Commissioner of Customs (I And G) vs S.P. Goyal

S. Muralidhar, J.

CM No. 2331 of 2010: Exemption allowed subject to all just exceptions.

The application is disposed of.

W.P. (C) No. 1103 of 2010 and CM No. 2320 of 2010 (for stay)

The challenge in this petition is to the impugned order dated 13th January 2010 passed by the Central Information Commission (''CIC'') directing the Commissioner of Customs (I and G) to supply samples to the Appellant as indicated in the order.

Mr. Parag Tripathi, learned Additional Solicitor General appearing for the Petitioner states that while it is possible that samples would also be considered as "information" within the meaning of the Right to Information Act, 2005 ("RTI Act"), the CIC ought to have considered that the samples were being held by the Customs authorities only in a fiduciary capacity. It is further submitted that the CIC had not accounted for an earlier order dated 20th October 2007 whereby the claim of the Respondent for a request for examination of remnants of samples was rejected.

This is, in fact, the second round of litigation. Earlier the Petitioner had filed Writ Petition (C) No. 3400 of 2008 in this very matter against an order dated 3rd April 2008 of the CIC. While disposing of the said writ petition, this Court by its order dated 15th September 2009 remanded the case to the CIC for deciding the appeal filed by the Petitioner afresh. It was noticed by this Court that the order dated 3rd April 2008 of the CIC did not refer to Section 24 of the Act and whether the first proviso to the said provision applied. It also failed to notice the contention that the Department of Revenue Intelligence ("DRI") had drawn the samples and, therefore, the samples were in the custody of the DRI and not the Commissioner of Customs.

The CIC after removal, passed a detailed interim order on 16th November 2009 noting that the Commissioner of Customs (I and G), Delhi and the DRI had taken contrary positions with regard to the custody of the remnants of the samples. Notice was thereafter issued to the Chairman, Central Board of Excise and Customs ("CBEC") to determine as to who was the custodian of the samples. The Chairman, CBEC in response to the above order informed the CIC that "physical custody of the remnants of the samples is presently with the Office of the Commissioner of Customs (I and G)."

Considering that the objections now taken by the Petitioner to the maintainability of the Respondent''s claim before the CIC was not raised in the earlier round of litigation, this Court is not inclined to entertain the said ground in the present petition. Nevertheless, it is clarified that the order of the CIC will not be treated as a precedent. The question of law as regards the Commissioner of Customs holding the samples in a fiduciary capacity is left open to be decided in an appropriate case.

The petition and the application are accordingly dismissed.