Smti. Duter Padu v. Shri Gadam Ete

(iii) The records reveal that in the said election, as many as 429 (four hundr ed and twenty nine) Postal ballots were issued by the Returning Officer of No. 3 0 Aalo West Assembly (ST) Constituency. These Postal ballots were meant for thos e voters of the constituency, who were government servants and had been assigned election duties. Accordingly, as per the notified program, the voters concerned were allowed to receive the Postal ballots personally and cast their votes at t he Postal Ballot Facilitation Centre from 6-10-2009 till 11.10.2009. Records al so reveal that till the end of working hour on 11.10.2009, as many as 339 postal ballots were issued to the applicants by the In-Charge, Postal Ballot Cell, as well as the Presiding Officer, Postal Ballot. The remaining 90 postal ballots ( later on, clarified as 89 Postal ballots) of No. 30, Aalo West Assembly (ST) Con stituency, were booked by registered post, on 12.10.2009, at the Along Mukhya Da k Ghar (Aalo Post Office) by Sri Gomo Sora, Presiding Officer, Postal Ballot. Th e official records, maintained by the Returning Officer as well as the Postal De partment, confirm the fact that as many as 69 postal ballots , out of the 89 Pos tal ballots mentioned hereinbefore, went missing from Along Post Office after t hose had been booked by registered post, at Aalo Mukhya Dak Ghar (MDG), on 12.10 .2009. Postal records further establish the fact that those 69 Postal ballots w ere never delivered by the Postal Department to the respective applicants at any point of time and those remained, in terms of the relevant postal records, trac eless till today (though the said 69 postal ballots reached the Returning Offic er, as would be described below, through unauthorised channel). The fact, that t he postal ballots remained traceless, has been communicated to the Election Peti tioner by the Deputy Superintendent of Postal Services, Arunachal Pradesh, by hi s letter, dated 20.11.2009, in response to an application made by the election p etitioner under the Right to Information Act, 2005, seeking information in this regard. On having learnt about the missing postal ballots only on 17.10.2009, t (iv) he election petitioner and her agents had made several representations before va rious authorities drawing their attention to the said incident with a further re quest to, immediately, conduct an investigation and trace out the missing postal ballots. The said representations and/or complaints include the complaint, date d 17.10.2009 (Exhibit- PX-21), two First Information Reports, both dated 20.10.2 009 (Exhibits PX- 22 and PX- 23 respectively), lodged by Shri Kirdo Ete ( PW-21) , i.e., the Election Agent of the petitioner, as well as the complaints made by Shri Jumrik Ete (PW- 24), agent of the petitioner, on 19.10.2009 (Exhibit- PX- 2 8), before the Officer-in-Charge, Itanagar Police Station, with copies marked to the Chief Electoral Officer, Arunachal Pradesh, and the District Election Offic er, West Siang District, Aalo. Even Shri D.K.Deka (PW- 47), Post Master, Along P ost Office, had written letters, dated 17.10.2009 (Exhibit- PX- 47) and 21.10.20 09 (Exhibit- PX- 50), informing the Returning Officer about the said missing pos tal ballots . (v) On the basis of the complaints made by, and on behalf of, the petitioner, a Departmental Investigation was conducted by the Postal Department, which disc losed that 69 Postal ballots had, in fact, gone missing from Along Post Office. The investigation, so conducted, revealed that, on 20-10-2009, at about 7.00 am , one unknown person had handed over a bundle of 65 Postal ballots to Smti. Suk uni Sharma, a Gramin Dak Mail Service Carrier (GDSMC), outside Along Post Offic e, under threat with an instruction to hand over those Postal ballots to the As sistant Returning Officer (ARO) of the Constituency. Smti. Sukuni Sharma had, ac cordingly, received all those 65 Postal ballots from the unknown person, outsid e the Post Office, and, thereafter, handed over those 65 postal ballots to the ARO, Shri Kangki Darang, in the evening of 20.10.2009, who, in turn, received th e same and, thereafter, handed over the said 65 Postal ballots to the Returning Officer on the same day. Later on, it transpired that the unknown person was Sr i Darka Kamsi, an INC worker and counting agent of the Respondent. Sri Jayanta B hattacharya, Inspector of Post Office, who had conducted the inquiry, also recor ded the statement of Sukuni Sharma and other witnesses in his own hand writing, which were part of the record pertaining to the inquiry report, dated 21-10-2009 (PX-44). The statement of Sukuni Sharma had also been submitted before the Retu rning Officer on 21-10-2009. (vi) The records confirm the fact that those 65 Postal ballots, received by Sm ti Sukuni Sharma from the said INC worker outside the Post Office, were all part of the 69 Postal ballots that had gone missing from Along MDG after being booke d by registered post on 12.10.2009. It has also surfaced from investigation that all of those 65 Postal ballots were fraudulently cast in favour of the Responde nt (INC). (vii) On 20.10.2009, as many as 13 applicants of Postal ballots submitted 13 Affidavits [PX- 51 (1) to (13)] before the Returning Officer testifying to the e ffect that the Postal ballots , issued in their names, by post, had not been rec eived by them. On 21.10.2009, the election agent of the petitioner had made a fo rmal complaint before the Returning Officer (Exhibit- PX- 27) requesting him to cancel all those 65 Postal ballots , which had illegally received by Smti. Sukun i Sharma from unauthorised channel. (viii) Upon going through the said complaint and, on examination of the materia ls available before the Returning Officer, the Returning Officer had, initially, taken a decision to cancel all those 65 Postal ballots recovered/received thro ugh Smti. Sukuni Sharma from unauthorized source holding them to be tempered an d illegal. However, having made such a declaration in presence of both the conte sting candidates and their supporters, the Returning Officer, later on, shifted his stand and issued an order, dated 22.10.2009 ( Exhibit- PX- 52), cancelling o nly 48 Postal ballots , out of those 65 ( sixty-five) Postal ballots , which wer e received through Sukuni Sharma. Thus, by the order, dated 22.10.2009, the Returning Officer received 17 (ix) Postal ballots , from the bundle of 65, even after identifying all those Postal ballots as spurious Postal ballots . Having, thus, rejected the 48 Postal ball ots by order, dated 22-10-2009, with a further direction to keep those in a sea led packet, at the time of counting, the Returning Officer, eventually, counted, surprisingly enough, another 23 (twenty three) cancelled postal ballots from t he said bunch of 48 postal ballots already cancelled by him by order, dated 22. 10.2009. (x) Thus, in the manner aforementioned, the Returning Officer, in fact, coun ted, in favour of the respondent, as many as 40 (17 + 23) tampered Postal ballot s even after identifying those Postal ballots as spurious. In doing so, the s ole purpose of the Returning Officer, who had been influenced by the respondent and his election agent, who were personally present at the counting venue at the time of counting of the votes, was to assist the respondent to win the election by hook or by crook. Thus, under the influence of the respondent, the Returning Officer had improperly received all the said 40 (forty) Postal ballots knowing them to be spurious and, thereafter, illegally counted those Postal ballots in favour of the respondent (i.e., the returned candidate). (xi) That besides the said 40 Postal ballots , the Returning Officer had also illegally and improperly received and counted, in favour of the Returned Candid ate, one Postal Ballot issued in the name of Shri Jai Prakash Tiwari (counterfo il No.00053) despite the fact that his name had been deleted from the Electoral Roll of the said assembly constituency. The Returning Officer had also improper ly received and counted, in favour of the returned candidate, 2 (two) Postal bal lots under Counterfoil Nos. 000234 and 000316, both issued in the name of one S hri Karto Ete, whose name was included twice, in the Electoral Roll, in Part-13 , Serial No. 430 and, again, in Part-14, Serial No. 320. The Returning Officer h ad further