CHANDRAN @ MANICHAN @ MANIYAN v. STATE OF KERALA

Citation: [2011] 8 S.C.R. 273

Court: Supreme Court of India

Bench: V.S. SIRPURKAR, CYRIAC JOSEPH

Case summary

CHANDRAN @ MANICHAN @ MANIYAN v. STATE OF KERALA.pdf

Judgment text

[2011] 8 S. C. R. 273 CHANDRAN @ MANICHAN @ MANIYAN v. STATE OF KERALA (Criminal Appeal No. 1528 of 2005) APRIL 4, 2011 [V. S. SIRPURKAR AND CYRIAC JOSEPH, Jj,] Abkari Act - s. 57A - Spurious liquor trade - Improper mixing of noxious substance (methyl alchohol) with liquor led to death of 31 persons and blindness and grievous injuries to several persons - A/legation that the accused were engaged in the business of manufacture, storing, sale and supply of illicit liquor which resulted in the said liquor tragedy - Conviction of A-7 and his two brothers A-8 and A-4 u/ s. 57A(1)(ii), and A-25 and A-30 u/s. 57A(2) - All accused sentenced to life imprisonment - On appeal, held: Methyl alcohol was used in mixing the liquor which was under the control of A-7 who was being helped by his brothers, servants and relatives - In order to be convicted uls. 57A, the P.

rosecution is not required to prove that A-7 physically mixed the methyl alcohol or the injurious substance with the spirit - If A-7 directed his servants to mix methanol that would also be covered within the scope of the words 'mixes or permits to be mixed' in the Section - The knowledge of A-7 that methanol was being mixed, the fact that he was running the business along with his hirelings and the further fact that he used to be present at the time of the mixing are properly proved by the prosecution - A-8 is the real brother of A-7 and there are number of other circumstances to suggest that A-8 was actively engaged in the b.

usiness - A-8 was an active member in carrying the said spurious liquor and the fact that a vehicle under his possession found from his premises had the trace of methanol is sufficient to hold that he had the necessary knowledge that methanol played a major part in the business - The frequent calls of A-8 to his brother also show that he was actively involved in the business - It is not necessary that A-8 had to mix or permit to be mixed the noxious substance himself - A-4 was also thoroughly in the business like his brothers A-7 and A-8 - Conviction of A-8, A-7 and A-4 u/s.

57A(1)(ii) and sentence of life imprisonment imposed thereunder accordingly maintained - As regards A- 25, it is established that he used to take the liquor manufactured by A-7 and the same used to be supplied to him by A-4 and the same was distributed by him further - A- 25 does not seem to have taken care that it was not mixed with methyl alcohol - Once this fact regarding the possession of methyl alcohol is proved, A-25 cannot argue that the possession of methyl alcohol was only incidental - The words "omits to take reasonable precaution" would cast a duty on him to see that the liquor that he sells is not mixed with poisonous substance - Again, under sub-section (5) of s. 57A, he was bound to prove that he had taken reasonable precaution, as contemplated in sub-section (2) - No evidence that the accused discharged his burden in any manner - Therefore, his conviction for offence punishable u/s.

57A(2) is justified:- However, he should not be punished with life imprisonment - This accused has already undergone more than 10 years of imprisonment - Sentence brought down to the period already undergone by him - The case of A-30 more- or less is identical with A-25 - There is enough evidence to show that A-30 was involved in the procurement of liquor from A-4 - He then packed it in the covers and supplied it - A-30 was also behind the bars for more than 10 years - His life imprisonment is also set aside and brought down to that already undergone by him. Abkari Act- s.

57A - Illicit liquor trade - Burden of proof - On whom - Held: The prosecution has the initial burden to suggest that the accused person was involved in the business of illicit liquor and that he knew the nature thereof - It is only then that the burden would shift to the accused to prove that he had no means to know about the nature of the business or the fact that the liquor was being mixed with noxious substance like methanol - On facts, the prosecution had discharged its primary burden - The accused persons, more particularly, A-7, A-4 and A-8, did not offer any evidence so as to discharge the burden put against them.. Abkari Act - s. 57A - Mixing of noxious substance with liquor - Liability under s. 57A - Held: S.

