JUDGMENT O.P. Garg, J.
1. The petitioner Vijay Bahadur Yadav, roll number 82151, was appearing in Political Science 1st paper of B.A. Part II, 1995 examination of Allahabad University on Saturday, the 22nd July, 1995 at C.M.P. Degree College, Centre. Allahabad. Abruptly, the Flying Squad appeared in the examination hall and snatched the answer book of the petitioner and supplied him 'B' answer book on the ground that the petitioner was found to be in possession of incriminating material in the form of 'D. Kumar's Sure Series, 1995, B.A. IIIrd Year Political Science 1st Paper'. The petitioner immediately denied to have been in possession of the aforesaid series and the explanation given by him is that when the Flying Squad entered the examination hall, the other candidates/examinees started throwing incriminating materials including hand written chits, guide books, series and key answer books, etc., and one of such books, which was thrown from behind landed on the back side of his seat and on the ground of suspicion, the petitioner was branded as adopting unfair means. A show-cause notice dated 26.7.1995, Annexure-3 to the writ petitioner was served on the petitioner. Obviously, the petitioner denied the allegations of unfair means against him and emphatically asserted that he was not using unfair means. The report of the examiner concerned dated 11.11.95 indicates that the petitioner has copied answer No. 5 from page No. 14 of the printed book let (D. Kumar's Series) which was seized from his possession. The Committee took the decision to cancel the result of the petitioner of B.A. II examination of 1995 and also debarred him from appearing in any examination of the University of the year 1996. The order of punishment dated 13.6.96 is contained in Annexure-A5 to the writ petition.
2. By means of this writ petition under Article 226 of the Constitution, it is prayed that the impugned order dated 13.6.1996, Annexure-A5, be quashed and the result of the petitioner of B.A. Part II examination 1995 be directed to be declared. By an interim order of this Court, the petitioner was permitted to appear in B.A. Part III examination of the University subject to the decision of the present writ petition. Now the petitioner wants to seek admission in M.A.
3. A counter-affidavit has been filed on behalf of the respondent-University reiterating the fact that the petitioner was caught red-handed using unfair means in the examination hall and that the printed booklet which comes within the purview of incriminating material was found from his possession. The relevant answer book of the petitioner as well as booklet seized from his possession has also been brought before this Court besides the record of enquiry.
4. Heard learned counsel for the parties at considerable length and perused the record of enquiry and the relevant answer book and the offending booklet alleged to have been seized from the possession of the petitioner. The gravamen of the charge against the petitioner is that he was found to be in possession of D. Kumar's Sure Series. 1995, a printed booklet (Incriminating article) and seized by Flying Squad and, therefore, the petitioner has been guilty of adopting unfair means within the meaning of University Ordinance, viz., "Ordinance on the use of unfair means and Causing Disturbances in Examination' (hereinafter referred to as 'the Ordinance'). It is also asserted that the report of the examiner is that the petitioner has copied from page No. 14 of the said booklet to write answer to question No. 5 in his answer book.
5. At the outset, it may be mentioned that I have perused the original answer book 'A' of the petitioner on the cover of which, an endorsement has been made to the effect "caught by Flying Squad--UFM--'D. Kumar's Series". Answer to question No. 5 pertaining to Mecaivallia is to be found from the first page of the answer book. The answer runs in the first six pages. On the top of the first page, it has been mentioned by red ink, obviously by the examiner concerned, "this answer has been copied from page 14 of the booklet attached". The attached booklet D. Kumar's Series with the answer book is also available. On page 14 of the said booklet, the merits and demerits of 'Mahabharat Kalin Ki Gano Ki Prakiti Ya Visheshtayen' have been printed. There is not even a faint suggestion on page 14 about the question No. 5, pertaining to Mecaivallia. In my quest to reach the truth, I have carefully scrutinised the answer to question No. 5 written by petitioner running into six pages and find that not even a word has been copied from page 14 of the booklet which was allegedly seized from the possession of the petitioner. In order to prevent any future manipulation in or replacement of the answer to question No. 5, as well as page 14 of the seized printed booklet. I have put my signatures on each one of the six pages of the answer book in red ink as well as on page 14 of 'D. Kumar's Series and have encircled any signatures. The report of the examiner dated 11.11.1995 on the basis of which the Committee had taken the decision to cancel the result of the petitioner and to debar him from appearing in any examination of the University in 1996 turns out to be totally wrong and opposed to the facts as are evident from the perusal of the answer book and the booklet allegedly seized from the possession of (he petitioner. It is not understandable under what circumstances, the examiner concerned has given a wrong report in an irresponsible manner without realising the consequences that the future prospects and career of a budding youth may be sealed or marred. The decision of the Committee constituted for the purpose has obviously gone wrong as the report of the examiner was totally incorrect and against the facts.
