INDUS BATTERY INDUSTRIES (PVT.) LTD VS FEDERATION OF PAKISTAN, 2008 PTD-KARACHI-HIGH-COURT-SINDH 246 (2007)

(a) Customs Act (IV of 1969)---

---Ss. 25-C & 155-H---Freedom of Information Ordinance (XCVI of 2002), Ss.3, 8 & 15---Under-invoicing of imported goods, detection of---Information regarding description quantity, quality, port of export, country of origin and value of imported goods declared by importer---Right to such information of a person interested in making an offer under S.25-C of Customs Act, 1969---Non-disclosure of such information to such interested person by Customs Authorities claiming immunity under S.155-H of the Customs Act, 1969---Validity---Object of S.25-C of Customs Act, 1969 was to facilitate detection of under-invoicing in order to prevent evasion of customs duties and charges---Immunity from making such disclosure claimed by Customs Authorities, if permitted, would defeat such object of S.25-C of the Act---Such information to be gathered by such interested .person would not fall within any of immunities provided under Ss.8 & 15 of Freedom of Information Ordinance, 2002---Duty of Customs Authorities to disclose such information to such interested person as same would help in preventing under-invoicing-Principles.

Section 155-H of the Customs Act, 1969 bars the Customs Authorities from divulging information about the imported goods to a third person. The object of section 25-C of the Customs Act, 1969 is to facilitate detection of under-invoicing so as to prevent evasion of customs duties and charges This object cannot be achieved if the Customs Authorities claim immunity under section. 155-H of the Customs Act, 1969, which if permitted would defeat the very purpose of section 25-C of the Customs Act, 1969. The information as to description of the imported consignment, the quantity, the quality, the country of origin, the port of export and the value declared for such goods is necessary to make offer under section 25-C. If these material particulars are not disclosed to a local buyer, he would not be able to make his offer under section 25-C which would have facilitated detection of under-invoicing, if any committed. Divulging requisite information to a person interested in making an offer under section 25-C is therefore necessary to achieve the objects of section 25-C of the Customs Act, 1969. On the contrary withholding such information by claiming immunity from disclosure under section 155-H of the Customs Act, 1969 would thwart the detection of under-invoicing thereby causing loss to the exchequer.

Access to information is sine qua non of constitutional democracy. The public has a right to know everything that is done by the public functionaries. The responsibility of public functionaries to disclose their acts works both against corruption and oppression. Though this right has its limitations but every routine business of the public functionary cannot be covered with the veil of secrecy or privilege. Only where disclosures would cause greater harm than good that the disclosures are to be disallowed. Therefore, as a rule, information should be disclosed and only as an exception privilege should be claimed on justifiable grounds permissible under the law. Freedom of Information Ordinance, 2002, regulates this right to information, which emanates from the freedom of expression. The object of this Ordinance as evinced from its preamble, is to provide for transparency and freedom of information in order to ensure that citizens have access to public records and the Government is more accountable to its citizens. Under section 3 of the Freedom of Information Ordinance, 2002, the provisions of the said Ordinance are to be so interpreted as to facilitate prompt disclosure of information at minimal cost. Furthermore section 3 also contains a non obstante clause which provides that notwithstanding anything contained in any other law, no person is to be denied information from any official record. The only limitations to this right are the immunities described in sections 8 and 15 of the said Ordinance.

When an immunity is claimed from making disclosures, the courts have to tilt towards permitting disclosures in order to balance the public right to know against the interest of an individual, unless of course the disclosures are likely to expose personal privacy of an individual. No doubt, where there are two competing interests involved, the court would perform balancing act by weighing both the interests and decide where the balance tilts. In a democratic and free societies even the consumers of a product are given the right to be informed about its quality, quantity, purity, potency, standards and constituents, so that consumers could make informed choices.

