the legal obligations arising from the treaty."
The CPIO vide online reply dated 02.01.2020 replied as under:-
"As per RTI Act, 2005, CPIO is not bound to provide reasons/justification of the queries raised. However, Government of India follows the said protocols through the Arms Act, 1959 (Arms Amendment Act 2019, 2019) and the Arms Rules, 2016 in the matter which are available in public domain. It is advised to go through the Arms Act, 1959 (the Arms Amendment Act, 2019) and the Arms Rules, 1962 & 2016 to get answers to your queries."
Dissatisfied with the response received from the CPIO, the Appellant filed a First Appeal dated 05.01.2020. The FAA/Joint Secretary vide order dated 04.02.2020 upheld the reply of the CPIO.
Aggrieved and dissatisfied, the Appellant approached the Commission with the instant Second Appeal.
Facts emerging in Course of Hearing:
Written submission dated 11.01.2022 has been sent by DS, IS-Div., MHA reiterating the above replies.
In order to ensure social distancing and prevent the spread of the pandemic, COVID-19, hearing was scheduled through audio conference after giving prior notice to both the parties. Both parties are heard through audio conference and Appellant contended during the hearing that International protocols mentioned by him in the RTI application are being violated by the Respondent and he has filed complaints to this effect at the pg portal of the Respondent and approached the relevant UN Bodies as well. In the light of the alleged violations, the Appellant refused to accept the Respondent's reply.
Decision After hearing the detailed averments of the parties, it is evident that query raised by the Appellant had been duly responded by the Respondent, in terms of the RTI Act. The Appellant refused to accept the response of the Respondent and stated he has filed complaints before other fora with his grievances as it should be, because such grievances or factual disputes cannot be addressed under the RTI Act.
(3) CIC/MHOME/A/2020/667981 The Appellant filed an RTI application dated 04.12.2019 seeking information on the following points:-Page 4 of 7
"The Arms Rules 2016 have come into force from 15thJuly, 2016. The said rules were framed in exercise of the powers conferred by various relevant section of The Arms Act, 1959 (54 of 1959) From 15th July 2016 till 31stOctober, 2018, I want information with regard to the following queries.
1) From 15th July, 2016 till 31stOct, 2018, was it mandatory for private limited companies to obtain a composite import/export license in FORM X for the export of parts of firearms.
2) From 15th July, 2016 till 31stOct, 2018, apart from a composite import/export license in FORM X, issued to M/s MIM Components Bangalore Private Limited, on the 24th of April, 2018 vide license number EXP/0003/MHA/ARMS/2018, for export of parts of firearms, did the Ministry Of Home Affairs, issue any composite import/export license in FORM X to any other entity/private limited company, for the export of parts of firearms.
3) From 15th July, 2016 till 31stOct, 2018, what was the license fee applicable for a composite import/export license in FORM X for the purpose of export of parts of firearms.
4) From 15th July, 2016 till 31stOct, 2018, did the Ministry Of Home Affairs, keep in abeyance, for any private limited company, the requirement of a composite import export license in FORM X, for the export of parts of firearms.
5) From 15th July, 2016 till 31st Oct, 2018, if the Ministry Of Home Affairs did keep the requirement of a composite import/export license in FORM X, in abeyance, for any private limited company, for the purpose of export of parts of firearms, then from what date was it kept in abeyance and what was the name of the private limited company for which it was kept in abeyance."
The CPIO vide online reply dated 02.01.2020 replied as under:-
"Point no. 1: The information sought by you is available in the Arms Act, 1959 & the Arms Rules, 1962 and 2016, which is self explanatory& is available on public domain of this Ministry.
Point no.2: The information sought for is a third party information under Section 8(1)(j) as per RTI Act, 2005.
Point no. 3,4&5: As per RTI Act, 2005, CPIO is not bound to seek clarification/ justification of the queries. However, requisite information is available at Arms Act, 1959 and the Arms Act (Amendment), 2019 and the Arms Rules, 1662 & 2016 which is available at public domain of this Ministry."
Dissatisfied with the response received from the CPIO, the Appellant filed a First Appeal dated 05.01.2020. The FAA/Joint Secretary vide order dated 04.02.2020 upheld the reply of the CPIO.
Page 5 of 7Aggrieved and dissatisfied, the Appellant approached the Commission with the instant Second Appeal.
Facts emerging in Course of Hearing:
Written submission dated 11.01.2022 has been sent by DS, IS-Div., MHA reiterating the above replies.
In order to ensure social distancing and prevent the spread of the pandemic, COVID-19, hearing was scheduled through audio conference after giving prior notice to both the parties. Both parties are heard through audio conference and the Appellant once again pointed out that the FAA mechanically decided the matters and had not provided any details about the second appellate authority. The Appellant added that his prime grievance is that he was heard in person in July 2019 and the case was simply closed without passing any reasoned speaking order. It is his contention that had he been granted a fair hearing and his averments had been properly addressed at the hearing of his First Appeal, no further litigation would have been necessary.
Decision:
Upon examination of the facts of the case at hand, it is noted that the Appellant's contention about lapse on the part of the FAA is found to be correct. In fact, the Commission itself has on numerous occasions advised the FAA to be careful while adjudicating First Appeals and pass reasoned speaking orders after proper hearing of both parties, addressing the facts appropriately. The failure on the part of the FAA leads to further litigation which is avoidable. Accordingly, the Commission recommends that appropriate measures be taken by the Respondent to ensure appropriate adjudication of first appeals is done by the FAAs so that the first appellate stage is properly utilized, instead of making it a redundant process or a mechanical exercise.
The reply furnished by the PIO in this case is also found inadequate and generic and hence is set aside. In the light of the above, the Respondent-PIO is directed to send a revised reply with respect to queries 2 to 5, answering the queries raised by the Appellant with factual and correct information, as permissible under the Act. The revised reply should be sent to the Appellant within three weeks of receipt of this order and a compliance report in this regard with proof of service should be submitted before the Commission by 15.02.2022.
The appeals are disposed off with the above observations.
Y. K. Sinha (वाई. के. नसन्हा) Chief Information Commissioner (मुख्य सूचना आयुक्त) Page 6 of 7 Authenticated true copy (अद्विप्रमाद्वणत सत्याद्वपत प्रद्वत) S. K. Chitkara (एस. के. द्विटकारा) Dy. Registrar (उप-पंजीयक) 011-26186535 Page 7 of 7