57-A is extremely general - Held: Offence under the Section is not limited to licence holders, but refers to anybody who mixes or permits to be mixed any noxious substance or any substance which is likely to endanger human life with any liquor - In addition to the mixing or permitting to be mixed, sub-section (2) of s. 57A brings in the dragnet of the offence, a person who omits to take reasonable precaution to prevent the mixing of any 0 noxious substance - For being convicted uls. 57A, it is not necessary that the person concerned must himself do the mixing. Penal Code, 1860 - s.

1208 - Spurious liquor trade involving mixing of noxious substance (methyl alchohol) with liquor - Leading to death of 31 persons and blindness and grievous injuries to several persons - Allegations of conspiracy against accused-appellants - Held: On facts, it may not have been a conspiracy to mix the noxious substance but the fact of the matter is that in order to succeed in the business which itself was a conspiracy the accused mixed or allowed to be mixed methanol and used it so freely that ultimately 31 persons lost their lives - Tl1e prosecution clearly proved that there was a noxious substance which was likely to endanger the human life - Secondly, they proved that the substance was mixed, permitted to be mixed and was being regularly mixed with liquor - They thirdly" proved that the persons mixing had the knowledge.

that methanol was a dangerous substance that aspect would be clear from the fact that after the tragedy A-7 went and punished his servants and remonstrated them for 'not properly' mixing methanol with ethyl alcohol - Lastly, it is proved that as a result of mixing of methanol with the liquor and as a result of consuming such liquor as many as 31 persons Jost their lives and number of others suffered grievous injuries. Criminal Trial - Evidence of accomplice - Admissibility - Held: The evidence of an accomplice is admissible subject to the usual caution - On facts, even if the prosecution did not prosecute PW53 - a close relative of the accused, and used his evidence only as an accomplice, it was perfectly legal - The evidence of PW-53 was most natural and was not shaken in any manner in his cross-examination - He gave complete graphic description of the incident in question.

Spurious liquor trade - Role of the State - State Government to take definite steps for overhauling the system, by weeding out the corrupt by punishing them. According to the prosecution, the accusedappellants were engaged in the illegal trade of spurious liquor adulterated with methyl alcohol which led to a tragedy in which 31 persons died, 6 persons lost their eyesight and 500 persons suffered serious injuries due to consumption of spurious liquor. The appellants (A-7, his two brothers-A-4 and A-8, A- 25, A-30 and one other accused, A-1, who died subsequently) were convicted by the Sessions Judge for offences punishable under Sections 1208, 302, 307, 326, 328 and 201 read with Section 34 of IPC as also under Sections 55(a) (g) (h) (i), 57A and 58 of the Abkari Act (a State Act for the State of Kerala) and sentenced to rigorous imprisonment for life.

On appeal, the High Court set aside the conviction of the appellants under Sections 302 and Section 307, IPC, however, maintained their convictions under Section 57A(1 )(ii) under the Abkari Act along with convictions under Sections 324, 326, 328 and A 201, JP. C as also Section 55 (tl):and (i) and 58 of the Abkari Act. ,.. -0" In the present appeals, the appellants challenged their conviction contending that the Courts below had B mis-interpreted the provisions of Abkari Act, more particularly, Section 57A(1 )(i) and (ii) as also Section 57A(2)(ii) and that the Courts below erred in convicting A-7 and his two brothers A-8 and A-4 u/s. 57A(1)(ii), and in convicting A-25 and A-30 u/s. 57A(2). c ·Disposing of the appeals, the Court HELD:1. 1. The original Section 57 of the Abkari Act provided the punishment for adulteration by the licenced •vendor or manufacturer. Section 57A was added in the D · Act by Amendment Act No. 21 of 1984. A plain reading of the Section would mean that now.

the offence is not limited to the licence holders, but refers to anybody who mixes or permits to be mixed any noxious substance or any substance which is likely to endanger human life E with any liquor. The Section, therefore, is extremely general. In addition to the mixing or permitting to be mixed, sub-section (2) of Section 57A brings in the dragnet of the offence, a person who omits to take reasonable precaution to prevent the mixing of any F noxious substance. Significantly if, as a result of such act of mixing of the liquor with noxious or dangerous substance death is caused, the extreme penalty of death also is provided. Imprisonment provided is for a term not less than three years but which may· extend to imprisonment for life as also with a fine of Rs. 50,000/-. G Sub-section 3 is the punishment fOr possession of any liquor or intoxicating drug which is mixed with noxious substance or dangerous drug knowing it to be so. Sub- .