improperly received and counted, in favour of the returned candidate, one postal ballot bearing Counterfoil No. 000407, issued in the name of Miss Jo mpi Padu, a school student, against Form-12 application of Shri Nyojum Ete. It i s worth mentioning that as per the list, submitted by the Postal Department, the Postal Ballot, issued to Shri Nyojum Ete, also forms part of the 69 ( sixty-nin e) Postal ballots , which went missing after those had been booked, at Aalo Post Office, on 12.10.2009. Thus, including the 40 spurious Postal ballots belongin g to the bundle of 65 as mentioned hereinbefore, the Returning officer had impro perly received and counted, in total, in favour of the returned candidate, as ma ny as 44 void votes, which materially altered the result of the election. (xii) It is also the specifically pleaded case of the Election Petitioner tha t as many as 69 ( sixty-nine) Postal ballots were stolen by the supporters of t he respondent under his instruction and with the help of Postal Officials, namel y, Shri D.K.Deka, Shri Jatin Dihingia and also Postal Ballot Presiding Officer, namely, Shri Gomo Sora. All those stolen Postal ballots were forged and tampered with by the respondent and his election agent with the help of their supporters and, thereafter, fake vote was cast in each of those postal ballots in favour o f the returned candidate. Thereafter, those stolen and tampered Postal ballots, numbering 65 in total, were bundled up and secretly handed over to Smti. Sukuni Sharma, under intimidation, outside the post office by Darka Kamsi, a supporter of the returned candidate, with the instruction to hand over the entire bundle t o the Assistant Returning Officer, Shri Kangki Darang. The ARO had actually rec eived the bundle of 65 Postal ballots from Sukuni Sharma and delivered those to the Returning Officer with full knowledge and understanding that those postal b allots were spurious. Thereafter, acting under pressure and influence of the re spondent and his election agent, Shri Deba Loya, the Returning Officer, Amjad Ta k, had received and counted 40 of those tempered Postal ballots in favour of th e returned candidate despite already having arrived at a categorical conclusion that those were all spurious ballots containing void votes. The Returning Office r had accepted the 17 tampered Postal ballots on being influenced by the respon dent. It is also the pleaded case of the petitioner that, on 22-10-2009, the re spondent was present in the counting hall and, when the respondent was seen to h ave been losing the election on the EVM count, the respondent further influenced the Returning Officer to count as many as 23 forged Postal ballots in his favo ur from the batch of the 48 rejected Postal ballots and the Returning Officer did so, without offering any explanation therefor, but with the obvious motive t o brighten the respondent’s wining prospect. (xiii) The election petitioner has, therefore, sought for a direction, under Section 100 (1) (d) (iii) of the Representation of the People Act, 1951, (in sh ort, ’the ROP Act’), declaring the election of the Returned Candidate to be void on account of improper reception of as many as 44 void Postal ballots . The Ele ction Petitioner has also sought for a further direction, under Section 101 of t he ROP Act, declaring her as the elected candidate on the ground that she had, i n fact, received a majority of the valid votes at the election to the said const ituency. (xiv) The election petitioner has further sought for a declaration that the election of the respondent to the 30 Aalo West (ST) Assembly Constituency is ill egal, null and void on the ground of commission of corrupt practice within the m eaning of Section 123 (7) of the ROP Act, 1951. 2. The respondent has resisted the election petition by filing his written statement, wherein the respondent has not specifically denied the averments, whi ch have been made by the election petitioner as regards the fact that 65 numbers of postal ballots , booked at Along Post Office, had gone missing. The responde nt has contended that the election petition is absolutely vague, non-specific an d does not disclose material facts and material particulars and, thus, it does n ot conform to the requirement of Section 83 of the ROP Act, 1951. That the elect ion petition does not disclose any ’cause of action’ and the election petition s uffers from non-joinder of necessary parties. The respondent further contends th at the statements, made in the election petition, are not verified in terms of t he legal requirement apart from the fact that the allegations made therein are v ague and bereft of any necessary particulars. 3. It is, at this stage, worth pointing out that the respondent had challen ged the maintainability of the election petition on several grounds, namely, tha t the true copy of the election petition had not been attested by the election p etitioner, the election petition is bereft of material facts and material partic ulars and/or that the election petition does not disclose any cause of action, e tc. By order, dated 19.08.2010, passed, in M.C.(EP) No.04(AP)/2010, the election petition was held by this Court (Hon’ble P.K. Musahary,J.) as maintainable and this decision has been upheld by the Supreme Court by order, dated 20.04.2011, p assed in SLP (Civil) No.26152/2010. The respondent had reserved the right to file additional or supplementar 4. y written statement, within appropriate time, as may be needed by him subject to grant of proper leave. However, neither any further written statement has been filed by the respondent nor has any reason for not filing such further written s tatement been assigned by the respondent. The pleadings, contained in the writte n statement, as filed by the respondent, therefore, have remained what they were . 5. Though the respondent denied that there was any improper reception of po stal ballots in favour of the returned candidate, or that the respondent, by hi mself or through his election agent, or any other person, acting with his consen t, is guilty of committing any corrupt practice within the ambit of Section 123( 7) of the ROP Act, 1951, as alleged by the election petitioner, the respondent h as, as already indicated above, neither disputed nor denied the fact that 65 num bers of postal ballots went missing. The respondent has not he denied that the Returning Officer had specifically announced, in presence of both the parties, t hat 65 numbers of postal ballots , which had been received by Sukuni Sharma, wou ld not be counted; but, later on, 17 postal ballots , out of the said bundle of 65, were counted and, thereafter, 23 more postal ballots were allowed to be cou nted without assigning any reason therefor and, thus, altogether 40 (23+17) post al ballots , out of the said earlier rejected 65 postal ballots , were counted a nd, on being so counted, these postal ballots were found to have been received b y the returned candidate. In fact, without denying, in specific terms, the role of Sukuni Sharma as recipient of a bundle of 65 postal ballots , the respondent has alleged to the effect that Sukuni Sharma is involved with the election petit ioner in falsely implicating the respondent. 6. Thus, the averments, made by the election petitioner to the effect that as many as 40 tampered/forged/spurious postal ballots were counted in favour of the respondent, remained without being specifically or pointedly denied. In fac t, at para 14 of his written statement, the respondent has taken the plea that (cid:28) it is impossible for the answering respondent to either affirm or deny the stat ements specifically in exercise of his right of defence in the instant proceedin g (cid:29). This apart, the respondent has not pleaded his version of the incident. Desp ite the fact that the incident of postal ballots having gone missing, the act o f receiving a bundle of 65 postal ballots out of the 69 missing postal ballots , by the postal employee, namely, Sukuni Sharma, had been, in the light of the e lection petition, within the knowledge of the respondent well before the countin g process had commenced, but the correctness of the averments, made, in this reg ard, by the election petitioner, having not been denied, the same have to be tre ated as admitted facts. Bearing in mind what is indicated above, let me, now, come to the issues

