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TMI Blog2020 (11) TMI 628X X X X Extracts X X X X X X X X Extracts X X X X ..... round that it was received shortly before the scheduled hearing on 7.8.2020 - this is found to be a gross violation of the petitioners right of consideration of representation by the Advisory Board. Despite having made the said representation, the same was not placed before the Board. Clearly, therefore, the fundamental right of the petitioners under Article 14 and 22 of the Constitution stood violated. Thus, the continued detention of the petitioners is without the authority of law, since the petitioners have not been afforded the right to have their case considered by the Advisory Board in terms of Section 8 of the COFEPOSA Act - detention of the petitioners, therefore, cannot be sustained, and is accordingly quashed - petition allowed. - W.P.(CRL) 1469/2020 and CRL.M.A. 12805/2020 - - - Dated:- 17-11-2020 - HON'BLE MR. JUSTICE VIPIN SANGHI AND HON'BLE MR. JUSTICE RAJNISH BHATNAGAR Petitioners Through: Mr. Saurabh Kirpal and Mr. Ashish Batra, Advocates. Respondents Through: Mr. Kirtiman Singh, CGSC, Mr. Dhruv Pandey, Advocates for 1,2 and 4. Mr. Aditya Singhla, Advocate for R-3. Mr. Nishe Rajen Shonker and Mr. Alim Anvar, Adv. for R-5. O R D E R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be enquired from the above mentioned COFEPOSA detenues that whether they desire to represent their case before the Advisory Board in person. In case, the detenues desire to represent their case in person, it may also be inquired from them whether they can represent themselves either in English or Hindi or Marathi language before the Advisory Board. (c) The Superintendent is also requested to forward representation, if any, submitted by the detenues or their counsel to the concerned addresses i.e. (i) The Detaining Authority, Joint Secretary (COFEPOSA) Central Economic Intelligence Bureau, New Delhi; (ii) The Central Government, Director General, Central Economic Intelligence Bureau, New Delhi; (iii) The Secretary, Advisory Board, COFEPOSA Act, 1974, Government of Maharashtra, Administrative Building, 12th Floor, Mantralaya, Mumbai 400 032, Immediately under the acknowledgement and the same may be intimated to the undersigned. (d) The above information may kindly be furnished to the Ministry urgently by return fax/ email Nos. 011-23717660 email: [email protected], at the earliest. 4. Pertinently, this communication permitted the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son, Poojappura Thiruvananthapura, Kerela. He was requested to make necessary arrangements for production of the detenues, namely, the petitioners before the Advisory Board on 7.8.2020 by video conferencing (in case they desire to be heard in person and intimate the position to this Department) . Clause (b) further stated that the Superintendent is also requested that it may be enquired from above mentioned COFEPOSA detenues that whether they desire to represent their case before the Advisory Board in person. In case, the detenues desire to represent their case in person, it may also be inquired from them whether they can represent themselves either in English or Hindi or Marathi language before the Advisory Board. The Superintendent was also required to forward the representation, if any, submitted by the detenues or their counsel to the concerned addresses, namely, the Detaining Authority; the Central Government; and the Secretary, Advisory Board, COFEPOSA Act, Government of Maharashtra. The further instructions to the Jail Superintendent was in the following terms: You are further requested to coordinate with the Jail authorities to ensure timely appearance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Department of Revenue, CEIB, Government of India. In the said additional affidavit respondent nos. 1, 2 and 4 have inter alia submitted as follows:- D. That, without prejudice to the basic contention of the Respondent No.1,2 and 4 that the present petition is devoid of merits as submitted in the Counter Affidavit, the Department seeks liberty to place on record certain additional facts to the foremost contention of the petitioners regarding violation of their right of equal treatment in their representation before the Advisory Board which would aid the adjudication of the present matter. The sequence of facts in this regard, as informed by Respondent No.4 vide their letter dated 21.10.2020, is respectfully submitted as under: i. The cases of the petitioners were referred by the Detaining Authority (Respondent No.2) to the Secretary, State Advisory Board, Government of Maharashtra (Respondent No.4) vide letter dated 16.07.2020 seeking the opinion of the Advisory Board in matter of the preventive detention of the petitioners under COFEPOSA Act, 1974. The said reference was received by the office of the Advisory Board on 22.07.2020. ii. Thereafter, letters dated 27.07 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny permission or approval from the board to be represented by their counsel. It is further pertinent to note that the contact details of Advocate AshishBatra were not shared with the office of the Advisory Board by the petitioners. iii As per the notice issued to the concerned parties, the proceeding of the meeting of the Advisory Board were to be commenced at 2:00 pm on 07.08.2020 through VC for which the preparations were initiated about one-hour advance in order to avoid any technical glitch. iv. During the preparation for the meeting through VC on 07.08.2020 as scheduled, the other representations made by the petitioners were forwarded at 01:45 pm and 01:53 pm by the superintendent, Central Prison Correctional Home, Poojapura through email to the Respondent No.4. Since the hearing of the Advisory Board was about to commence in the Hon ble High Court of Bombay, the said emails could not be seen. It is submitted that on perusal of the said emails dated 07.08.2020 and the enclosed representations, it may be seen that in those representations several points were raised against the impugned detention orders for consideration of the Hon ble Advisory Board but there was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . A copy of the said communication dated 05.08.2020 is also attached and annexed hereto as Annexure R-3. G. That the above facts indicate that, had the petitioners made a sincere effort to present their legal counsel before the Board, the same would have been considered by the Advisory Board. Also, if the Advisory Board had denied the representation of the petitioners through their legal counsel, there may have been a fit case of the violation of their right of equal treatment in representation before the advisory board but the present case certainly did not violate any rights of the petitioners as alleged by the petitioners. H. That it is respectfully further submitted that Respondents No. 1 and 2 did not make any separate request for presenting their case by a legal counsel. ShriNaresh Kumar, Deputy Secretary, COFEPOSA, Central Economic Intelligence Bureau, New Delhi presented the respondent No.1 and 2 in hearing before the Advisory Board on 07.08.2020. Further, the Respondent no.2, vide their letter dated 31.07.2020 had inter-alia requested the Respondent No.3 to depute a senior officer well conversant with the fact of the case to present the case before the Advisory B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said request of the petitioners dated 31.7.2020, there would have been an express communication to that effect to the petitioners. Only thereafter, there would have been a question of either the petitioners, or Mr. Batra, asking for a video link for the virtual hearing. In fact, the representation prepared by Mr. Batra dated 6.8.2020, the forwarding communication whereof has been shared by Mr. Kirtiman Singh with us during the course of hearing, proceeds on the basis that the representation made by the petitioner to seek permission to be heard through counsel is rejected. It is for this reason that Mr. Batra did not even ask for a video link. Mr. Kirpal submits that Mr. Kirtiman Singh s submission that Mr. Batra should himself have gone about enquiring the video link, if he was interested in joining the proceedings, has no merit. 10. Having heard learned counsels and considered their submissions in the light of the record, we are of the view that the fundamental right of the petitioners under Article 14 of the Constitution of India stood vitiated when they were denied the right of legal representation before the Advisory Board in the light of the fact that the respondent was, in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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