TaxTMI 
TaxTMI 
2020 (11) TMI 628
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....he detention, the petitioners had made a representation on 3.7.2020. In this representation the petitioners, inter alia, sought the right to be represented through a counsel before the Advisory Board. This representation was rejected by the Detaining Authority on 22.7.2020. Thereafter, the matter was referred to the Advisory Board and the office of the Advisory Board issued a communication dated 27.7.2020 to the petitioner through the Jail Superintendent concerned - where the petitioners were detained, informing the petitioner of the hearing fixed on 06.08.2020 and permitting him to make his representation. On 31.07.2020, memorandum was issued by the respondents, stating that: " Now, therefore, as per the intimation received from the Secretary, Advisory Board, COFEPOSA Act, 1974, Government of Maharashtra vide letter No. PSA-0720/1-2/ COFEPOSA/SPL-10 dated 27.7.2020 and further notice received on 30.07.2020, the cases of the aforesaid detenues will be interviewed by the Advisory Board via Video Conferencing on 07th August, 2020 (Thursday) at 02:00 p.m. in the Chamber of Hon'ble Justice Shri A.A. Sayed, Chairman, Advisory Board, Room No.46, Second Floor, High Court (Main Bu....
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....titioners, their request were not heeded into. The counter affidavit filed by respondent nos. 1, 2 and 4 (respondent no. 4 is the Advisory Board) is silent on this aspect, and there is no traverse made to this specific averment. In any event, Advisory Board returned its opinion finding sufficient cause for detention of the petitioners. Consequently, the petitioners have preferred this petition. 5. The petitioners have raised several grounds to challenge the detention orders. One of the preliminary submission of the petitioners is that before the Advisory Board, while the petitioners have been denied right to be represented through counsel, the respondent was represented through a counsel at the hearing. When we heard the matter earlier on 15.10.2020, we had passed the following order: "Mr. Kirpal has commenced his arguments. His first and foremost submission is that the petitioners had made a representation dated 3.7.2020 wherein they had specifically sought a right to represent their case before the Advisory Board. This representation was rejected on 22.7.2020. Thereafter, the petitioners had received a Memorandum dated 31.7.2020 from the respondents, which disclosed t....
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....ubmits that when it came to forwarding of representations, the Memorandum specifically referred to the representation submitted by the detenues or their counsel. However, other paras of the Memorandum referred to hereinabove were conspicuously silent about the petitioners being permitted to be represented through their legal representatives/ counsels. Mr. Kirpal further submits that the virtual hearing before the COFEPOSA Board took place on 7.8.2020. He submits that in that hearing, detenues were not represented through a legal representative. However, the respondents were represented - not only through their officers, but also through an Advocate. Mr. Kirpal submits that specific averments have been made in this regard in the rejoinder-affidavit. Mr. Kirpal has referred to and read extracts from the decisions of the Supreme Court in A.K. Roy v. Union of India and Others, (1982) 1 SCC 271 and Choith Nanikram Harchandani v. State of Maharashtra and Others, (2015) 17 SCC 688 in support of his submission that - as a facet of Article 14, the petitioners were entitled to equal treatment in the matter of their right of representation before the Advisory Board. Since this argume....
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....ncing on 06.08.2020 at 02:00 pm was rescheduled to be held via Video Conferencing on 07.08.2020 at 02:00 pm to consider the cases of the petitioners. Representations dated 31.07.2020 were sent by the petitioners through Superintendent of Jail through email which were received by the Advisory Board on dated 31.07.2020 at 06:47 pm and 06:59 pm respectively, wherein Muhammed Asif Karothukudy (Petitioner no.1) informed the Hon'ble Advisory Board that: "My advisory board will be held on 7.8.20 Mumbai High Court (Cofeposa advisory board). Adv. AshishBatra will represent at the time of video conference. He knows Hindi and English. But I don't know English or Hindi. I will represent my case details in the Hindi and Malayalam language." Similarly, the other petitioner namely Muhammed FasilVellmveeti Aboobacker (Petitioner no.2) informed the Hon'ble Advisory Board that: "My advisory board will be held on 7.8.20 Mumbai High Court (Cofeposa advisory board) Adv. AshishBatra will represent at the time of video conference. He knows Hindi and English. But I don't know English or Hindi. I will represent my case details in the Malayalam language. I don't know any ....
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....Board for consideration. A copy of the email dated 07.08.2020 by the petitioners to the Advisory Board is attached and annexed hereto as Annexure R-2 (Collectively). E. That above facts elucidate that the Respondent No.4 never refused or denied the petitioners to represent their case by their legal counsel since they never received a request for the same, but only intimation in this regard was made. It is pertinent to note that the second representation by the petitioners was sent to the Hon'ble Advisory Board on the date of hearing itself i.e. 07.08.2020 merely one hour before the commencement of the hearing of the concerned case. Hence, it is submitted that there is neither sincere effort on the part of the petitioners for making specific request regarding representation of their case by their legal counsel nor they shared the contact details of their legal counsel so that the link of the meeting could be sent to him. Conclusively, it appears that the petitioners are trying to mislead this Hon'ble Court in order to take undue benefit of the alleged procedural lapse on the part of the Hon'ble Advisory Board. It is reiterated that the contention of the petitioners that the....
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....t the respondents have admitted that they were represented through counsel, namely, Sh. Jitender Mishra, Advocate, before the Advisory Board at the time of personal hearing. Since this right was denied to the petitioner, the decision of the Supreme Court in the case of A.K. Roy v. Union of India and Others, (1982) 1 SCC 271 and Choith Nanikram Harchandani v. State of Maharashtra and Others, (2015) 17 SCC 688 are squarely attracted in the facts of the present case. The submission of Mr. Kirpal is that per se petitioners may not have a right to be represented before the Board through counsel, but once respondents were granted the said right, and they availed of it, the Advisory Board ought to have maintained parity in compliance of Article 14 of the Constitution of India, and it should have allowed the petitioner to be represented through counsel. Mr. Kirpal submits that the petitioners were never intimated by the respondents that the petitioners would be permitted to be represented through counsel. In fact, as aforesaid representation of the petitioners, inter alia, on this aspect, was earlier rejected on 22.7.2020. 8. Mr. Kirtiman Singh has placed reliance on the petitioner's ha....