The documents from which necessary details of imported consignment are to be gathered by a person interested in making an offer under section 25-C of the Customs Act, 1969 do not fall within any of the immunities provided under sections 8 and 15 of the Freedom of Information Ordinance, 2002. Furthermore, as section 3 of the Freedom of Information Ordinance, 2002 contains non obstante clause "notwithstanding anything contained in any other law", no immunity can be claimed on the basis of section 155-H of the Customs Act, 1969 as the provisions of the Freedom of Information Ordinance, 2002 have overriding effect over the provisions of section 155-H of the Customs Act, 1969.

The Customs Authorities are bound to disclose information regarding description, quantity, quality, the port of export, the country of origin and the value of the imported consignment declared by the importer to any person, who is interested in making an offer under section 25-C of the Customs Act, 1969. The disclosure of such information would certainly help in preventing under-invoicing, which is the very object of section 25-C of the Customs Act, 1969. In fact, all such information should be made available on the web site of the Customs Authorities.

Kashif Naseem v. Federation of Pakistan and others 2007 PTD 2250 ref.

(b) Freedom of Information Ordinance (XCVI of 2002)---

----Ss. 3, 8, 14, 15, 16 & 17---Application for obtaining information regarding public record---Immunity from making such disclosure claimed by authority---Duty of court---Right of citizen to have access to such information had its limitations, but every routine business of public functionary could not be covered with veil of secrecy of privilege---Where disclosure would cause greater harm than good, then disclosure could be disallowed---Where two competing interests were involved, then court would perform balancing act by weighing both interests and decide where balance tilted---Principles.

Access to information is sine qua non of constitutional democracy. The public has a right to know everything that is done by the pubic functionaries. The responsibility of public functionaries to disclose their acts works both against corruption and oppression. Though this right has its limitations but every routine business of the public functionary cannot be covered with the veil of secrecy or privilege. Only where disclosures would cause greater harm than good that the disclosures are to be disallowed. Therefore, as a rule, information should be disclosed and only as an exception privilege should be claimed on justifiable grounds permissible under the law. Freedom of Information Ordinance, 2002, regulates this right to information, which emanates from the freedom of expression. The object of this Ordinance as evinced from its preamble, is to provide for transparency and freedom of information in order to ensure that citizens have access to public records and the Government is more accountable to its citizens. Under section 3 of the Freedom of Information Ordinance, 2002, the provisions of the said Ordinance are to be so interpreted as to facilitate prompt disclosure of information at minimal cost. Furthermore section 3 also contains a non obstante clause which provides that notwithstanding anything contained in any other law, no person is to be denied information from any official record. The only limitations to this right are the immunities described in sections 8 and 15 of the said Ordinance.

When an immunity is claimed from making disclosures, the courts have to tilt towards permitting disclosures in order to balance the public right to know against the interest of an individual unless of course the disclosures are likely to expose personal privacy of an individual. No doubt where there are two competing interests involved, the court would perform balancing act by weighing both the interests and decide where the balance tilts. In a democratic and free societies even the consumers of a product are given the right to be informed about its quality, quantity, purity, potency, standards and constituents, so that consumers could make informed choices.

Haseeb Jamali for Petitioner.

Rizwan Ahmed Siddiqi, D.A.-G., Aqeel Ahmad Abbasi and Ghulam Ahmed Khan for Respondents.

Date of hearing: 11th October, 2007.

JUDGMENT

FAISAL ARAB, J.---The petitioner is a local manufacturer of dry battery cell. The case of the petitioner is that respondents Nos.6 to 9 who are importers of dry battery cells in collusion with customs authorities have committed massive under-invoicing in relation to the dry battery cells which they imported from China. It is also alleged that as a consequence thereof not only loss to the exchequer has been caused but under-invoicing is destroying the local industry of the dry battery cells as it is unable to compete with the imported dry battery cells.

