Central Information Commission
CIC/AD/C/2009/000613
Dated: September 29, 2009
Name of the Appellant : Sh. Rajeev Verma
Name of the Public Authority : Ministry of External Affairs , GOI
Background
1. The Applicant Sh. Rajeev Verma filed an RTI application dated 07.04.2008 seeking
a copy of the Letter written by the Russian Customs Department to the Indian
Embassy in Moscow based on which the Indian Embassy in Moscow had written a
letter No. Mos/Trade/551/35/2003-INV dated 29.04.2004. The CPIO replied vide
letter dated 23.05.2008 denying the information as sought by the Applicant,
firstly since investigation in the case was still being conducted by the Directorate
of Revenue Intelligence, New Delhi and secondly because the DRI is a
body/institution exempt from the provisions of the RTI Act 2005. The Applicant
admittedly received a letter dated 11.04.2008 from Mr. R N Kajla, CPIO, MEA,
New Delhi stating that the information sought by the Applicant pertained to the
Embassy of India at Moscow and hence the application was transferred to the
appropriate authorities with a request to furnish the information as sought by the
Applicant within the prescribed time limit. The Applicant then preferred a
complaint under Section 18 of the RTI Act before the Commission which was
rejected by the Commission vide Order dated 17.12.08 on the grounds that the
DRI is exempt from the purview of the RTI Act and that the Applicant should have
filed his first appeal before the First Appellate Authority thus exhausting available
channels for seeking information before appealing before the Commission. Being
thus unable to obtain the relief sought, the Appellant filed a Writ Petition before
the Hon’ble High Court of Delhi being CWP No. 7072/2009 challenging the order
dated 17.12.2008 passed by the CIC. The said Writ Petition was subsequently
withdrawn by the Petitioner with liberty to approach the First Appellate Authority
and the writ accordingly disposed off on 24.02.09.
2. The Applicant then approached the First Appellate Authority in MEA who rejected
the appeal vide Order dated 13.4.09 mainly on the grounds that the letter dated
29.4.09 from the First Secretary,(Trade) , Embassy of India, Moscow was directly
sent by the Indian Embassy to DRI without going through MEA and that the MEA
was not involved in any of the communications between the First Secretary in
Moscow and the DRI about the Applicant and that these are not matters
pertaining to MEA. Hence it is the DRI and not the MEA which is the custodian of
the said letter.
3. Being aggrieved by denial of information once again, the Appellant filed another
Writ Petition before the Hon’ble High Court of Delhi being CWP No. 8882 of 2009
challenging the order of the First Appellate Authority. Even this Writ Petition was
withdrawn by the Counsel for the Appellant on 12.05.2009 with liberty to file an
appeal before the Central Information Commission. Accordingly the instant Appeal
was filed before the CIC on 18.05.2009.
4. In his Appeal before the CIC, apart from reiterating the entire sequence of events
leading to the filing of the Appeal, the Appellant stated the following grounds:
i. Contradictory stance of the Respondent Public Authority in as much as the
orders of the CPIO and the First Appellate Authority while rejecting his RTI
request indicate disparity;
ii. The First Appellate Authority in its order dated 12.05.2009 while stating
that DRI was the custodian of the information sought by the Appellant had
completely absolved itself from the matter;
iii. The CPIO on the other hand had denied the information on the ground that
investigation in the matter was pending whereas it is the contention of the
Appellant that investigation in the case was complete and huge demand of
Rs. 20 crores had been fastened upon the Appellant leading to criminal
complaints against the Appellant ;
iv. The MEA officials at one point had submitted the alleged document in the
hands of the Commissioner on 18.7.07 and now the same Respondents ie,
MEA has taken the stand in its order dated 13.4.09 that they are not
custodian of the letter.
iv. The Appellant also alleged that response/s of the CPIO had been evasive
and contradictory, made with the ultimate objective of depriving the
Appellant of the information which is vital for fighting the ongoing criminal
cases against him. The Appellant in his appeal before the CIC further
contended that the impugned order of the Respondent Public Authority was
directly in conflict with the principles of natural justice since the Appellant
had been issued Show cause notice, ordered Preventive Detention under
provisions of the COFEPOSA Act, denied Passport and the impugned order
dated 12.05.2009 issued against him without granting him opportunity to
be heard.
5. The Bench of Mrs. Annapurna Dixit, Information Commissioner scheduled a
hearing for 15.09.2009 and the parties were intimated accordingly vide CIC’s
notice dated 02.09.2009.
6. Mr. Debraj Pradhan, CPIO and Mr. Harish Kumar, Dy. Director, DRI represented
the Public Authority/s.
7. Sh. Sandeep Chandna, Advocate represented the Appellant during the hearing.
DECISION
8. During the hearing, the Appellant submitted his written submissions reiterating
the contents of his Appeal before the CIC. Furthermore, the Appellant drew the
attention of the Commission towards his earlier RTI Appeal being No.
