Holding

Ballot papers marked with a stamp supplied by polling staff, even if the stamp is the wrong one, are not liable to be rejected and must be counted.

Summary

In the 2000 Bihar Assembly election for Sitamarhi, petitioner Hari Shankar Prasad lost to Shahid Ali Khan by 35 votes. The Returning Officer rejected 90 ballot papers marked with a distinguishing‑mark stamp, deeming them invalid, despite a directive from the Election Commission that such ballots should be counted if the wrong stamp was supplied by polling staff. The petitioner proved, through the testimony of polling officer PW5, that the wrong stamp was indeed supplied for about one and a half hours and then withdrawn. The High Court dismissed the petition, holding that the petitioner had not corroborated the claim, but the Supreme Court found the Returning Officer had failed to make any proper enquiry as required by Rules 39 and 56 of the Conduct of Election Rules, 1961. Relying on the Election Commission’s instruction and the evidence of PW5, the Court held the 90 ballots were valid and, when counted, would give the petitioner a lead of 55 votes. Consequently, the election of the respondent was set aside and the petitioner was declared elected.

Issues considered

The validity of ballot papers marked with a distinguishing‑mark stamp supplied by polling staff.
Whether the Returning Officer complied with the Election Commission’s directive and the Conduct of Election Rules in rejecting those ballots.
The adequacy of the petitioner’s evidence to prove the supply of the wrong stamp.
The applicability of the principle that ballots marked with a wrongly supplied instrument should not be rejected.

Legislation cited

Conduct of Election Rules, 1961s. Rule 39, s. Rule 56
Indian Evidence Act, 1872
Representation of People Act, 1951s. 16(A), s. 83

Subjects

Election lawBallot paper rejectionDistinguishing mark stampConduct of Election RulesRepresentation of People ActElection petitionWrong stampCounting of votesPolling officer evidence

Judgment

t·

- HARi SHANKAR PRASAD
v.
SHAHID ALI KHAN AND ORS.
A

MARCH 13, 2003

[R.C. LAHOTI AND BRIJESH KUMAR, JJ.] B

Election Laws:

Representation of People Act, 1951: Section /6(A)/Conduct of Election C
Rules, 1961: Rules 39 and 56:

Election Petition-Rejection of votes by the Returning Officer due to
marking by wrong stamp-Petition dismissed by High Court-On appeal,
Held: when only certain ballot papers in a booth were marked by wrong
stamp; it goes to show that wrong stamp was supplied by the Polling Officer D
and withdrawn thereafter as asserted by the petitioner-appellant-Returning
officers did not conduct proper inquiry to find out facts regarding supply of
wrong stamp by the polling/presiding officers before rejecting votes. Also
ignored written direction of Election Commission for counting them as valid
votes-Hence such votes are valid votes-Thus petitioner declared elected-
Directions· issued. £

Evidence Act, 1872:

Ev_idence of Polling Officer~Re/iance thereupon-Held, since the
statement of one of the Polling officers as to supply of wrong stamp to voters
is in consonance with the circumstances and plea of the petitioner, such F
statement is reliable.

Words & Phrases:

'felt satisfied'-Meaning and scope of in the context of rejection of G
ballot papers-Election laws.

Respondent No. I was declared elected to the Bihar State Assembly
defeating appellant by a margin of 35 votes. In the counting, Returning
Officer rejected 90 ballot papers as they were marked by a wrong seal.
Appellant filed election petition on the ground of rejection of 90 votes cast H
1113
II 14 SUPREME COURT REPORTS [2003] 2 S.C.R.

A in his favour, ignoring the instructions of Election Commissioner and also
ignoring provisions of law. The petition was dismissed by the High Court.
Hence the present appeal.