section (4) prohibits the bail and the conditions for grant H thereof. Sub-section (5) puts the burden of proving that . the accused has not mixed or permitted to be mixed or has not omitted to take reasonable precautions to prevent the mixing, on the accused himself. Similarly, the burden would be on the accused to prove that while he was in possession of such liquor mixed with noxious or dangerous substance, he did not know that such substance-was mixed with such liquor. Section 58 speaks for the possession of illicit liquor. [Paras 18, 19] [306-D; 308-H; 309-A-E] 1. 2. Since the burden to prove the offence which normally lies on the prosecution under the criminal jurisprudence was shifted to the accused, it was but natural that the constitutional validity of Section 57A came to be challenged. However, in P. N. Krishna Lal, this Court proceeded to uphold the same.

It held that the provisions did not violate Article 20 (3) of the Constitution and thus Section 57A was held to be valid. In this locus classicus this Court has described complete scope of section 57A as a whole with special reference to Section 57A (5). It is in this backdrop of this exposition of law that the Courts below were expected to decide upon the criminality of the accused involved. It is seen that in the instant case, the parameters fixed by this Court in the aforementioned judgment were scrupulously followed by the Courts below. [Paras 20, 22, 23) [309-F-G; 316-C-E] P. N. Krishna Lal & Ors. v. Govt. of Kera/a & Anr. 1995 Suppl. (2) sec 187: 1994(5) Suppl. SCR 526 - relied on. R. C. Cooper v. Union of India 1970 (1) SCC 248: 1970 (3) SCR 530; Kartar Singh v. State of Punjab (1994) 3 SCC 569: 1994 (2) SCR 375; Shambu Nath Mehra v. State of Ajmer [1956] SCR 199; C. S. D. Swamy v. The State, [1960] 1 SCR 461 - referred to. Salabiaku v. Grance 1988 13 EHRR 379; Woolmington v.

Director of Public Prosecutions, (1935) A. C. 462; Mancini v. Director of Public Prosecutions, (1942) A. C. 1; Reg. v. Edwards [1975] Q. B. 27; Ong Ah Chuan v. Public Prosecutor, (1981) A. C. 648; Queen v. Oakes, 26 D. L. R, (4th) 200; Ed Tumey v. State of Ohio, (71) L. Ed. 749; Morrison v. California, 78 Law. Ed. 664; United States v. Gainey, 13, Law. Ed. 2nd. p. 658; Barnes v. United States, 412 US 837; In County Court of Ulster, New York v. Samuel Allen, 442 US 140; Herman So/em v. Jerry Buckley Helm, 463 US 277; Timothy F. Leary v. U. S. , 395 US 6 - referred to. 2. 1. A-7 appears to be the boss who was running this illegal business of liquor along with his family members including A-4 and A-8 and even their wives were not left behind which is clear from the fact that they were arrayed as accused along with others but could not be brought to book as they were absconding and hence their cases were separated.

It appears to be an admitted position that 26 shops meant for selling toddy-were being managed by this accused. He had the licence for running those toddy shops. He had obtained them in the auction using his own money. From the statements of the accused and from the documents, it is clear that a full-fledged business in illicit liquor was going on. The High Court referred to the oral evidence and also referred to number of documents to show that several buildings were owned, possessed and controlled by A-7 and his wife wherefrom A-7 conducted his liquor business. The High Court also made reference to other properties which were used by A-7 for the purpose of illicit business, which properties belonged to the mother-in-law of A-7. The High Court rightly came to the conclusion that it was A-7 who was controlling the whole affair.

It is clear that methyl alcohol which was the main culprit, was not only a dangerously poisonous substance but was also used in mixing the liquor which was under the control of A-7 who was being helped by his brothers, servants and relatives. A-7 was the captain of the whole team. [Paras 24, 25, 27, 28] [316- F-H; 318-F-G; 319-G-H; 320-G] 2. 2. The reason why accused No. 7 had to mix the methyl alcohol and/or methynol is not far to see. It is clarified from the evidence of PW-96 that A-7 had put the 8 bid of Rs. 4 crores for the 26 toddy shops and even if all the toddy shops had worked in their full capacity he could not have recovered even half the amount and it was, therefore, that this idea of bringing ethyl alcohol, mixing it with methyl alcohol and creating various drinks like Kalapani etc. was mooted. The result thereof was for all to see which resulted in death of 31 persons.