7. . Based on the pleadings, the following issues were framed: a. b. Whether the election petition discloses any ’cause of action’? Whether there was any improper reception and counting of 44 (forty four) void postal ballots in favour of the returned candidate materially affecting t he result of the Election? c. Whether there was delivery of as many as 65 forged, spurious, fake and t ampered postal ballots by some unknown persons to Smti. Sukuni Sharma, a postal employee of Along Mukhya Dak Ghar, outside the post office beyond the office ho urs , who in turn delivered the same to Assistant Returning Officer on 20.10.200 9? Whether any of those forged postal ballots have been received and count d. ed by the Returning Officer in favor of the returned candidate materially affect ing the result of the election in question? e. fined under Section 123(7) of the R.P. Act, 1951? Whether the election petitioner has, in fact, received the majority of t f. he valid votes polled in the election and hence, entitled to a declaration under Whether the respondent is guilty of commission of corrupt practice as de Section 100(d) of the R.P.Act, 1951? g. Whether the election petitioner is entitled to a declaration under Secti on 101 of the R.P.Act, 1951, that she has been duly elected to 30 Aalo West Asse mbly Constituency in the election held on 13.10.2009? h. e law? (cid:29) To what other relief(s), the election petitioner is entitled to under th

8. I have heard Mr. N Dutta, learned Senior counsel, and Mr. S. Shyam, lear ned counsel, for the election petitioner. I have also heard Mr. DK Mishra, learn ed Senior counsel, and Mr. M. Nath, learned counsel, for the respondent.

9. In support of her case, the election petitioner has adduced evidence, bo th oral as well as documentary, by examining 53 witnesses including herself. The respondent, too, has adduced oral evidence by examining witnesses including him self and his witnesses.

10. Let me, now, consider the issues and take decisions thereon. Issue No. a :- Whether the election petition discloses any ’cause of action’? 11. Before entering into the question whether the election petition disclose s any ’cause of action’, it may be pointed out that ’cause of action’ implies a right to sue. ’Cause of action’ is not defined in any statute. It has, however, been judicially interpreted, inter alia, to mean every fact, which would be nece ssary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Thus, the material facts, which are imperative for t he suitor to allege and prove, constitute the ’cause of action’. Negatively put, it would mean that everything, which, if not proved, gives the defendant an imm ediate right to judgment, would form part of ’cause of action’, [Kusum Ingots an d Alloys Ltd. Vs. Union of India, reported in (2004) 6 SCC 254].

12. What is, now, of immense importance to note is that the question as to w hether the pleadings, in the Election Petition, are or are not true and correct, would be a question of fact, but these pleadings, for the purpose of determinin g the ’cause of action’, have to be assumed to be true and correct and, on this assumption and basis, the Court is required to determine whether the facts, so p leaded, if remain without being traversed, would entitle the election petitioner to the reliefs, which she has sought for and, if the pleadings, in question, en title her to the reliefs, which she seeks, then, the Court is bound to hold that the election petition discloses ’cause of action’.

13. What may, now, be noted is that the election petitioner has pleaded, in Paragraphs 10 (I) to Paragraphs 10 (XX) of the Election petition, the facts and particulars regarding the void postal ballots , which were improperly received a nd counted in favour of the respondent. In paragraph 10 (I) to paragraph10 (VI) of the election petition, the election petitioner has given the detailed facts a nd particulars of the Postal ballots of 30 Aalo West Assembly Constituency, whi ch had been booked, by registered post, on 12.10.2009, but, ultimately, went mis sing from the post office. At paragraph10 (XII), the election petitioner has giv en, in tabular form, the particulars including the registered letter numbers, na mes of the applicants, who applied for postal ballots in respect of 30 Aalo Wes t (ST) Assembly Constituency, which had been booked, on 12.10.2009, for despatch to the respective applicants. In Table AA of the election petition, the particu lars of those postal ballots , which were delivered to the addressees, numbering 22, have been furnished and in Table AB, particulars of those 69 postal ballots (actually 68, since the name of Tonya Padu has been erroneously mentioned twic e), which were allegedly never delivered to the applicants, have been furnished. From Paragraph10 (XIII) to 10 ( XXII) of the election petition, it has been spe cifically pleaded as to the manner in which the respondent succeeded, with the h elp and complicity of the postal ballot presiding officer, Gomo Sora, and the ot her postal officials, in getting the said illegal and void postal ballots count ed in his favour. In paragraphs 10 (XIV) of the Election petition, it has been s pecifically pleaded that the 65 missing postal ballots were forged and tempered by the respondent, whereby fake votes were cast by his agents in favour of the respondent. In paragraph 10 ( XV) and 10 (XVI), the election petitioner has cate gorically pleaded that as many as 40 postal ballots , out of the bundle of 65 fo rged postal ballots , were counted in favour of the respondent. In paragraph 10 ( XVII) to (XIX), the election petitioner has pleaded the facts and particulars in support of the allegation that as many as 4 ( four) postal ballots , issued i n the names of Jaipraksh Tiwari, Karto Ete, Jompi Padu and Penya Ete, were impro perly received and counted in favour of the respondent. In paragraph 10 (XII) of the election petition, the petitioner has categorically pleaded as to how the i mproper reception of postal ballots , numbering 44 (forty four), has materially affected the result of the election.