Allowing the appeal, the Court

B HELD: I. I. From the relevant provisions viz. Rules 39 and 56 of the
Conduct of Election Rules, 1961, it is clear that the ballot paper is liable
to he rejected in case it bears a mark made otherwise than by th'e
instrument supplied for the purpose i.e to say if the mark has been made
by an instrument supplied by the polling staff, the ballot paper would not
C be liable to be rejected. (1119-Fl

1.2. Election Commission has very clearly instructed the Returning
Officer that if the Presiding Officer or the polling staff had by mistake
supplied the distinguishing mark stamp to voters, the ballot papers so
marked should not be rejected. It was further directed to review the
D matter and scrutinize those 90 ballot papers on merits and count them in
favour of the candidate for whom they are validly marked. Ho'l\'.ever, the
Returning Officer passed the order rejecting 90 ballot papers and declared
the result. The order does not indicate at all if the Returning Officer had
made any enquiry whatsoever from anyone regarding the fact of supply
E of distinguishing mark stamp by mistake of the Presiding Officer or any
of the polling officer. It is not at all indicated as to on what basis the
Returning Officer "felt satisfied" that it was not due to fault of Presiding
Officer ,or any of the polling officer that wrong stamp was supplied. The
Returning Officer has neither indicated nor shown to have made any effort
to find out as to in what circumstances wrong stamp was put on only 90
F ballot papers out of the 440 votes polled. (1121-B-F)

1.3. PWS, one of the Polling Officers who was assigned the duty of
providing stamp for putting the mark on the ballot papers, has very clearly
stated that after about one and half hours of commencement of polling,
the rubber stamp provided by the Presiding Officer was taken back saying
G that it was not the proper stamp and another stamp was given for the
purpose. In cross-examination he denied the suggestion that he was
making a false statement at the instance of the petitioner. The reason
assigned by the High Court for not accepting the statement of PWS is that
no other person was examined to support his statement, does not seem to
H be a cogent reason. Non-mention of the fact of providing a wrong stamp
H.S. PRASAD v. S.A. KHAN 1115
in the diary of the Polling Officer too, cannot be taken to be a valid reason A
for not accepting the statement of PW5. 11121-F, G; 1122-A, BJ

1.4. The Polling Officer may or may not have attached any special
importance to the fact that initially for some time wrong stamp was used
or may have avoided to mention this fact in the diary. The diary and the
filling up of the same, was under his own control. In case wrong stamp B
was provided by him to one of the Polling Officers who passed it on to
the voters, non-mention of this fact by him in the diary would not lead to
any inference that no such mistake was committed. Non-mention of such
a fact would obviously suit the polling officer. There is a positive statement
of the person himself who had provided the stamp to the voters. It was C
not necessary at all for the petitioner to have examined other polling
officers once the statement came from the horse's mouth. The statement
of PW5 is in consonance with circumstances and the plea of the petitioner.
[1122-B-D[

1.5. The Returning Officer himself has come to the conclusion that D

- only 90 ballot papers were marked by a wrong stamp and since all other
ballot papers were not wrongly stamped would not lead to the inference
that it was not due to mistake of the polling staff, which inference has been
wrongly dr~wn by the Returning Officer. It rather goes to show that as
soon as the mistake was detected the wrong stamp was withdrawn as a
result of which after the withdrawal of the wrong stamp rest of the ballot E
papers were stamped by a correct stamp. The circumstances indicated
by PW5 in his evidence provides a plausible reason, as to how only 90
ballot papers were stamped by distinguishing mark and not the rest of
them. 11122-E-G]
F
1.6. It is incorrect on the part of the High Court to say that in the
petition, no such case was pleaded. The case of supply of wrong stamp
was very much pleaded right from the initial stage. 11122-G [

I. 7. It is not understandable what enquiry the Returning Officer
actually made in regard to supply of wrong stamp to the voters, on the G
basis of which he "felt satisfied" that no wrong stamp was supplied by
the polling staff. It is just a bald observation in his order without any
enquiry worth the name. The order rejecting the 90 ballot papers is
against the instructions and orders of the Election Commission of India.
Only the Presiding Officer and the polling staff would have been the
proper persons from whom the Returning Officer was supposed to have H
1116 SUPREME COURT REPORTS [2003] 2 S. C.R.

