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2014 DIGILAW 1695 (PNJ)

Sandeep Kumar Gupta v. State Information Commission, Punjab

2014-12-08

RAMESHWAR SINGH MALIK

body2014
Rameshwar Singh Malik, J. 1. The present petition has been filed for quashing of the order dated 22.05.2014 (Annexure P-8) passed by respondent No. 1, whereby second appeal of the petitioner was dismissed solely on the ground that the Intelligence Wing of the respondent-State was exempted, under Section 24 of The Right to Information Act, 2005 ('RTI Act' for short) from disclosing the information sought by the petitioner. Notice of motion was issued and in response thereto, separate written statements have been filed. Respondent No. 1 has filed the written statement through Dr. Arvinder Singh, Secretary, State Information Commission whereas Varinder Kumar, IGP, Intelligence, Punjab has filed the written statement on behalf of respondents No. 2 to 5. 2. Learned counsel for the petitioner raised two arguments. Firstly, he submits that since the information sought by the petitioner vide Annexure P-1 was pertaining to corruption in the respondent-State, it was not exempted under Section 24(1) of the RTI Act. Secondly, he submits that if the information was not pertaining to the Department of respondent No. 4, he ought to have transferred the application of the petitioner under Section6(3) of the RTI Act to the concerned Public Information Authority under intimation to the petitioner. He prays for setting aside the impugned order, by allowing the present writ petition. 3. Per contra, learned counsel for the State submits that even if the Intelligence Wing of the respondent-State was not exempted under Section 24(1)of the RTI Act, in view of first proviso thereto, yet, since there was no such record available with the Intelligence Wing, containing the information sought by the petitioner, no such information could be supplied to the petitioner. He further placed reliance on Section 24(4) of the RTI Act to contend that the State has issued a separate notification in the Official Gazette that Intelligence Wing was exempted from disclosing any information. He also submits that the petitioner was seeking creation of an information which was not the scope of the RTI Act. He prays for dismissal of the writ petition. 4. He also submits that the petitioner was seeking creation of an information which was not the scope of the RTI Act. He prays for dismissal of the writ petition. 4. Having heard the learned counsel for the parties at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that in the given facts and circumstances of the case, the instant writ petition deserves to be allowed, for the following more than one reasons. 5. A bare perusal of the impugned order dated 22.05.2014 (Annexure P-8) passed by respondent No. 1 would make it crystal clear that the impugned order has been passed only on the ground that the Intelligence Wing of the respondent-State was exempted from disclosing the information under Section 24 of the RTI Act. The information sought by the petitioner vide his original application Annexure P-1 was as under: "Information required: The information is required for the period from 01.01.2010 to the date of providing it. Former Punjab DGM prisons, Shashi Kant, who also remained ADGP intelligence recently while speaking to the media had said that the dossier was prepared by intelligence sleuths over two years back when he headed the intelligence wing and names often prominent politicians and social personalities figured. They were involved in the smuggling. The details on them were given to the DGP and state home department. Please provide me the certified copy of the report/dossier (with all enclosures) submitted by Sh. Shashi Kant to the DGP/state home department." 6. Now the first question that falls for consideration to this Court is, whether the Intelligence Wing of the respondent-State would be exempted under Section 24(1) of the RTI Act, even if the information sought by the petitioner was pertaining to corruption. The relevant part of Section 24(1) of the RTI Act reads as under: "24. Act not to apply to certain organizations. The relevant part of Section 24(1) of the RTI Act reads as under: "24. Act not to apply to certain organizations. (1) Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section." Since learned counsel for the State has placed reliance on Section 24(4) of the RTI Act, relevant part thereof is also reproduced as under: "24(4) Nothing contained in this Act shall apply to such intelligence and security organisations, being organisations established by the State Government, as that Government may, from time to time, by notification in the Official Gazette, specify: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this subsection." 7. A bare combined reading of above said information sought by the petitioner vide Annexure P-1, Section 24(1) as well as Section 24(4) of the RTI Act would show that the information sought by the petitioner was not exempted and the Intelligence Wing of the respondent-State was duty bound to supply the information sought by the petitioner. Since, respondent No. 1 has misdirected itself while completely ignoring the true import of provisions of Section 24 of RTI Act, therefore, the impugned order dated 22.05.2014 (Annexure P-8) is patently illegal and the same cannot be sustained. 8. So far as the second argument raised by learned counsel for the petitioner is concerned, Section 6(3) of the RTI Act reads as under: "(1) xxxxx (2) xxxxx (3) Request for obtaining information-Where an application is made to a public authority requesting for an information- (i) Which is held by another public authority; or (ii) the subject matter of which is more closely connected with the functions of another public authority, the public authority, to which such application is made, shall transfer the application or such part of it as may be appropriate to that other public authority and inform the applicant immediately about such transfer: Provided that the transfer of an application pursuant to this sub-section shall be made as soon as practicable but in no case later than five days from the date of receipt of the application." 9. In view of the above said provisions of the RTI Act, in case respondent No. 2 was of the view that the information sought by the petitioner was pertaining to the Intelligence Wing, the Public Information Officer of respondent No. 2 was duty bound to transfer the application of the petitioner to the concerned department under intimation to the petitioner. Even this much was not done in the present case. Further, the respondents have been taking different stands at different points of time as per their suitability. 10. The only stand taken in Annexure P-3 dated 27.06.2013 was that the Intelligence Wing was exempted from the provisions of RTI Act under Section24(1) thereof. However, in the short reply filed by respondents No. 2 to 4, the stand taken was that information sought by the petitioner was not available on record of the Intelligence Wing. When a pointed question was put up to the State counsel in this regard, he had no answer and rightly so, because it was a matter of record. The respondents have taken contradictory stands at different points of time. 11. No other argument was raised. 12. Considering the peculiar facts and circum stances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that since the impugned order (Annexure P-8) dated 22.05.2014 passed by respondent No. 1 has been found to be patently illegal, the same is hereby set aside. The matter is remitted back to respondent No. 1 to pass a fresh order in accordance with law. Let an appropriate order be passed within a period of three months from the date of receipt of a certified copy of this order. Resultantly, with the above said observations made and directions issued, the instant petition stands allowed, however, with no order as to costs.