14. In paragraph 11 of the election petition and 40 sub-paragraphs, numbered as (I) to (XL), the election petitioner has pleaded full material facts and par ticulars in support of her allegation of corrupt practice committed by the respo ndent himself and his election agent. In paragraph 11 (II), the election petit ioner has specifically pleaded that reception of the Postal Officials were undul y influenced by the respondent himself and his election agent, Deba Loya. In the various sub-paragraphs of paragraphs 11 (III) to 11 (XXI), the election petitio ner has pleaded the material facts and particulars showing the manner in which t he corrupt practice, alleged against the respondent, had been planned and perpet rated by him as well as the various attempts made by the election petitioner and her agents to prevent such corrupt practice. In paragraph 11 (XXII) to (XXVI), the election petitioner has specifically pleaded as to the time, mode and manne r in which the respondent himself and his Election Agent had influenced the Retu rning Officer and obtained his assistance in furthering the respondent’s poll pr ospects thereby committing corrupt practice within the meaning of Section 123 (7 ) of the ROP Act, 1951. For the sake of ready reference, the pleadings, containe d in paragraph 11 (XXII) to (XXVI), are reproduced below:- (cid:28) (XXII) e, Election Agent, TMC, 30 Aalo West Assembly Constituency was taken up for cons ideration by the Returning Officer on 22.10.09 in presence of the Agents of bo th the contesting candidates and before commencing the counting of the Postal ba llots . On examination of the contents of the complaint dated 21.10.09 as well a s the material evidence and correspondences available on record, the Returning O fficer had initially made a declaration in presence of the Election Agents of th e Petitioner as well as the Respondent that all of those 65 (sixty five) Postal ballots recovered from the custody of Smti Sukuni Sharma out side the Post Off ice, which were easily identifiable, were forged and tampered and hence invalid in the eye of law. The Returning Officer had taken a decision not to admit any That the complaint dated 21.10.09 lodged by Sri Kirdo Et of those 65 Postal ballots in the counting process. (XXIII) That having declared that all the 65 postal ballots were tampered and hence stands rejected, curiously enough, later on acting under pressure a nd undue influence of the Respondent, the Returning Officer had changed his ear lier stand and decided to reject only 48 Postal ballots from the aforesaid bunc h of 65 handed over to Smti. Sukuni Sharma outside the Post Office by un inden tified persons. Accordingly, the Returning Office, Sri Amjad Tak, IAS, had pas sed an order dated 22-10-2009 during the period when the counting of Postal bal lots was going on. It may be stated herein that in the order dated 22-10-2009 t he Returning Officer had not only taken note of all the materials on record sugg esting that the genuine applicants did not receive the said Postal ballots but he had also recorded a finding of fact that those 65 Postal ballots were found by Smti Sukuni Sharma from out side the Post office. Smti Sukuni Sharma has ev en made a statement in writing addressed to the Returning Officer confirming the fact that those 65 ballots were hand delivered to her outside the Post Office by some unknown person under threat. (XXIV) That from a bare perusal of the said order dated 22-10-2009 pass ed by the Returning Officer, it would be apparent on the face of the record that he has acted in most biased and unfair manner in picking and choosing only 48 P ostal ballots from the bunch of 65 forged Postal ballots for the purpose of rejection. Save and except the influence exerted by the Respondent, there was ab solutely no reason or basis for the Returning Officer to accept any of those 65 forged Postal ballots , let alone the 17 accepted by him by the order dated 2 2-10-2009. (XXV) That the extremely bias and partisan attitude of the Returning Off icer would further appear from the fact that even after having categorically rej ected those 48 Postal ballots by the order dated 22-10-2009 , as aforesaid, th e Returning Officer had eventually counted as many as 23 Postal ballots from t he lot of those 48 rejected Postal ballots which were admittedly tampered and hence kept in a separate bunch. (XXVI) That it is stated and submitted that in the manner indicated her e-in-before, notwithstanding the order dated 22-10-2009 as well as all the offi cial correspondences regarding the 69 missing Postal ballots , ultimately the Re turning Officer had actually accepted as many as 40 Postal ballots from the b unch of 65 tampered and forged Postal ballots which were all void votes. Only 25 Postal ballots from the bunch of 65 forged Postal ballots had ultimately be en rejected by the Returning Officer on having found those as invalid. (cid:29)

15. Bearing in mind what has been held above, it may be further pointed out, as already indicated above, that this election petition challenges the election of the respondent on two grounds, namely, (i) ’improper acceptance’ of postal b allots and (ii) corrupt practice allegedly indulged in by the respondent. (Emphasis is added).

16. With regard to the above, the pleaded case of the election petitioner is that as many as 69 numbers of postal ballots, which were addressed to the voter s of 30 Aalo West Assembly Constituency, were booked, at Along Post Office, by r egistered post. Out of the postal ballots so booked by registered post at the s aid post office, as many as 69 postal ballots went missing. Out of the said 69 missing postal ballots , 65 postal ballots were handed over to Sukuni Sharma, a n employee of the said post office, by an unauthorized person, whose identity, l ater on, came to light as Darka Kamsi, a counting agent of the election petition er. As regards reception of postal ballots by Sukuni Sharma, a First Informatio n Report was lodged with the police and a case was registered in this regard.

17. It is also the pleaded case of the election petitioner that on the basis of the investigations, which were carried on by the Police as well as the Posta l Department into the causes of missing postal ballots and, on the representati on made by the election petitioner that the postal ballots , received through un authorized channel by Sukuni Sharma, ought not to be counted, the Returning Offi cer, initially, kept, out of the said 65 postal ballots, 48 postal ballots excl uded from counting, but decided to nevertheless count, without assigning any spe cific reason, 17 ballots from the said bundle of 65 postal ballots . The further pleaded case of the election petitioner is that when the res 18. pondent was found losing the election, as many as 23 postal ballots , out of the said 48 postal ballots , which had been, initially, kept excluded from the coun ting by the Returning Officer, according to the election petitioner, were counte d in favour of the respondent by the order of the Returning Officer. Thus, altog ether, 40 postal ballots (i.e., 17+23) were counted at the time of counting on 2 2.10.2009. If these postal ballots, which were counted in favour of the responde nt, had been kept excluded from counting, the election petitioner would have won the election.

19. It is the specifically pleaded case of the election petitioner that for the reception of 40 forged, tampered and fabricated postal ballots , no explanat ion has been offered by the Returning Officer. This apart, one postal ballot was issued in favour of Jay Prakash Tiwari, whose name had already been removed fro m electoral rolls and the postal ballot, so issued in favour of Jay Prakash Tiwa ri, could not have been and ought not to have been counted at the counting. Simi larly, two postal ballots were issued to one elector, namely, Kirdo Ete. In the face of these facts, none of the said two postal ballots, in terms of Section 6 2 of the ROP Act, 1951, could have been counted. Furthermore, one postal ballot was, admittedly, issued in favour of Jompi Padu, who is, concededly, a student a nd, being a minor, no postal ballot could have been issued to her. This postal b allot was issued against an application, which had been made, in Form-12, by one Nyojum Ete and the postal ballot, issued in the name of Nyojum Ete is shown mis sing from the post office. This postal ballot too was, for no explained reason, counted in favour of the respondent.