The High Court correctly observed that the basic reason for bidding for 26 shops·for toddy was to get the legitimate godown for toddy. It is proved that those godowns, instead, were used not for storing toddy but for storing ethyl alcohol and mixing it with methyl alcohol for making enormous profits. It is not as if A-7 was selling only toddy. In addition to that he was creating various drinks preferably by mixing ethyl alcohol with methyl alcohol. Thus, there was a full liquor industry going on under his captainship. [Para 30] [321-C-F] 2. 3. The last nail in the coffin is the evidence of PW- 53, a close relative of A-7. He was supplying spirit to A-7 from various places. He has graphically described in his evidence as to how the spirit business was being done inasmuch as he deposed that the spirit used to be brought from the tankers and used to be collected in the syntex tanks and was filled in 35 litres cans.

This spirit was used for making a drink called Ka/apani by mixing with essence and some toddy. It was then filled in the cans and dispatched in the vehicles. The evidence of this witness further goes on to show the position of godown which was used for the storage of ethyl alcohol and methyl alcohol. He referred to methyl alcohol as 'essence'. He described that the spirit was brought from A Karnataka ·and essence used to come on Thursdays in a white Fiat car. The Fiat car had a secret chamber. That car was identified as M. 0. -24. The tank and the platform were built in the back seat and the front seat of the car. There were three valves attached to the same and 35 B litres of methyl alcohol i. e. the essence could be carried in the said car. He gave a graphic description of mixture with spirit which ultimately was sold. He specifically named A-20, A-22, A-23 and A-21 who were supervising the mixing. In his evidence he has also specifically C referred that he had seen M. 0.

-24, the car, importing the essence i. e. the methyl alcohol precisely two days prior to the liquor tragedy. He has also named A-16 and another boy who were the occupants of the said car. He also suggested that he and the other employees were o filling up the essence in 10 cans. The High Court has referred to the further evidence on the part of this witness that in the night at about 10. 30 p;m. the tanker lorry came with spirit and the said spirit was filled in the syntex tank and cans. Those half filled cans were then filled with the E methyl alcohol meaning thereby it was mixed. He then went on to depose that the employees of A-4, namely, A- 5, A-6, A-9 and A-10 came there with three vehicles and essence and they mixed up the essence with the spirit. He claimed that in all 60 cans were filled up and were F dispatched in three cars for transporting to various places for sale.

According to him after the tragedy, on the instructions of A-7, what was left in the syntex tank was poured in the river, un-used cans were removed and plastic covers were disposed of by setting fire and that A-7 had also taken adequate care to send away the G employees for sometime and it was through him that the witness came to know that people had died by drinking the spirit supplied by A-4 and his employees due to a mistake in mixing by A-20 and A-22. (Para 31) (321-G-H; 322-A-H; 323-A-B] . H A 2. 4. For being convicted under Section 57A, it is not necessary that the person concerned must himself do the mixing. It is obvious that A-7 was the boss. In fact PW-53 describes him as the boss. It is, therefore, obvious that everything was done as per his command and if it was B so, then in order to be convicted under Section 57A, the prosecution Is not required to prove that A-7 physically mixed the methyl alcohol or the injurious substance with the spirit.

Even if A-7 commanded his servants to mix up, he is equally guilty under the Section. In fact illegally C importing ethyl alcohol and mixing the same with methanol was a regular trading activity on the part of A- 7. The licences for running the toddy shops was merely a facade. He had undoubtedly put a very tall bid for those licences and could not have afforded to continue merely D on the basis of those 26 toddy shops. Therefore, he gave his business a complete new turn, that is, instead of selling toddy through those outlets he started selling alcoholic drink prepared from ethyl alcohol and methanol and that illegally imported both and all this was going on E with the corrupt cooperation of those who could have checked it. Therefore, it is a proved position from the evidence of PW-53 that A-7 was the boss of the illegal trade. He got the methanol imported and used his godown which he rightfully possessed on account of his F licences for 26 shops.