A made enquiries but he failed to do so. The High Court clearly erred in
placing much reliance upon the order of the Returning Officer. Such a
report/order which is based on no enquiry, much less from the concerned
persons, who could throw light on the fact, is an order or report based on
no material. Thus, it is vitiated and liable to be ignored. [1123-E-HI

B 1.8. The petitioner has proved the fact that the wrong stamp was
supplied by the polling staff, by examining PW5, the polling officer. The
wrong stamp was made available to the voters by the polling officer. That
being the position, such of the ballot papers marked by the stamp supplied
having been wrongly rejected by the Returning Officer, they are to be
C counted in favour of the petitioner-appellant as per the directions of the
Election Commission. The margin of votes between the two contenders is
only 35 votes; counting 90 votes in favour of the appellant would provide
a lead of 55 votes to the petitioner-appellant who would be entitled to be
declared elected. 11124-C; 1124-E, Fl

D T.H. Musthajfa v. MP. Varghese and Ors., [1999] 8 SCC 692, relied
on.

Siu·{ Manni Lal v. Shri Parmai Lal and Ors., [19701 2 SCC 462 -
distinguished.

£ CIVIL APPELLATE JURJSDICTION: Civil Appeal No. 4621 of2002.

Fr.om the Judgment and Order dated 16.7.2002 of the Patna High Court
in E.P. No. I of 2000.

Rakesh Dwivedi, Gaurav Agrawal, Saurav Agarwal and Prashant Kumar
F for the Appellant.

The Judgment of the Court was delivered by

BRIJESH KUMAR, J. This is an appeal under Section 16(A) of the
Representation of People Act, 1951 (for short 'the Act') against the judgment
G of the Patna High Court dismissing the election petition filed by the appellant
and upholding the election of respondent no. I to the State Assembly.

The appellant Hari Shankar Prasad contested the election held in
February, 2000 as a candidate for Sitamarhi Assembly Constituency No.67
in the State of Bihar. He was a B.J.P. candidate whereas the respondent no. I
H Shahid Ali Khan, who has been declared elected has been a candidate of
H.S. PRASAD v. S.A. KHAN [BRUE SH KUMAR, J.) 11 I7
Rashtriya Janta Dal. A number of other candidates were also in the fray. The A
polling was held on 22.2.2000, the counting was done on 25.2.2000 and the
· result was declared on 27.2.2000. Respondent No. I Shahid Ali Khan was
declared elected defeating his nearest rival, namely, the appellant Hari Shankar
Prasad by a margin of 35 votes.

The appellant filed an election petition inter alia on two grounds which B
seem to have been pressed before the High Court one in respect of rejection
of 90 votes casted in his favour and the other about loss of a bundle of
another 50 ballot papers in his favour. The High Court has not accepted
either of the grounds which have now been raised in this appeal but the
learned counsel for the appellant has confined his submissions in regard to C
rejection of 90 ballot papers which were casted in his favour. In the fourth
round of the counting of the votes of Booth No.49 at Table No.7, it was
found that 90 ballot papers in favour of the appellant were marked by the
stamp of "distinguishing mark" used by the polling officer while issuing the
ballot paper and not by the stamp meant for voting. These ballot papers were
separated and not counted for the appellant. The polling agent of the appellant D
raised objection and lodged a protest in writing to the Returning Officer but
of no avail. A fax message was flashed to the Election Commission, on
behalf of the appellant. A reference also seems to have been made to the
Election Commission of India by the Returning Officer of No.67 Sitamarhi
Assembly Constituency. The Election Commission in response thereof issued E
the directions on 26.2.2000, a copy of whi'ch has been placed on the record
as Annexure P-7. It reads as follows :

" .. If the Presiding Officer or the polling staff has, by mistake, supplied
the distinguishing mark stamp to voters for marking ballot papers, the
ballot papers so marked should not be rejected ....... " F
The Returning Officer, after considering the matter, rejected 90 ballot
paperts which were in favour of the appellant and declared the respondent
no. I Shahid Ali Khan as elected by a margin of 35 votes. The order declaring
the result and containing the reasoning rejecting the objections of the appellant
is Annexure P-8, relevant portion of which is extracted as below : G
" .... :... Vide letter no.459/BR-LA/2000 (67) an order was received from
the Commission that those 90 ballot papers which had distinguishing
mark stamps may be counted by considering them to be correct. It is
relevant to mention that those ballot papers were counted during
counting. As they have been counted once, there is no need to recount H
1118 SUPREME COURT REPORTS (2003] 2 S.C.R.