20. What may, now, be pointed out is that the facts, so pleaded in the elect ion petition, may or may not be true. However, for the purpose of determining as to whether the election petition discloses any ’cause of action’ or not, the fa cts, pleaded in the election petition, have to be assumed as true and correct an d if one proceeds on this assumption, it becomes clear that the election petitio n contains sufficient pleadings as regards acceptance of, or improper reception of, postal ballots , which is a ground, under Section 100 (1)(iii) of the ROP Ac t, 1951, to declare the election of the returned candidate illegal. The facts, s o pleaded, thus, constitute a sufficiently clear ’cause of action’ for filing th is election petition.

21. Yet another ground on which the election of the respondent is challenged is the ground of corrupt practice allegedly indulged in by the respondent. In t his regard, the election petitioner’s specific allegation is based on Section 12 3(7) of the ROP Act, 1951, which lays down to the effect that at attempt of a ca ndidate or his election agent, even without the consent of the candidate, to obt ain or to procure any assistance from any person for furtherance of the prospect s of the candidate’s election amounts to corrupt practice and, more so, when the persons concerned are not only Government servants, but Gazetted Officers, such as, the Returning Officer.

22. Corrupt practice, according to the election petitioner, stands establish ed inside the counting hall itself, when the respondent and his agents insisted upon the Returning Officer to count the rejected postal ballots and, on such in sistence, 23 postal ballots , as mentioned above, were counted as per the order of the Returning Officer and the said 23 postal ballots , when counted, were fou nd to have been cast in favour of the respondent. For counting the said 23 posta l ballots, no explanation could be offered by the Returning Officer. Thus, the e lection petition also makes out a ’cause of action’ for challenging the election on the ground of ’corrupt practice’.

23. In the present case, if the pleadings, in the written statement, are ass umed to be true and correct, it becomes abundantly clear that the pleadings, con tained therein, disclose ’cause of action’. In fact, nothing material or signif icant could be submitted, on behalf of the respondent, to show that the pleading s, if remain unchallenged and assumed to be true, would not disclose ’cause of a ction’ and entitle the election petitioner to the reliefs, which she has sought for. 24. Situated thus, this Court has no hesitation in holding that the Election Petition does disclose ’cause of action’. The issue No.a is, therefore, answere d in the affirmative and in favour of the election petitioner. 25. Let me, now, come to issue Nos. b, c and d, because all these three issu es are inextricably inter-linked with each other and the decision, on any of the se issues, would have a material bearing on the outcome of the remaining issues. The issue Nos. b, c and d read as under:

26. b. Whether there was any improper reception and counting of 44(forty four) void postal ballots in favour of the returned candidate materially affecting the resu lt of the election? c. Whether there was delivery of as many as 65 forged, spurious, fake and tamper ed postal ballots by some unknown persons to Smti. Sukuni Sharma, a postal emplo yee of Along Mukhya Dak Ghar, outside the post office beyond the office hours , who in turn delivered the same to Assistant Returning Officer on 20.10.2009? d. Whether any of those forged postal ballots have been received and counted by the Returning Officer in favor of the returned candidate materially affecting th e result of the election in question?

27. These issues pertain to the improper acceptance of postal ballots and si nce the difference of votes between the petitioner and the respondent is thin, t he improper acceptance of postal ballots, alleged to be tampered, has been proje cted as one of the grounds for declaring the election void. 28. (cid:28)Grounds for declaring election to be void. (1) <http://www.indiankanoon.org/doc/1620593/> Subject to the provisions of sub- Section 100 of the ROP Act, 1951, provides as follows: section (2), if the High Court is of opinion- (a) <http://www.indiankanoon.org/doc/44202/> & & & & & & & & & &.. or (b) <http://www.indiankanoon.org/doc/930164/> that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or (c) <http://www.indiankanoon.org/doc/1804485/> & & & & & & & & & & &; or (d) <http://www.indiankanoon.org/doc/1502465/> that the result of the election, in so far as it concerns a returned candidate, has been materially affected. (i) <http://www.indiankanoon.org/doc/1121838/> by the improper acceptance of any nomination, or The grounds, mentioned in Section 100 (d)(iii), are relevant in the pres (ii) <http://www.indiankanoon.org/doc/1817476/> by any corrupt practice committe d in the interests of the returned candidate 5[ by an agent other than his elect ion agent], or (iii) <http://www.indiankanoon.org/doc/600710/> by the improper reception, refus al or rejection of any vote or the reception of any vote which is void. (cid:29) 29. ent context. 30. In her evidence, the petitioner deposed that the respondent, Shri Gadam Ete, had contested the election as a candidate from Indian National Congress ( i n short, the INC’), and was the only contesting candidate against the election petitioner from No. 30 Aalo West Assembly (ST) Constituency. The result of the e lection was declared, on 22.10.2009, wherein the respondent was declared as the elected candidate having 5113 votes polled in his favour as against the 5082 vot es polled in favour of the election petitioner, the difference, in votes, obtain ed by the petitioner and the respondent, being 31 (thirty one) votes only. In te rms of the votes, counted from the Electronic Voting Machines (in short, ’EVMs’) , it is the election petitioner, who would have won the election, but because of the fact that as many as 45 postal ballots, which were, otherwise, spurious and forged, had been counted, though there was specific order passed earlier by the Returning Officer not to count these postal ballots inasmuch as they had been received by the authorities concerned through illegal and unauthorised channels. The respondent, thus, came out as the returned candidate. The difference in the votes was, according to the election petitioner, due to improper reception of t he forged, tampered and spurious postal ballots and illegal counting thereof. POSTING OF POSTAL BALLOTS AND RECEIPT BY THE POST OFFICE 31. While considering the above issues, it is imperative to point out that E xt. PX 56 is a register, which would go to show that 89 registered letters, each containing one postal ballot, pertaining to the voters of 30 Aalo West Assembly Constituency, were booked, by registered post, on 12.10.2009, by Gomo Sora (PW4 3), Presiding Officer, Postal Ballot, who has confirmed this fact in his deposi tion and whose evidence has gone unchallenged. There is also no dispute that as many as 89 postal ballots were received by Postal Assistant, Jatin Dihingia (PW 46), from Gomo Sora, on 12.10.2009, by putting his signature, which stands prove d as Ext. PX 56(1).This fact has been confirmed by Jatin Dihingia (PW46) too. Ja tin Dihingia (PW46) has deposed, in his evidence, as follows: (cid:28)at about 5.30 am, on 12.10.2009, Mr. D.K.Deka, our post master, at Along, came to my official quarter and knocked at the door of my residence and, on my openi ng the door, he asked me to come to the official quarter. When I went there, I f ound there present one man, who was introduced to me by Mr. Deka as Gomo Sora, w ho gave me a list and told me that the said list contains the names of the perso ns, who would be issued postal ballots and that I should keep the list with me and give him the postal ballots of persons, named in the list, after I receive the postal ballots during the course of the day. (cid:29)

32. PW46 (Jatin Dihingia) has also deposed that he was earlier scared, but h e, ultimately, decided to speak the truth and with the decision, so taken, he fe els less frightened, but he is still scared. PW46 has reiterated, in his cross-e xamination, that at his residence, in presence of Gomo Sora, Mr. D.K. Deka (PW47 ) told him (PW46) that the political parties were strong and he (PW46) should do what he has been asked to do. Though PW46 has acceded that the facts, which he has deposed in the election trial, had not been stated by him earlier neither at the time, when his statement was recorded by police, nor in his departmental pr oceeding, because he was scared.