Therefore, his knowledge that methanol was being mixed, the fact that he. was running the business along with his hirelings and the further fact that he used to be present at the time of the mixing are properly proved by the prosecution with the aid of testimony of PW-53 and are enough for a finding about G Section 57A(1)(ii). It was not necessary that A-7 had physically mixed the methyl alcohol for his being convicted. It was actually done on his command and within his knowlege. His offence could also come within the definition on account of the other words of the H Section 'or permits to be mixed'. While interpreting these words, namely, 'whoever mixes or permits to be mixed' the real import of the words would have to be taken into consideration and thereby if A-7 directed his servants to mix methanol with methyl alcohol that would also be covered within the scope of the words 'mixes or permits to be mixed' in the Section.

It has already come in the evidence that all this mixing was done at the instance of, with the direction of and to the knowledge of the accused No. 7. He was the king pin or the main actor on whom the huge business of liquor trade rested. It cannot, therefore, be said that the conviction under section 57A (1) (ii) was in any manner incorrect. [Paras 32, 34] [323-D-H; 324-A- B-G-H; 325-A-C] 2. 5. There is no . reason to discard the testimony of PW-53; The evidence was most natural and was not shaken in any manner in his cross-examination. He has given a complete graphic description of what happened. He has also spoken as to what happened when A-15 and A-7 came and A-7 gave a beating to A-20 asking him as to how mixing was not properly done. He then directed the whole remaining material to be poured into the river and to destroythe cans.

Accordingly, as per the direction, the concoction in the Syntex tank was poured in the river and the cans and the covers were burnt and buried under the sand. He pointed out that the essence mixed spirit was taken to the shed belonging to A-7. He spoke about the electronic machine, hand machine and the process of filling the concoction in the plastic cans. He pointed out that on that day all the plastic covers were burnt by them. A-7 had also directed the witness and the other servants to remain absconding. In his crossexamination, he not only identified A-7 but called him Boss and Annan, elder brother. Some irrelevant questions were put to him which he answered suggesting that the property belonged to ·A-7 and the godown also belonged to him and the mixing used to be done there only. Though he was subjected to lengthy crossexamination, the main story about the mixing has not suffered any dent. On the other hand, the operation of mixing was explained again in the cross-examination.

He owned up that he himself carried Kalapani on number of occasions to the various shops of A-7. The evidence given by this witness sounds truthful because he has not tried to justify himself nor has he made any efforts to save himself. Considering the whole evidence, this witness is creditworthy. [Paras 35, 36] (326-C-H; 327-A-C] 2. 6. The evidence of PW-60 provides complete corroboration to the evidence of PW-53. This is apart from the fact that there is another piece of evidence which corroborates the evidence of PW-53 which is to be found in the evidence of the Investigating Officer, PW-270. The description given by PW-270 on his searches of the places and, more particularly, of the places as described by PW-53 completely tallies. These are also material particulars which would lend support to the testimony of PW-53. On the whole there are number of other corroborations to the evidence of PW-53. [Para 41] (331- C-E] 2. 7.

It cannot be said that th;, evidence of PW-53 could not be taken into consideration because this witness, though an accomplice, was neither granted pardon under Section 306 Cr. P. C. nor was he prosecuted. Even if the prosecution did not prosecute PW-53 and used his evidence only as an accomplice, it was perfectly legal. The evidence of such witness subject to the usual caution was admissible evidence. [Para 42] (332-E-G] 2. 8. The Trial Court and the appellate Court were right in convicting A-7. The High Court rightly confirmed the same. [Para 46] [339-G-H] Laxmipat Choraria &·Ors. v. State of Maharashtra AIR 1968 SC 938: 1968 SCR 624 - relied on. Shankar @ Gauri Shankar v. State of Tamil Nadu 1994 (4) SCC 478; Rampa/ Pithwa Rahidas v. State of Maharashtra (1994) Suppl. (2) SCC 73: 1994 (2) SCR 179; Rattan Singh v. State of Himachal Pradesh 1997 (4) SCC 161: 1996 (9) Suppl. SCR 938; Smt. Laxmi v. Om Prakash AIR 2001 SC 2383: 2001 (3) SCR 777 - referred to. 3.