CIC/OK/A/2007/00555 dismissed by an order dated 26.07.2007. The observation
of the Commission while dismissing the said Appeal clearly indicates that upon
perusal of the documents including correspondence related to the matter, the
Commission was satisfied that there was no element of interpolation or tampering
of documents thereby dismissing the allegations of “violation of human rights”
and/or corruption involving the Public Authority. Among the documents annexed
by the Appellant, the Commission also takes note of the letter dated 08.04.09
[Annexure G] with the Appeal which is a letter addressed to the Appellant by the
office of the Consulate General of India, New York. The reasons for denial of
Passport to the Appellant and Show Cause issued against the Appellant for
suppression of material facts is borne clearly in the said letter. Various punitive
actions including the issuance of the Red Corner Notice on 24.01.2008 against the
Appellant for alleged frauds committed and violation of laws of the land have been
clearly etched out in the document.
9. On 22.9.09, the DRI sent its rebuttal to the written submission of the Appellant
dated 15.9.09. In response to the Appellant’s contention that there was no
communication by the Russian Customs to Indian Embassy , Moscow on the issue
of undue drawback availed by the Appellant, based on which the Indian Embassy,
Moscow had purportedly written the said letter, the Respondent DRI placed before
the Commission the said letter from Russian Customs to First Secretary(Trade)
Indian Embassy, Moscow and also made reference to earlier hearings in the
matter before the CIC where CIC held that DRI is an exempted agency under RTI
Act, 2005. He also submitted before the Commission that the relief sought by the
Appellant under the ‘Human Rights’ violation pretext was also examined by the
CIC on an earlier occasion and set aside, and accordingly the matter had attained
its finality. The Respondent Public Authority (DRI) also highlighted in his
submission of 22.9.09, details of intelligence inputs received by DRI related to the
fraudulent export of goods under drawback scheme from India to Russia by the
Appellant, under repayment of State Credit Scheme and also of investigations
involving enquiries from various entities associated with the exports. These
investigations culminated in the issuance of a showcause notice to the Appellant
on 24.12.04 under the provisions of the Customs Act 1962 demanding recovery of
fraudulently availed drawbacks along with interest on purported exports made to
Russia by the Appellant’s firms. With regard to the said letter being sought by the
Appellant, the Respondent Public Authority (DRI) stated that it relates to certain
enquiries conducted by DRI with Russian Customs after initiation of investigations
and that the letter dated 29.4.04 from First Secretary(Trade) to DRI was based on
that letter. It was also informed by the Appellant that a preventive detention
Order under Section 3(12) of COFEPOSA 1974 was issued against the Appellant
on 7.10.04 by the Enforcement Directorate besides a Red Corner Notice by the
Court of Ld ACMM.
10. While discussing the merits of the case based on the material available on record
and the submissions, both oral and written, of both the parties, the Commission is
of the view that in the light of the facts and circumstances of the case, no case for
the alleged “violation of human rights” is made out by the Appellant. Even if for
the sake of argument it is assumed that the principles of natural justice have been
violated by non furnishing of the document to the Appellant based upon which the
penal actions have been initiated against him, the Central Information
Commission is not the appropriate authority to adjudicate upon the propriety
thereof. In so far as the information as sought by the Appellant is concerned, it is
clear from the submissions of the Respondent Public Authority [viz MEA] that the
document/information exists in the custody of DRI. The Appellant’s contention
that the MEA produced the letter before the Commissioner during the very first
hearing of the case at CIC on 18.7.07 was refuted by the Respondent from DRI
who pointed out that it was the DRI official present at the hearing who was in
custody of the said letter and not the MEA. It is a well known fact that the
Department of Revenue Intelligence [DRI] enlisted at item no. 3 in the Second
Schedule to the RTI Act 2005 is one of the Intelligence and Security Organisations
established by the Central Government and is clearly exempt from the purview of
the RTI ACT 2005 under provisions of the Section 24 of the Act. Having perused
the records of the case as also the conduct of the Appellant as made out from his
own submissions and from submissions of DRI, it is the considered opinion of the
Commission, that the proviso clause of the Section 24 also does not apply to the
instant case in as much as no case of either corruption on the part of the Public
Authority or violation of human rights is made out. Also, it is important to
recollect at this point of time the fact that an appeal on the same issue was
disposed off with finality by the Commission on 26.7.07.
11. The Commission is therefore, for reasons given hereinabove, unable to direct
furnishing of the requisite document as sought by the Appellant. Hence, the
Appellant is at liberty to seek legal remedy at an appropriate legal forum. The
appeal is accordingly dismissed.
Decision in the matter was reserved and pronounced in open Court on September 29,
2009.
(Annapurna Dixit)
Information Commissioner
Authenticated true copy:
(G. Subramanian)
Assistant Registrar
Cc:
1. Shri Rajeev Verma
C/o Mr. Pradeep Jain
# 34, Gujrat Vihar
Vikas Marg
New Delhi
2. The CPIO
M/o External Affairs
O/o JS [RTI Division]
Akbar Bhawan,
Chanakyapuri
New Delhi
3. Officer incharge, NIC
4 Press E Group, CIC