33. What is important to note, in the evidence of PW46, is that he has depos ed that nobody has threatened him on the day, when he gave evidence in the Court , but he clarified that he had been, during the last two years, under tremendous mental pressure, because he had not spoken the truth mainly because of the fact that their Post Master (i.e., D.K. Deka), did not correctly inform their Head O ffice about the postal ballots . PW46 has further clarified that it was on 12.10 .2009 that he was put in fear, when D.K. Deka told him about the strength of the parties involved.

34. Responding to the suggestion of the respondent that his statement, given on both days, were false, PW46 has reacted by saying that whatever he stated ’y esterday’ was true except that he could not complete his statement ’yesterday’ a nd could not tell the whole truth. 35. Though it has been contended by Mr. Mishra that PW46 cannot be relied up on, because of the fact that he had a somersault on the next day, i.e., on 30.09 .2011, the evidence of PW46, given on 30.09.2011, was not a somersault, but the complete truth, which he has clarified in his cross-examination. It was not even suggested to PW46 that he was giving his statement under threat or at behest of , or being influenced by the election petitioner, her election agent or supporte rs. 36. It is of utmost significance to note that it was not even suggested to P W46 by the respondent that the evidence, given by him (PW46), was under threat, coercion, persuasion or influence of the election petitioner. There was, in fact , no damaging cross-examination of PW46 and nothing has been elicited from his c ross-examination to show that what he deposed were false or untrue or that the e vidence, given by him, were under the influence of the election petitioner. The suggestion, therefore, offered to PW46 by the respondent to the effe 37. ct that his evidence is false has remained as a mere suggestion and cannot eithe r weaken the case of the election petitioner nor strengthen the case of the resp ondent. Far from this, the evidence of PW46 supports the election petitioner’s c ase that from the very inception, manipulation of postal ballots was designed an d implemented with the help of the Government servants. The evidence of PW46 ins pires great confidence and this Court sees no reason to disbelieve or discard hi s evidence as unworthy of trust. In fact, if I may reiterate, nothing has been e licited from the cross-examination of PW46 by the respondent to show that this w itness’s evidence cannot be trusted or relied upon. MISSING OF POSTAL BALLOTS AT THE RECEIVING POST OFFICE 38. PW2 (C.L. Lalfakzuala), who is Director of Postal Services, Arunachal Pr adesh, produced the record (PX33) showing delivery status of the postal ballots, in question, as per official record maintained by the Postal Department. The sa id document (PX33) bears the registered letter numbers, names of the postal ball ot applicants as well as the destination Post Offices confirming the fact that a s many as 69 postal ballots, out of the said 89 postal ballots, had never been d elivered to their respective applicants and remained traceless. 39. On the basis of the complaints made by, and on behalf of, the petitioner , a Departmental Investigation was conducted by the Postal Department. PW3 (Jaya nta Bhattacharjee), an Inspector of Post Offices, has proved Ext. PX44 as his en quiry report, dated 21.10.2009. 40. PW2 has also proved Ext. PX 8 as well as the signature thereon were give n by the then Postal Deputy Superintendent, A.K. Shyam, who has since retired fr om service. PW2 has also confirmed that Ext. PX8 was issued to the election peti tioner by A.K. Shyam, the then overall in-charge of the Postal Department, in re sponse to an application, made under the Right to Information Act, 2005, and the same was provided on the basis of an enquiry conducted by the Postal Department . PW2 has also produced Ext.PX38, in original, which is the enquiry report, date d 21.10.2009, submitted by Shri Jayanta Bhattacharjee, Inspector of Post Office, Central Sub-Division, Pasighat. PW2 has further produced, in original, the stat ement of Sukuni Sharma recorded by said Jayanta Bhattacharjee. PW2 has also prod uced Ext. PX 43, which is the office copy of Ext. PX8, which had been earlier fu rnished to the election petitioner under the Right to Information Act, 2005. PW2 has produced from his custody the copy of the letter, dated 20.11.2009, in orig inal, issued by A.K. Shyam to the Returning Officer marked as Ext. PX 36 recordi ng the communication of the Postal Department to the Returning Officer regarding missing postal ballots.