A them and they are in favour of one party. Information with respect to
same was given to all election agents/candidates, who signed the
result sheet of that round in this constituency in other booths and in
68, Bathnaha Assembly Constituency, decision had been taken to
reject such ballot papers at the time of counting. I am fully satisfied
that it was not due to fault of the presiding officer or polling officer
B that by mistake distinguishing mark stamp had been given to voters,
as other ballot papers of the same booth had mark made by arrow
cross instrument."

According to the appellant the wrong rubber seal meant for putting
C "distinguishing mark" was provided by the polling staff to the voters and the
same continued to be used while casting their votes during the first one and
a half hours. Later on on detection of the fault in providing the wrong seal
it was changed and thereafter the ballot papers were marked by the voters by
the rubber stamp of cross mark meant for the use by a voter to cast his vote
for any particular candidate. The case of the appellant is that since the mistake
D is that of the polling staff such votes bearing the marking of distinguishing
mark could n0t be rejected and have to be counted in favour of the appellant.
Respondent no.1 refuted the allegations made by the appellant challenging.
his election and a Recriminatory Petition was also filed setting up a case of
booth capturing by the appellant along with his son and other anti-social
E elements and during that period it is alleged that the appellant committed
corrupt practice as defined under Section 83 of the Act. The 90 votes, therefore,
were rightly rejected by the Returning Officer.

Both parties have led evidence, documentary as well as oral, in support
of their respective case. As indicated earlier, the High Court did not accept
F the case of the appellant and dismissed the petition. It may, however, have
to be examined whether there was any mistake or not on the part of the
polling staff in providing a wrong rubber stamp by reason of which the mark
other than prescribed for marking the ballot paper by a voter has been used
making the ballot paper liable to be rejected. It may also have to be seen
whether there has been any booth capturing as alleged by respondent no. I to ---
G explain the marking of 90 ballot papers by rubber stamp meant for putting
distinguishing mark by the polling staff.

In connection with the above controversy, relevant provisions of The
Conduct of Election Rules, 1961 (for short 'the Rules') may be perused. Rule
39 deals with Maintenance of secrecy of voting by electors within polling
H
1-1.S. PRASAD v. S.A. KHAN [BR!.IESH KUMAR,.!.] 1119

station and voting procedure. Rule 39(2)fl:i) provides as under : A
' "39(1) xxx xxx xxx

.. (2) The elector on receiving the ballot paper shall forthwith

(a) xxx xxx xxx
B
(b) there make a mark on the ballot paper with the instrument
supplied for the purpose on or near the symbol of the candidate
for whom he intends to vote;
(emphasis applied)
(c) xxx xxx xxx" c
Rule 56 deals with Counting of Votes. Rules 56(2)(b) reads as under:

"56(1) xxxx xxx xxx

(2) The returning officer shall reject a balloi paper
D
... (a) xxx xxx xxx
I

(b) if it bears no mark at all or, to indicate the vote, it bears a mark
elsewhere than on or near the symbol of one of the candidates
on the face of the ballot paper or, it bears a mark made otherwise
than with the instrument supplied for the purpose, or E
(emphasis applied)
(c) xxx xxx xxx"

