MUSHTAQ AHMAD PEER Vs. STATE OF J&K

JUDGEMENT

(1.) The applicant/appellant Mushtaq Ahmad Peer, the then Chairman, Board of Professional Entrance Examination (hereinafter referred to as the "BOPEE"), has filed this application, being MP No. 01/2018, seeking suspension of the sentence awarded to him, alongside the appeal against the judgment dated 25th of April, 2018, of the Court of learned Special Judge, Anti-Corruption, Kashmir, Srinagar, whereby he has been convicted and sentenced to undergo rigorous imprisonment for a period of five years, the maximum term provided for an offence under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act (as reduced from seven years to five years vide Act No.8 of 2014 dated 22nd of March, 2014) and a fine of Rupees one Crore. He has also been sentenced to undergo rigorous imprisonment of three years for an offence under Section 409 RPC and seven years for the commission of an offence under Section 420 RPC and for a further period of one year under Section 120-B RPC.

(2.) The background facts of the case, in a nutshell, are that during the course of the second session of the first day of the Jammu & Kashmir Common Entrance Test (for short the "JKCET"), 2013, conducted by the BOPEE, for attracting and selecting the best brains for undergoing various professional courses in the State in the hope of a vibrant future, instead of the papers of Chemistry, the question papers of Biology of a particular series were distributed in as many as five examination centers which led to the cancellation of the Chemistry paper and the postponement of the Biology paper to be conducted on the next date. This news spread like a wild fire and it lead to a widespread resentment amongst the aspirants. It was flashed both in the print as well as in the electronic media, as a consequence of which, the High Court took suo moto cognizance of the matter. It sought response from the Government as well as the other functionaries, including the Chairman, BOPEE. The Court took a serious view of the matter. It issued a slew of directions including the one to the Chief Secretary of the State of Jammu and Kashmir for initiating an inquiry into the causes and reasons behind the incident leading to the cancellation/ postponement of the papers of the J & K CET, 2013, as also to hold the examination as per the new schedule in the most fair and transparent manner. A report was sought from the Vigilance Organization also as to whether, or not, any action has been taken thereon since the Amicus Curiae in the case, Mr B. A. Bashir, the learned Senior Advocate, had apprised the Court that there were reports of sale of the question papers of the JKCET, 2012 before the scheduled dates against huge monetary considerations, but nothing was done by the Vigilance Organization as well as the Crime Branch, Kashmir, the two premier Investigating Agencies of the State, despite specific complaints.

(3.) According to the Prosecution story, it came to be noticed, during the preliminary verification, that the results of the JKCET, 2012 had surprised a number of aspirants for the reasons that a good number of candidates from a particular district with insignificant merit in the qualifying examinations had not only qualified the examination but had also made it to the top ranks in the select list. It led to widespread public outcry and resentment against the fairness and genuineness of the examinations and some of the unsuccessful students even lodged their complaints as well. The notion got further strengthened when most of those top-ranking candidates in the JKCET, 2012, failed in the internal session examinations and were not allowed to sit in the 1st year of the MBBS examination by their respective Colleges. During the course of preliminary verification, one of the successful candidates in the JKCET, 2012, namely accused No. 18, Naveed Ahmed Bhat, upon questioning could not even spell correctly the word 'Chemistry'. It further came to the fore that one of the accused persons, namely Farooq Ahmad Itoo (turned to be an approver), who had been running a Computer Centre under the name and style of 'M/S Infotech Computers at Bijbehara', was a close associate of accused No.1, namely, Mushtaq Ahmad Peer/ i.e. the applicant/ appellant herein, who had made the question papers of the JKCET, 2012 available to some candidates of a particular area in advance through his associates, touts, and parents of the aspirants against huge monetary considerations. Upon receipt of the report of the preliminary verification, the IGP, Crime, ordered the registration of the FIR and holding of a detailed investigation. It led to the registration of the FIR No. 24 of 2013 on 24th of September, 2013, for the commission of the offences punishable under Sections 420, 120-B of the RPC and 5(1)(d) r/w 5(2) of the Prevention of Corruption Act and the investigation ensured which was entrusted to a specially constituted team of Officers, headed by Dy.SP, Bashir Ahmad Dar. During the course of the investigation, what got revealed is that the approver, Farooq Ahmad Itoo, came in contact with the applicant/ appellant Mushtaq Ahmad Peer in the year 2001 when the latter, as Head of the Department of Computer Sciences, University of Kashmir, went to inspect the computer institute of the former for its registration with the National Council for Promotion of Urdu Language, New Delhi. Thereafter, the approver started visiting the applicant/ appellant Mushtaq Ahmad Peer and they developed intimacy and friendly relations with the passage of time. The approver started visiting applicant/ appellant Mushtaq Ahmad Peer at regular intervals with gifts and freebees and, later on, when the applicant/ appellant Mushtaq Ahmad Peer was posted as the Chairman BOPEE in February, 2008, the approver got the opportunity to seek favours in the selection of his candidates for the MBBS course on monetary considerations, which the applicant/ appellant Mushtaq Ahmad Peer accepted readily for their mutual benefit. Finally, a criminal conspiracy came to be hatched by the applicant/ appellant Mushtaq Ahmad Peer and the approver, somewhere in March-April, 2012, when the applicant/ appellant Mushtaq Ahmad Peer took the charge of the Controller Examination from Dr. Gopal Gupta on 29th February, 2012 upon latter's superannuation. Under this well-knit conspiracy, the applicant/ appellant Mushtaq Ahmad Peer agreed to provide the copies of the question papers together with answer keys etc. to the approver in lieu of the payment of Rs.60,00,000/- (Sixty lac rupees) for further providing it to the potential candidates aspiring for admission to MBBS in advance of the scheduled date of the examination. The approver Farooq Ahmad Itoo, in turn, started searching for the potential candidates. He contacted his friend and coaccused Sajjad Hussain Bhat, who was already in the business of facilitating admissions in various Medical Colleges outside the State, and struck a deal for providing him the papers in advance upon a consideration of Rs.30,00,000/- (Rupees thirty lacs). In the process, the approver made direct deals with nine candidates against payments of varied amounts of consideration.