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(3) A request was also made to the Tribunal for a recount of the votes which was allowed and after inspection of the ballot boxes and recount, it was discovered that several hundred ballot papers were missing from the ballot boxes. That they were so found missing when inspected in the Tribunal is common ground and has not been disputed by the parties before us. The controversy in this Court on this point has, however been confined within a narrow compass. The appellant has emphatically stressed that the fact of missing ballot papers on the existing material on the record must be held to be imputable or traceable to the misconduct of the officers deputed to count the votes polled at the election; support for this submission has been sought from the conclusion of the learned Tribunal that no pilfering of ballot papers was shown to have occurred during the inspection of the ballot boxes in pursuance of its order and also from the contention that the ballot boxes after they were sealed by the election officers are shown to have been kept in property and safer official custody where there was no reasonably chance of being tampered with. Emphasis has been laid on behalf of the appellant that he had during the counting process ventilated his grievance in regard to the impartial and honest counting of the ballot papers and had indeed also claimed a recount which was erroneously disallowed by the Returning Officer.

(4) The respondent have on the other had argued with equally vehemence that the Tribunal has not come to any positive finding of there being on pilfering during the inspection ordered by it and that in any case such a finding is also reviewable by this Court. The counsel has body asserted that it was the appellant who, in all probability, removed the missing ballot papers from the ballot boxes with the object of wining the election petition. In this connection he has leveled criticism against the appellant's conduct during the inspection of the ballot boxes in the it below, the main point being that he did not care to bring to the notice of the Tribunal or its officials immediately on discovering that some ballot papers were missing. To the appellant's argument that it was preposterous to expect a person in his position to stoop so low as to remove ballot papers in the alleged, it has been contended that the probabilities support the respondents' suggestion, particularly when no content and reasonable grounds have been made out for the claim to a recount urged by the appellant before the Returning Officer. The respondent have in addition challenged the order of the learned Tribunal granting his inspection of the ballot boxes on the ground that the same have been ordered without cogent and sufficient reasons. This is followed by challenge to the order permitting amendment of the petition.

(9) The appellant's learned counsel in his opening address attempted to establish serious errors in counting as recorded in forms No. 16 on the record but after hearing the respondent, the appellant's learned counsel did not seriously press this point. His only contention which has been strongly urged is that if, as found by the learned Tribunal, there was no pilfering done during the inspection of the ballot boxes and the ballot boxes were properly sealed after counting, then the only reasonably alternative left before this Court to hold is that the missing votes were wrongly credited to the respondent at the time of counting. As against this, the respondents' learned counsel has with equal vehemence urged that it was the appellant Shri Prithvi Singh Azad, who, in view of the fact that the ballot boxes has been properly sealed at the time of counting, must be held to have pilfered the missing ballot papers when he was inspecting them. It has been contended that there were moments when the Ahlmad as well as the respondent and his agents were absent and the appellant had adequate opportunity of doing the mischief.

The material on the record to which our attention has been invited is also insufficient to hold that the officers concerned had included in the respondent's count bogus ballot papers which are now found missing in the ballot boxes. The result, therefore, is that on this point it is not possibly for this Court to judicially sustain either of the two rival contentions. Some reference was made by the respondent's counsel to the order of the Tribunal dated 11-10-1962 disallowing the respondent's objection to the opening of the postal ballots and to the order dated 24-4-1963 upholding the appellant's objection on similar grounds but on the view taken by us, it is unnecessary to pursue this matter.