41. This witness (PW2) has also confirmed that a proceeding has been drawn a gainst Sukuni Sharma in connection with the missing postal ballots and that cha rge-sheet has been issued not only to D.K. Deka, but also Jatin Dihingia (PW46). 42. Coupled with the above, the Returning Officer (PW30) and the Assistant R eturning Officer (PW49) have also confirmed the fact that 89 postal ballots wer e issued to the voters of 30 Aalo West Assembly Constituency and had been booked , by registered post, at Along Post Office on 12.10.2009. Ext. PX 58, produced b y PW30, is the computerised receipt of 168 registered letters containing postal ballots booked at Along Post Office on 12.10.2009, which bears the booking reco rd of those 89 postal ballots . It may be noted that Ext. PX26(2) is the copy of Ext.PX58, which was earlier provided to the election petitioner by the Assistan t Returning Officer in response to her application made under the Right to Infor mation Act, 2005. 43. It is also worth noticing that Ext. PX5 is the letter, dated 03.11.2009, issued by Itanagar Head Post Office under the signature of the Post Master, Dep uty Post Master and the Postal Assistant furnishing particulars of 57 postal bal lots of 30 Aalo West Assembly Constituency, which were never received by Itanag ar Post Office. The respective Sub-Post Masters, i.e., PWs 34 to 39, have also c onfirmed that they had never received the postal ballots addressed to the respec tive post offices. 44. al ballots went missing at the receiving post office. ROLE OF SUKUNI SARMA & RECEIPT OF POSTAL BALLOTS BY THE Assistant Returning Offi 45. Coming to the evidence of Sukuni Sharma (PW4), it may be noted that in h er evidence, she has confirmed the fact that 65 letters, addressed to the Assist ant Returning Officer, were received by her, on 20.10.2009, at about 7 am, from one person, whom she has identified as Darka Kamsi. It may be noted, in this reg ard, that Darka Kamsi was also a counting agent of the respondent at the place o f counting. In her cross-examination by the election petitioner, on being declar ed hostile, PW4 (Sukuni Sharma) has admitted that she stated before the enquiry officer (PW3) that there were postal ballots inside the 65 envelopes, which had been handed over to her. PW4 has also confirmed the fact that the Assistant Retu rning Officer took, on 20.10.2009, the said 65 letters from her. 46. PW4 has proved her statement and her signature recorded by the Enquiry O fficer (PW3). In fact, in her evidence, PW4 has, in no uncertain words, deposed, (cid:28)I knew Darka Kamsi for a long time before he handed over 65 numbers of letters to me. (cid:29) This witness has further confirmed that she had taken the 65 postal bal The evidence, as discussed above, leaves no room for doubt that the post lots. 47. Surprisingly enough, however, the respondent did not even suggest to PW4 challenging the truthfulness or correctness of her assertion that she had recei ved the postal ballots from Darka Kamsi. It is to be noted that it has not been the case of the respondent that 69 postal ballots of 30 Aalo West Assembly Con stituency did not go missing after the same were booked, by registered post, on 12.10.2009, at Along Post Office nor is it the case of the respondent that 65 po stal ballots were received illegally through Sukuni Sharma. 48. What is most surprising is the fact that there is no denial by the respo ndent that the said 65 postal ballots, received through unauthorised channel by Sukuni Sharma, form part of the 69 postal ballots, which went missing from Along Post Office. This apart, the Returning Officer (PW30) has confirmed the fact th at 65 postal ballot papers, which were in his custody on 20.10.2009, were illeg ally received by Sukuni Sharma on 20.10.2009 and the said fact has also been ref lected in his (Returning Officer’s) order, dated 22.10.2009, which is marked as Ext. PX52.

49. It has, therefore, surfaced unscathed by clear, cogent, reliable and tru stworthy evidence on record that out of 89 postal ballots of 30 Aalo West Legis lative Assembly Constituency, booked by registered post, at Along Post Office, o n 12.10.2009, as many as 69 Postal ballots went missing and were never delivere d to those, who had applied for the said postal ballots . However, 65 postal bal lots, out of the said 69, were received back by the Returning Officer through un authorised source of Sukuni Sharma (PW4) in the manner as indicated above. Thus, the petitioner has considerable force, when it is submitted, on he 50. r behalf, that 69 postal ballots went out of the legitimate channel after 12.10. 2009 and became spurious postal ballots and these postal ballots could not have been, and ought not to have been, counted in view of the mandate of law as conta ined in Rule 54 (11) read with Sub-Rule 8(c) of the Conduct of Election Rules, 1 961. 51. None of the said 65 spurious ballots could have been received or counted by the Returning Officer. At the same time, it is also the undisputed position of fact, emerging from the evidence on record, that as many as 40 spurious posta l ballots, belonging to the said bunch of 65 spurious ballots, received through unauthorised channel of Sukuni Sharma, had, indeed, been counted by the Returnin g Officer in favour of the respondent. 52. While considering the issue Nos. b, c and d, what cannot be ignored and must not be ignored is the fact that the Returning Officer has confirmed the fac t that altogether 425 postal ballots of 30 Aalo West Legislative Assembly Consti tuency had been received and counted in the counting process. The Returning Offi cer has also confirmed, in his evidence, on the basis of the contents of Ext. PX 52, the fact that he had, by order, dated 22.10.2009 (as reflected from Ext. PX5 2) had rejected 48 postal ballots from the bunch of 65 postal ballots received from unauthorised channel of Sukuni Sharma.

53. It is, thus, an admitted position that as many as 17 postal ballots from the said bunch of 65 spurious postal ballots, received by Sukuni Sharma (Pw4), came to be counted by the Returning Officer despite being aware of the fact that these spurious ballots had gone missing and, having been received through unaut horised channel, ought not to be counted. The Returning Officer (PW30) has miser ably failed to explain as to why he happened to count the 17 spurious postal bal lots belonging to the bunch of 65 postal ballots received through Sukuni Sharm a nor is there any explanation discernible, in this regard, from the materials o n record. One can also not ignore the fact that the Returning Officer (PW30) has, 54. in fact, conceded, in his evidence, that he had received the letters, namely, Ex t. PX47, 48 and 50, issued by D.K. Deka as also the 13 affidavits, submitted by the Government employees, namely, Exts. PX51 (1) to 51(13). Under the weight of cross-examination by the election petitioner, PW30 (Returning Officer) has confi rmed the entries made in Ext. PX53 and accepted the fact that in the final analy sis, it is only 25 postal ballots , out of the said 65 spurious postal ballots , which come to be, eventually, rejected by him.

