ORDER S. S. Sodhi, J.
1. The matter here arises from the cancellation of the result of the, appellant on the ground that he had been found guilty of using unfair means in the examination.
2. The charge against the appellant was that he was found in possession, during the examination, of material relevant to the subject of the examination.
3. It was sought to be contended on behalf of the appellant that in terms of Section 13 of the U.P. Pradeshik Shiksha Adhiniyam 1962, the result of the examination could have been withheld only if the appellant had been found guilty of using unfair means in the examination. The arguments being that mere possession of incriminating material cannot be construed as using unfair means in the examination.
4. While dealing with the contention raised, it would be relevant to advert to Regulation 53 of the Regulations framed under Section 23 of the Act, the explanation whereof reads as under, "Using of unfair means includes possession of an unauthorised paper of any kind or note book or any other material either in pocket of person inside or outside the desk or seat."
5. A plain reading of the explanation shows that mere possession of incriminating material is enough to constitute unfair means for the purposes of Section 13 of the Act.
6. Confronted with this situation. Counsel for the Appellant sought to contend that the explanation to regulation 53 was contrary to the Law, as much as, the power conferred by Section 23 to frame regulations was limited to such regulations being "consistent with the provisions of this Act". It was thus argued that when in the main Section what is "unfair means" is the use of the incriminating material, the regulation could not render mere possession of incriminating material to be "unfair means." This is indeed a contention that cannot stand scrutiny. The answer to this is provided by the rationale of the judgment of the Supreme Court in Central Board of Secondary Education v. Ms. Vineeta Maha-jan, AIR 1994 SC 733, where an inference was drawn from the possession of the papers relevant to the examination the candidate was using unfair means. It being said "The very fact that she took the papers relevant to the examination in the paper concerned and was found to be in possession of the same by the invigilator in the examination hall is sufficient to prove the charge of using unfair means by her under the rule.
7. Counsel for the Appellant had sought to press in aid the judgment of the single Judge in Ram Janam Ram v. Kul-Sachiv-Pariksha, Allahabad University, Allahabad, 1993 (2) UPLBEC 624, where it was held that the mere fact that the alleged paper was found in the desk of the petitioner was not sufficient proof that the petitioner was found copying from the paper, particularly when the paper found was neither in her hand-writing nor had she copied from the paper. This judgment, with respect, does not, in our opinion, lay down correct law, to the extent to which, it tends to suggest, actual use of unfair means to be an essential ingredient to establish the charge of using means in an examination. Mere possession of incrimination material in the examination hall can by itself amount to using of unfair means in the examination.
8. We do not, therefore, see any grounds to grant to the appellant the relief sought. This special appeal is accordingly hereby dismissed.
9. Appeal dismissed