From the perusal of the above provisions, it is clear that the ballot paper is
liable to be rejected in case it bears a mark made otherwise than by the F
instrument supplied for the purpose i.e. to say if the mark has been made by
an instrument supplied by the polling staff, the ballot paper would not be
liable to be rejected. As indicated earlier, both parties have adduced oral and
documentary evidence in support of their case. The High Court has rejected
the case of the appellant on the ground that besides the polling officer PW G
5 Awadhesh Kumar no other witness was produced in support of the case
that wrong seal was supplied to the voters. It has also been found that the
diary of the presiding officer does not mention about the supply of the wrong
seal. Therefore, the case of the petitioner was not accepted. It is also observed
that it was for the first time in the Court that PW 5 Awadhesh Kumar had
made a statement that wrong seal was given by him by mistake to the voters H
1120 SUPREME COURT REPORTS [2003] 2 S.C.R.

A which was later on taken back and correct seal was supplied. The High Court
· has also observed that in the election petition and other protest applications
it was not indicated that wrong seal was provided by PW 5 Awadhesh Kumar.
The High Court has also heavily relied upon the fact that after getting
instructions from the Election Commission of India the returning officer had .,
B considered the matter and had rejected the objection raised by the petitioner.
So far the case of the respondent no. I regarding booth capturing is
concerned the Court has held that such allegations have not been proved nor
any such allegation was made ever before at any point of time. Therefore, the
case of booth capturing as set up by respond·ent no. I was also rejected.
c In the above background we may examine the reasons assigned by the
High Court in not accepting the case of the petitioner and further as to how
far such reasons are sustainable on the material available on record.

Learned counsel for the appellant has firstly drawn our attention to the
D averments made in the election petition, more particularly, to paragraph 12
of the petition wherein it is averred that in round no.4 at table no.7, booth
no.49, 93 ballot papers found polled and marked in favour of the petitioner,
were deliberately put in the column of the doubtful votes and were wrongly
rejected by the returning officer in violation of Rule 56 of the Conduct of
Rules, 1961. In para 13 it is averred that election agent of the petitioner had
E lodged a protest then and there on 25.2.2000 itself during the course of the
counting. It is further averred that counting was stopped for sometime telling
the agent that the matter was being referred to the election commission for
seeking its instructions. In para 17 it has been averred that despite the
instructions of the Election Commission of India the returning officer had
F wrongly rejected 90 ballot papers marked in his favour. It is also averred that
the polling staff by mistake had supplied the seal of the "distinguishing
mark" to the voters. We also find that the fax message sent by the returning
officer to the Election Commission of India, a copy of which has been placed
on record as Annexure P-6, mentions in column 5 under the heading "any
other unusual feature" as follows :
G
"90 polled ballot papers were found which were not polled with the
prescribed stamp but were stamped with distinguishing mark which
was considered as doubtful while counting and were rejected after
hearing vote is only 35, therefore the matter is being referred to
Election Commission for permitting the Returning Officer to declare
H the resu It."
H.S. PRASAD v. S.A. KHAN [BRIJESH KUMAR, J.] 1121
·~
,.,..._... The reply of the election commission dated 26.2.2000 has already A
been quoted in the earlier part of this jud .1ent. These facts leave no room
to doubt that right from the very beginning a protest has been made on behalf
of the appellant regarding non-counting of 90 votes in his favour.
...
The Election Commission has very clearly instructed to the Returning
Officer that if the Presiding Officer or the polling staff had by mistake supplied B
the distinguishing mark stamp to voters, the ballot papers so marked should
not be rejected. It was further directed "you should therefore review the
matter and scrutinize those 90 ballot papers on merits and count them in
favour of the candidate for whom they are validly marked". The Returning
Officer passed the order on 27 .2.2000 rejecting 90 ballot papers and declared C
the result. The Returning Officer in his order dated 27 .2.2000 while rejecting
the ballot papers observes "I am fully satisfied that it was not due to fault of
the Presiding Officer or polling officer that by mistake distinguishing mark
stamp had been given to voters, as other ballot papers of the same booth had
mark made by arrow and cross instrument". The order does not indicate at
all if the Returning Officer had made any enquiry whatsoever from anyone D
"I
regarding the fact of supply of distinguishing mark stamp by mistake of the
Presiding Officer or any of the polling officer. It is nobody's case that all the
votes of the polling booth were stamped by wrong stamp. The petitioner's
case is that it was only for one and half hours in the beginning that the ballot
papers were mark~d by wrong stamp where after correct stamp was supplied. E
It is not at all indicated as to on what basis the Returning Officer "felt
satisfied" that it was not due to fault of Presiding Officer or any of the
polling officer that wrong stamp was supplied. The case of booth capturing
has been discarded by the High Court. There has been no such allegation or
objection earlier by respondent no. I. The Returning Officer has not indicated
nor shown to have made any effort to find out as to in what circumstances .p
wrong stamp was put on only 90 ballot papers out of the 440 votes polled
at booth no.49. The petitioner, to substantiate his case examined PW 5
Awadhesh Kumar one of the Polling Officers who was assigned the duty of
providing stamp for putting the mark on the ballot papers. He has very
clearly stated that he was entrusted with the duty of marking over rubber G
stamp to the voters and to see that the ballot papers are properly folded and
put into the box. He further stated that after about one and half hours the
rubber stamp which was provided by the Presiding Officer was taken back
saying that it was not the proper stamp and another stamp was given for the
purpose. In cross-examination he denied the suggestion that he was making
a false statement at the instance of the petitioner. He further told that he is H
1122 SUPREME COURT REPORTS [2003] 2 S.C.R.