6. A faint suggestion was made that even seizure of incriminating article is sufficient to conclude that the student has adopted unfair means as under the Ordinance, possession of unauthorised material falls within the ambit of the definition 'unfair means' and that it would be of no consequence whether the examinee could use the unauthorised material or not. This submission appears to be founded on the decision of the Apex Court in Central Board of Secondary Education v. Vineeta Mahajan (Ms.) and another. (1994) I SCC 6, in which it was observed that the very fact that the candidate took 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/him in the examination under the rule and that, the rule does not make any distinction between bona fide or mala fide possession of the incriminating material. It is true that once the candidate is found to be in possession of papers relevant to the examination, the requirement of the rule is satisfied and there is no escape from the conclusion that the candidate has used unfair means at the examination- But in the background of the peculiar facts of the present case. I feel that the explanation offered by the petitioner right at the time when he was caught and was stripped off the answer book in the examination hall, appears to be within the realm of reality. When a Flying Squad abruptly enters an examination hall, there arises a commotion amongst the examinees. Some of them start running helter-skelter and those candidates who have in their possession incriminating material in the form of guide books, series hand written chits, etc., throw them lest they are recovered /seized from their possession. It is not necessary that all the examinees in the examination hall are in possession of unauthorised material : some of the brilliant laborious and hard working examinees must be present in the same examination hall and if on the arrival of the Flying Squad some unauthorised material drops by the side of a bona fide student, he cannot be equated with those students/candidates who were actually in possession of unauthorised material but have been smart and clever enough in throwing away the same. The natural result of it would be that a candidate who never intended to use unfair means is caught while those persons who have entered the examination hall with an avowed object of indulging in unfair means go scot-free.
7. In the instant case, there is nothing on record to indicate that D. Kumar's Series printed booklet was seized from the personal possession of the petitioner. The locus in que of the booklet has nowhere been mentioned. The petitioner was not holding the series with himself nor he had kept it concealed in his answer book nor under his cloths. It is not a case of recovery of unauthorised material from the personal search of the petitioner, in these circumstances, there obviously was no reason why plausible and quite natural explanation of the petitioner as mentioned above, should not have been accepted. This conclusion is further fortified by the fact that the report of the examiner, as has been demonstrated above, has turned out to be completely false. The fact that not even a word of page 14 of D. Kumar's Series has been copied by the petitioner in answer to question No. 5 which partains to a totally different topic lends strength to the finding that the offending booklet in question, was not seized from the possession of the petitioner but, if at all was picked up by the side of his seat.
8. I am conscious of the fact that the above aspect of the mailer which obviously related to scrutiny of facts, could not be sifted or gone into in the writ jurisdiction. But, where the unsavoury controversy is falsified by startling facts which tell an altogether different tale, on the face of it, Court would not hesitate to step in and to rectify the decision which, in the circumstances, was not only absurd but perverse. The future prospects of brilliant students cannot be permitted to be sacrificed or marred by taking recourse to technical subterfuges. The Courts are respected because they do justice and not because they have the authority to throw out the justified claims on technical grounds. This Court has the plenary powers to do complete justice and in the process, if necessary, it may, sometimes be required to go into the details of the facts. In my view, it is one such case where the facts were required to be scrutinised.
9. In the result, it is found that the impugned order of punishment dated 13.6.1996 (Annexure-A5 to the writ petition) is wholly illegal and inconsequential. Allowing the writ petition, it is directed that the respondents shall declare the result of the petitioner of B.A. Part 11 Examination of the year 1995 and that of B.A. Part III in which he had appeared under the interim orders of this Court. Appropriate orders shall be passed within one month from the date of production of a certified copy of this judgment and order before the respondent-Registrar of the University of Allahabad. The impugned order dated 13.6.1996 (Annexure-A5 to the writ petition) is hereby quashed. The petitioner is entitled to receive clean mark-sheets of all the examinations in which he appeared after the aforesaid incident.
10. The original answer books and the record of enquiry report, which were produced before the Court, have been returned to the learned counsel for the University.