The prosecution has the initial burden to suggest that the accused person was involved in the business of illicit liquor and that he knew the nature thereof. It is only then that the burden would shift to the accused to prove that he had no means to know about the nature of the business or the fact that the liquor was being mixed with noxious substance like methanol. In the present case, A- o 8 is the real brother of A-7 and there are number of other circumstances to suggest that A-8 was actively engaged in the business. It is clear from the evidence of discovery regarding the fake car number plates that A-8 was neck deep Into the business of spurious liquor.

He was an active member in carrying the said spurious liquor and the fact that a vehicle under his possession found from his premises had the trace of methanol is sufficient to hold that he had the necessary knowledge that methanol played a major part in the business which was headed by his real brother A-7 and in which he was an active partner. The contentions raised that he may at the most be booked for transporting the spurious liquor is also not acceptable because if that is established then his active participation in the business also comes to the forefront. Thereby his knowledge that the liquor was being mixed with methanol has also to be presumed. There was no necessity for keeping the fake unattached number plates in his premises and the whole objective is clear of shielding the cars by attaching fake number plates to them. The High Court thoroughly discussed about the A vehicle which was sold by PW-68 and was found in the possession of this accused.

The High Court also discussed about the transaction of his house, which was in front of the half built house where obnoxious liquor trade was going on. A-8 had taken a house right in front B of the aforementioned half built house and it was at his instance that the real number plates of the car which had the traces of methanol were found. Therefore, no reason is found to discard the evidence of this discovery. It is obvious that A-8 was engaged in the business of c manufacture, storing, sale and supply of illicit liquor along with A-7 which resulted in liquor tragedy. A-8 was well aware of the nature of the business as he was thoroughly into it. Therefore, the offence under section 57A (1) (i) and (ii) as also the other offences unde. r Sections 324, 326 and 328 read with Section 34, IPC have 0 been rightly held proved against him. It cannot be said that the discovery w~s unnatural and was farcical since both the Courts hav~ held the said discovery to have been proved.

Again his frequent calls to his brother would cut both ways and would also show that he was E actively involved in the business. It is not necessary that the accused had to mix or permit to be mixed the noxious substance himself. He could be booked on the same basis as A-7 has bee~ booked on the same logic. It cannot be accepted thi. t A-8 had no idea that methanol F is a noxious substance. If a huge business was going on and methanol was being imported along with ethyl alcohol in huge quantity and if the car which brought the methanol was in his possession and further if the methanol is established to be a noxious substance, it G would be a travesty to hold that A-8 did not know that methanol was obnoxious substance. It is also well established that this accused could be convicted with the aid of Section 1208, IPC and also independently of the offence under Section 57 A (1) (ii) as he was not only the H part of the business but had actively taken part in it.

That OF KERALA by itself is sufficient to hold that he had the knowledge about the mixing of the ethyl alcohol with the noxious substance like methanol and in spite of it,continued. His offence would be covered fully in the phraseology 'or · permits to be mixed' and accordingly, his conviction is confirmed. The Trial Court and the appellate Court did not commit any illegality in booking him under section 57A(1)(ii) also. Considering the number of deaths caused on account of the business in which this accused was neck deep, no leniency can be shown. The appeal of A- 8 is accordingly dismissed. [Para 49, 50 and 52] [343-F- c H; 344-A-F; 345-B-H; 346-A-D] 4. 1. A-4 is another brother of A-7 and A-8. The part played by A-4, is not less than the part played by A-8, if not more. It is clear that this witness was thoroughly in the business like his brothers A-7 and A-8.

It is, therefore; clear that this was nothing but a conspiracy to run a patently illegal business along with his two brothers and others. A-5 and A-11 along with A-6 and A-10 are proved to have physically transported the mixed substance to various places. However, they are not the persons who 'E took active part in the business as its proprietors as A-4 did. In fact A-4 was at the helm of the affairs unlike those accused who merely transported the liquor. The case of A-4, therefore, is quite different. It was argued that he himself had not transported the noxious substance which was done by A-15. That may not be so, but he was practically managing the whole show. It has rightly been held· by the Trial Court and the appellate court that A-5 was a worker of A-4 and took active part in the transportation of methanol.