A employee of a Bank and did not remember the name of the Presiding Officer
,.
-....·
\
but only remembered that he was an employee of Silk Industry department.
The reason assigned by the High Court for not accepting the statement of PW
5 is that no other person was examined to support his statement, does not
seem to be a cogent reason. Non-mention of the fact of·providing a wrong ,,
B stamp in the diary of the Polling Officer too, cannot be taken to be a valid
reason for not accepting the statement of PW 5. The Polling Officer may or
may not have attached any special importance to the fact that initially for
some time wrong stamp was used or may have avoided to mention this fact
in the diary. The diary and the filling up of the same, was under his own
, control. In case wrong stamp was provided by him to the Polling Officer no.3
C who passed it on to the voters, non-mention of this fact by him in the diary
would not lead to any inference that no such mistake was committed. Non-
mention of such a fact would obviously suit the polling officer. There is a
positive statement of the person himself who had provided the stamp to the
voters. It was not necessary at all for the petitioner to have examined other
polling officers once the statement came from the horse's mouth. The statement
D of PW 5 is in consonance with circumstances and the plea of the petitioner.
The respondent no. I could produce the Presiding Officer as his witness to
indicate that he had given the correct stamp alone to the Polling Officer no.3,
Awadhesh Kumar to be supplied to the voters.

E The Returning Officer himself has come to the conclusion that only 90
ballot papers were marked by a wrong stamp and since all other ballot papers
were not wrongly stamped would not lead to inference that it was not due to
mistake of the polling staff, which inference has been wrongly drawn by the
Returning Officer. It rather goes to show that as soon as the mistake was
detected the wrong stamp was withdrawn as a result of which after the
F withdrawal of the wrong stamp rest of the ballot papers were stamped by a
correct stamp. At the risk of repetition we may again mention that the theory
of booth capturing which could perhaps explain this kind of wrong seal on
the ballot papers, has been discarded by the High Court. The circumstances
indicated by PW 5 in his evideace provid~s a plausible reason, as to how
G only 90 ballot papers were stamped by distinguishing mark and not the rest
of them. It is also incorrect on the part of the High Court to say that in the
petition, no such case was pleaded. We have refetTed to the averments made
in para 17 of the election petition that by mistake polling staff had supplied
a wrong stamp. The case of supply of wrong stamp was very much pleaded
right from the initial stage.
H
H.S. PRASAD v. S.A. KHAN [BRIJESH KUMAR, J.] 1123
The Returning Officer has been examined as OW 5. In his cross- A
examination he has stated that he had reinvestigated the matter regarding
wrongly stamped 90 votes in the presence of the Central Observer and he
was quite satisfied that no mistake was committed either by the Presiding
Officer or by the polling officer. In reply to the another question he stated
as follows :
B
" .......... If the Central Observer had written anything to the Election
Commission of India in the following m3;nner :