55. In effect, thus, PW30 (Returning Officer) has confirmed that besides 17 postal ballots from the said bunch of 65 postal ballots (which were all reject ed by him at the initial stage), 23 postal ballots , out of the remaining 48 rej ected postal ballots , came to be, finally, counted by him. Why he (Returning Of ficer) decided to count any of the Postal ballots, out of the said 65 Postal bal lots, the Returning Officer has no answer, far less a convincing and reasoned an swer, to offer. IMPACT OF COUNTING OF POSTAL BALLOTS ON THE ELECTION RESULTS-WHETHER MATERIALLY AFFECTED THE ELECTION RESULT The Returning Officer’s evidence, given in this regard, works as an eye- 56. opener inasmuch as he states, (cid:28)65 (sixty-five) numbers of ballot papers, which w ere received by Smti. Sukuni Sharma, ought to have been excluded and not counted . I did not however, reject the said 65 postal ballots (cid:29). He further stated that (cid:28)the said 48 postal ballots, which I had rejected, formed part of the said 65 po stal ballots, which were delivered to Smt. Sukuni Sharma. Thus, 17 more postal b allots ought to have been rejected. However, 17 postal ballots were not rejected , because out of the 65 postal ballots, received by Smt. Sukuni Sharma only 48 b allot papers were directed by me to be kept separately and not to be counted (cid:29). 57. In the face of the above evidence of the Returning Officer himself, ther e can be no escape from the conclusion that even the Returning Officer concedes that he ought not to have counted, and yet counted, as many as 40 postal ballots out of the said bundle of 65 postal ballots, which had reached his hands throug h unauthorized channel of Smt. Sukuni Sarma. In no way, therefore, the receipt of the 40 postal ballots could be justified by the Returning Officer or by the r espondent. 58. What is surprising to note, while considering the above evidence of the Returning Officer (PW30), is that while cross-examining him (PW30), the responde nt did not question the veracity of the above evidence of PW30. Thus, even the r espondent has acceded to the fact that the Returning Officer initially counted, for no assigned reason, 17 postal ballots, which had come to him through the una uthorised source of Sukuni Sharma (PW4). Why PW30 allowed the counting of these 17 postal ballots, there is absolutely no answer. This silence is propounded by yet another fact that out of the remaining 48 postal ballots, which had been dir ected by PW30 himself by his order, dated 22.10.2009, to be kept in a sealed cov er and not to be counted, as many as 23 postal ballots were, eventually, counted . Here again and, as usual, for counting the said 23 postal ballots, there is re ally no answer and no explanation. This apart, 17 applicants of the said postal ballots have confirmed, in their evidence, that they had not received their post al ballots. These 17 witnesses are PW5 to PW8, PW10, PW11, PW13 to PW15, PW19, P W20, PW22, PW23, PW25, PW26, PW31 and PW 52. What is also interesting to note is that the Returning Officer (PW30) ha 59. s admitted that it was possible to identify the 65 spurious postal ballots, whic h had been received through Sukuni Sharma and could have kept excluded from coun ting. There is no explanation given either by the respondent or by the Returnin g Officer or from any officials connected with the process of election, in the p resent case, as to why no attempt was made to identify those 65 postal ballots, which had been received by Sukuni Sarma, and to keep the same excluded from bein g counted. 60. It may, now, be noted that on an application, made by the petitioner, an order was passed, on 11.03.2011, by this Court (Hon’ble P. K. Musahary, J) in t he present election petition, allowing inspection of records. A Special Leave Pe tition was moved against the said order, but the said SLP was dismissed by the S upreme Court. During the course of this inspection, as the evidence on record di scloses, the petitioner’s representative examined Form No.13A of the said 40 spu rious ballots, which were counted, and, by correlating the counterfoil number of the said 40 postal ballots, he could identify the said 40 postal ballot papers. From the evidence of PW53, who had inspected and examined the records, it has s urfaced that all the 40 spurious Postal Ballots were cast in favour of the respo ndent and these spurious 40 Postal Ballots were, eventually, counted, on the ord ers of the Returning Officer, in favour of the respondent. The particulars of th e said 40 forged postal ballots have been indicated in a tabular form in the exa mination-in-chief of PW53. 61. During the inspection, held on 17.03.2011, as indicated above, it was fu rther seen, as reflected from the evidence on record, that four spurious postal ballots, issued in the name of Jaiprakash Tiwari, Karto Ete, Jompi Padu and Peny a Ete were also counted, on the orders of the Returning Officer, in favour of th e returned candidate, though Jaiprakash Tiwari was a person, whose name stood, a dmittedly, deleted from the voters list and whose vote could not have been count ed; Karto Ete is a person, whose name was included twice, i.e., in the electoral roll in part 13 Serial No.430 and, again, in part 14 Serial No.320 and, hence, none of these postal ballots could have been counted and, yet, his postal ballot has been counted; similarly, Jompi Padu, a school student, was issued postal ba llot against an application, made in Form No.12, by Nyojum Ete. Admittedly and a mazingly enough, all these five postal ballots were counted. The particulars of the postal ballots, issued in favour of Jaiprakash Gupta, Jompi Padu, Karto Ete and Penya Ete, are reproduced hereinbelow: Sl No 1 2 3 4 5 Part No/SL.No Name Jai Prakash Tiwari Jompi Padu Karto Ete Karto Ete Penya Ete 000053 Counterfoil No. 000407 000234 000316 000350

62. One can also not ignore the fact that respondent has neither pleaded nor led any evidence to give his version as to what had happened to the 89 postal b allots of 30 Aalo West Assembly Constituency, which were booked, by registered p ost, on 12.10.2009, or that 69 postal ballots, out of the 89 postal ballots, had gone missing from the said post office. In fact, the respondent had taken a sta nd of complete ignorance about the whole incident, but under the pressure of cro ss-examination, the respondent conceded that he knew about the missing postal ba llots. This further fortifies the case of the election petitioner that the respo ndent has been suppressing the truth from the Court and he was well-aware of the fact that postal ballots, booked by registered post, on 12.10.2009, at the said post office, had gone missing and that out of those missing ballots, some were shown, by manipulation, to have been cast in his favour and were, in fact, taken into account in the counting of votes. From what have been discussed and pointed out above, it stands proved be 63. yond all reasonable doubt that the Returning Officer had, in fact, counted 44 vo id votes in favour of the respondent, which has materially affected the result o f the poll. These 44 votes are all void votes and ought not to have been counted in favour of any candidate. If these 44 votes were kept excluded from the poll process, as ought to have been done by the Returning Officer (PW30), then, the p etitioner would have, obviously, received, unless shown otherwise, the majority of valid votes and emerge, as contended by her, the winning candidate. 64. Because of what have been discussed and pointed out above, issue Nos. b, c and d are answered in the affirmative and in favour of the election petitione r.

65. Let me, now, deal with issue Nos. f, g and h. f. Whether the election petitioner has, in fact, received the majority of the va lid votes polled in the election and hence, entitled to a declaration under Sect ion 100(d) of the R.P.Act, 1951? g. Whether the election petitioner is entitled to a declaration under Section 10 1 of the R.P.Act, 1951, that she has been duly elected to 30 Aalo West Assembly Constituency in the election held on 13.10.2009? h. To what other relief(s), the election petitioner is entitled to under the law ? (cid:29) All these three issues being closely interlinked are taken up for discus While discussing the above three issues, it needs to be pointed out that the respondent is a person, who was declared as elected. If, therefore, in a ca se of present nature, once this Court holds, and as I have already held, that th e respondent is guilty of commission of corrupt practice, there is no legal impe diment in setting aside the election of the respondent. The election petitioner has, however, also sought for a declaration, in terms of Section 100(d) of the R OP Act, that she has received majority of valid votes polled in the election and , in terms of Section 101 of the ROP Act, be declared as duly elected. 68. In order to, however, determine if the election petitioner had received majority of valid votes polled in the election, one has to inspect the 40 postal ballots, which were, in the light of the discussions held above, illegally allo wed to be counted by the Returning Officer (PW30) at the time of counting, 17 of these postal ballots having been allowed to be counted by order, dated 22.10.20 09, without assigning any reason therefor and the remaining 23 postal ballots we re, later on, allowed to be counted and, once again, without assigning any reaso n whatsoever. INSPECTION VIS-À-VIS SECRECY OF BALLOTS

66. sion together. 67.

69. Two important factors, which have to be borne in mind, are (i) whether i t is feasible to trace out, by way of inspection, the said 44 postal ballots and , (ii) whether the such an inspection, in the face of the evidence on record and the law relevant thereto, needs to be allowed. This apart, this Court has also held that