2. It is stated by the petitioner that in October-November, 2006 when respondents Nos.6 and 7 imported dry battery cells from China, the petitioner made an offer to purchase their imports under section 25-C of the Customs Act but the Customs Authorities failed to entertain its offer though it was also accompanied by a payment of 25% of the offered amount. Similarly it is also stated in the petition that during the same period respondents Nos.8 and 9 also imported their respective consignments of dry battery cells and in order to make offer against such imports under section 25-C the petitioner sought information regarding brand, description, quantity and declared value of the imported consignments but the customs officials refused to provide the same. The petitioner claims that customs authorities are bound to divulge requisite information regarding the imported consignments in order to facilitate it to submit its offer under the provisions of section 25-C of the Customs Act, 1969.

3. The case of respondent No.9 is that a person making an offer under section 25-C of the Customs Act cannot straightaway purchase the imported consignment unless customs authorities first come to the conclusion that the value declared by the importer is not the actual transaction value and under-invoicing has been committed and only then an offer under section 25-C of the Customs Act is to be considered.

4. The case of respondents 3 to 5, who are functionaries of Customs, is that whenever a valid offer to purchase imported goods, complete in all respects was received from the petitioner, the same was entertained under the provisions of section 25-C of the Customs Act and consignment sold and delivered to the petitioner. However it was maintained that where an offer did not contain requisite details of the imported consignment i.e. value of the imported goods and" other necessary details, the offer was not considered. It was pleaded that under section 155-H of the Customs Act, they are bound not to divulge information to any third party with regard to value of the imported goods and in any case as no goods declaration in terms of section 79(1) of the Customs Act was submitted by .the importers, they are not in a position to know what would be the 'declared value of a particular consignment.

5. It is an admitted position that respondents Nos.3 to '5 have released the consignments provisionally under section 81 of Customs Act pending investigation and determination of value by the Directorate General of Customs Valuation and post Clearance Audit.

6. While discussing the object and scope of section 25-C of the Customs Act this bench in the case of Kashif Naseem v. Federation of Pakistan & others reported in 2007 PTD 2250 held that after receiving an offer under section 25-C of the Customs Act from a local purchaser, the Collector of Customs has to first satisfy himself that the value declared for such goods is not its actual transaction value and under-invoicing has been committed by the importer. Without under-invoicing being established, the acceptance of an offer of a third party under section 25-C would amount to forced takeover of importer's goods for no fault of his own. The object of section 25-C of the Customs Act is not to allow forced takeover of goods belonging to an honest importer but the real object is to curb the tendency of under-invoicing by a dishonest importer. The right of an importer to clear his goods upon payment of duties and charges at the actual transaction value cannot be taken away merely because someone from the local market is prepared to buy his goods at a higher price. It was on this basis held in the above referred case that forced takeover of goods belonging to one by another cannot be legitimate under section. 25-C of the Customs Act unless it is established that the importer has committed under-invoicing and to reach such a conclusion the Collector of Customs has to first determine the value of imported goods by following the mechanism provided under section 2.5' of the Customs Act.

7. In the above referred judgment it was also held that an importer is obliged to divulge all information with regard to his imports so that the Customs Authorities may proceed smoothly with their obligation to ascertain the actual transaction value. Withholding of necessary information which is solely with the importer or is within his exclusive reach would recoil adversely upon the intentions of an importer. The Customs Authorities are not expected to embark upon a roving inquiry in order to gather information for determining transactional value of imported goods. When information like the name and address of the exporter, the payment made to him and the mode in which payment was remitted by the importer to the exporter or any information that is exclusively with the importer or is within his exclusive reach is not divulged to the Customs Authorities then on what basis they would be able to correctly determine the real transaction value of imported goods.