"Speaking order passed by Returning Officer on the decision/order of
EC! which I could get from him after lot of persuasions. The complaint
given to me by BJP candidate after declaration of result is also enclosed C
as Annexure-C. From the perusal of my report, it is quite clear that
the R.O. has not complied with the orders of EC! and the instructions
of the Observer. His action smacks of favouritism in favour of winning
candidate, perhaps under political pressure."

then the same is totally false and biased" D

In the later part of his statement he further states as follows :

"Regarding the distinguishing marks and the seals in those ballots
had not been enquired and verified specifically from the polling staff."
E
It is not understandable what enquiry then the Returning Officer actually
made in regard to supply of the wrong stamp to the voters, on the basis of
which he "felt satisfied" that no wrong stamp was supplied by the polling
staff It is just a bald observation in his order without any enquiry worth the
nanie. The order rejecting the 90 ballot papers is against the instructions and
orders of the Election Commission of India dated 26.2.2000 which required F
the Returning Officer to enquire into the fact if the Presiding Officer or the
polling staff had by mistake supplied the distinguishing mark stamp to voters
marking the ballot paper and, in case that was so, the ballot papers. should not
be rejected. Only the Presiding Officer and the polling staff would have been
the proper persons from whom the Returning Officer was supposed to have G
made enquiries but admittedly he failed to do so. The High Court clearly
erred in placing much reliance upon the order of the Returning Officer, on
reconsideration of the complaint of the petitioner about rejection of 90 votes.
Such a report/order which is admittedly based on no enquiry, much less from
the concerned persons, who could throw light on the fact, is an order or
report based on no material,it is vitiated and liable to be ignored. In this H
1124 SUPREME COURT REPORTS [2003] 2 S.C.R.

A background we find that there was no reason, not to accept the statement of
PW-5 one of the polling officers who as per his duty as assigned, had supplied
the stamp to the voters and has further stated that the stamp was withdrawn
about one and a half hours after the voting started, where after correct stamp
was supplied by the Presiding Officer. His statement is fully supported by the
circumstances.
B
On behalf of respondent no. I, a reference has been made to a decision
reported in (1970) 2 SCC p.462, Shri Manni Lal v. Shri Parmai Lal and Ors.,
holding th.at it is the duty of the petitioner to prove the fact that the ballot
papers were marked by the stamp issued by the polling staff. In absence
C thereof, the ballot papers were held to be rightly rejected. There is no dispute
about the proposition of law and in this case, in our view, the petitioner has
proved the fact that stamp was supplied by the polling staff by examining
PW 5, one of the polling officers whose duty it was to provide the rubber
stamp to the voters. On behalf of the appellant reliance has been placed upon
the decision of this Court reported in [1999] 8 SCC p.692, T.H. Musthajfa v.
D MP. Varghese and Ors., where it has been held that where supply of wrong
instrument is due to mistake of the polling officer to the voters and the ballot
papers having been marked by such stamp as supplied wrongly, they are not
liable to be rejected.

On consideration of all the material available on the record, we find
E that the wrong stamp was made available to the voters by the polling officer.
That being the position, such of the ballot papers marked by the stamp
supplied have bee.n wrongly rejected by the Returning Officer and they are
to be counted in favour of the petitioner-appellant also as per the directions
of the Election Commission. The margin of vote between two contenders is
p only 35 votes, counting 90 votes in favour of the appellant would provide a
lead of 55 votes to the petitioner-appellant who would be.entitled for being
declared elected.

For the discussion held above, the election petition i~ allowed with
costs. The declaration of respondent no. 1 as elected is set aside and the
G petitioner appellant is declared elected from Sitamarhi Assembly Constituency
No.67, State of Bihar.

S.K.S. Appeal allowed. f