8. As regards the argument that section 155-H of the Customs Act bars the Customs Authorities from divulging information about the I imported goods to a third person is concerned, in our view the object of section 25-C of the Customs Act is to facilitate detection of under-invoicing so as to prevent evasion of customs duties and charges. This object cannot be achieved if the Customs Authorities claim immunity under section 155-H of the Customs Act which if permitted would defeat the very purpose of section 25-C of the Customs Act. The information as to description of the imported consignment, the quantity, the quality, the country of origin, the port of export and the value declared for such goods is necessary to make offer under section 25-C. If these material particulars are not disclosed to a local buyer, he would not be able to make his offer under section 25-C which would have facilitated detection of under-invoicing if any committed. Divulging requisite information to a person interested in making an offer under section 25-C is therefore necessary to achieve the objects of section 25-C of the Customs Act. On the contrary withholding such information by claiming immunity from disclosure under section 155-H of the Customs Act would thwart the detection of under-invoicing thereby causing loss to the exchequer.

9. It goes without saying that access to information is sine qua non of constitutional democracy. The public has a right to know everything that is done by the pubic functionaries. The responsibility of public functionaries to disclose their acts works both against corruption and oppression. Though this right has its limitations but every routine business of the public functionary cannot be covered with the veil of secrecy or privilege. Only where disclosures would cause greater harm than good that the disclosures are to be disallowed. Therefore, as a rule information should be disclosed and only as an exception privileged should be claimed on justifiable grounds permissible under the law. This right to information, which emanates from the freedom of expression, is regulated by Freedom of Information Ordinance, 2002. The object of this Ordinance as evinced from its preamble, is to provide for transparency and freedom of information in order to ensure that citizens have access to public records and the Government is more accountable to its citizens. Under section 3 of the Freedom of Information Ordinance, 2002 the provisions of the said Ordinance are to be so interpreted so as to facilitate prompt disclosure of information at minimal cost. Furthermore section 3 also contains a non obstante clause which provides that notwithstanding anything contained in any other law, no person is to be denied information from any official record. The only limitations to this right are the immunities described in section 8 and section 15 of the said Ordinance.

10. When an immunity is claimed from making disclosures, the Courts have to tilt towards permitting disclosures in order to balance the public right to know against the interest of an individual unless of course the disclosures are likely to expose personal privacy of an individual. No doubt where there are two competing interests involved, the Court would perform balancing act by weighing both the interests and decide where the balance tilts. In a democratic and free societies even the consumers of a product are given the right to be informed about its quality, quantity, purity, potency, standards and constituents so that consumers could make informed choices.

11. In the present case the documents from which necessary details of imported consignment are to be gathered by a person interested in making an offer under section 25-C of the Customs Act do not fall within any of the immunities provided under sections 8 and 15 of the Freedom of Information Ordinance, 2002. Furthermore, as section 3 of the Freedom of Information Ordinance, 2002 contains non obstante clause "notwithstanding anything contained in any other law", no immunity could be claimed on the basis of section 155-H of the Customs Act as the provisions of the Freedom of Information Ordinance, 2002 have overriding effect over the provisions of section 155-H of the Customs Act.

12. We are therefore of the opinion that Customs Authorities are bound to disclose information regarding description, quantity, quality, the port of export, the country of origin and the value of the imported consignment declare by the importer to any person who is interested in making an offer under section 25-C of the Customs Act. The disclosure of such information would certainly help in preventing under-invoicing which is the very object of section 25-C of the Customs Act. In fact all such information should be made available on the web site of the Customs Authorities.

13. It has come on record that Customs Authorities have released the consignments provisionally under section 81 of Customs Act pending investigation and determination of value and post Clearance Audit. The respondents Nos. 6 to 9 are therefore bound to appear before the Collector of Customs and furnish all requisite information, which is within their possession or is within their control with regard to the imports which are subject matter of this petition. The Collector of Customs shall then determine their actual transactional value and in case he finds that under-invoicing has been committed, he shall take appropriate action in accordance with law. The petitioner, if it so chooses, shall be free to join the proceedings before the Collector of Customs in order to assist him in the determination of actual transactional value of the disputed consign ment.

14. Vide short order dated 11-10-2007 we allowed this petition. The above are the reasons for the same.

S.A.K./I-23/KPetition accepted.