His involvement in the business is so deep that it was clear that he was a conspirator and it was in pursuance of conspiracy that the whole liquor business which essentially involved the mixing of methanol with the ethyl alcohol was being conducted. [Para 53] [346-E; 348-C-H] A 4. 2. The language of Section 57A(1) of the Abkari Act is wide enough and A-4 will fit in the broad language. Reading the language of Section 57 A (1) as it is, it is more than proved that all these accused persons entered into a conspiracy to do the illegal liquor business and in order B to succeed in their business, took recourse to mixing methanol with ethyl alcohol and brought out a new type of spurious liquor. In order to increase the potency of the drink and . in order to probably give taste, they mixed the methanol.

Once ethyl alcohol is proved to be a noxious c drug, if they are found to be mixing or permitting mixing methanol with ethyl alcohol then the offence would be complete whether they had the knowledge regarding the qualities of methanol or not. That is apart from the fact that in this case itself to say that the accused did not know about the properties of methanol would be wrong. 0 If that had been so they would not have been running between Hosur and Kerala to bring methanol in the cars which had fake registration numbers and secrete chambers. [Para 54) [349-C-G) E 4. 3. There can be no question about the absence of conspiracy. The whole business itself was a conspiracy. It may not be the conspiracy to mix the noxious substance but the fact of the matter is that in order to succeed in the business which itself was a conspiracy F they mixed or allowed to be mixed methanol and used it so freely that ultimately 31 persons lost their lives.

The prosecution has discharged its primary burden. The accused persons, more particularly, these three brothers have not offered any evidence so as to discharge the G burden put against them under section 57A(1 )(v). In this case the prosecution has clearly proved that there was a noxious substance which was likely to endanger the human life. Secondly, they have proved that substance was mixed, permitted to be mixed and was being H regularly mixed with liquor. They have thirdly proved that · the persons mixing had the knowledge that methanol was a dangerous sub~tance that aspect would be clear from the fact that after the tragedy A-7 went and punished his servants and remonstrated them for 'not properly' mixing methanol with ethyl alcohol. Lastly, it is proved that as a result of mixing of methanol with the liquor and as a result of consuming such liquor as many as 31 persons lost their lives and number of others suffered grievous injuries. The appeal filed by A-4 is dismissed.

[Para 55] [350-E-H; 351-A-D] 5. It is well proved by the prosecution that A-25 was a major link used to purchase liquor from A-4 and he was the one to distribute the same. A-25 was selling liquor in retail through A-32, A-35 etc. A-25 and A-10 were the employees of A-4 who were supplying the liquor•. It is 0 established that A-25 used to ·take the liquor manufactured by A-7 and the same used to be supplied · to him by A-4 and the same was distributed by hirri · further. The sale on the part of A-25 and his active participation in the business run by A.. 4 and A-7 was , clearly brought out. He was convicted for the offence under Sections 57A(2)(i) and was heavily fined for Rs. 50,000/-, Rs. 25,000/- and Rs. 2 lakhs on different counts including Section. 55(a)(i) as also under Section 58 of the Abkari Act. He was, thus, in a position for distributors and it has come out in the evidence that the liquor sold by sub-distributors killed number of persons.

The sub-distributors were none, but A-37, A-35 and A.. 41. It was the chain of distribution of liquor mixed with methyl alcohol. It is obvious that he was in possession of the poisoned liquor and does not seem to have taken care that it was not mixed with methyl alcohol. There is no doubt that A-25 was acquitted of the offence under Section 1208, IPC by the Trial Court and there is no appeal against it. The conviction of this accused is for offence punishable under Section 57A(2) and on that account, he has been awarded life imprisonment. There can be no dispute that this witne~s had no control over the business run by A-7 and, therefore, he was rightly acquitted for the offence under Section 1208, IPC i. e. conspiracy. However, it cannot be said that his conviction under Section 57A(2) is incorrect on that count. From the evidence of PW-252, it is found that there was a search in the house of this accused on 23. 10. 2010 and a bottle was seized which was mixed with ethyl and methyl.

This was substantiated by Chemical Analysis Report (Exhibit .. P-784). He was also in possession of pure methyl alcohol, which is substantiated by Exhibit P-417, a disclosure made by him to PW-269 as per Exhibit P-1019. Even this was found to be methyl alcohol. Once this fact regarding . the possession of methyl alcohol is proved, A-25 cannot argue that the possession of methyl alcohol was only 0 incidental. There is no reason for keeping methyl alcohol with him. After all, he was not going to use it as a deodorant or perfume. This may suggest that he had a hand in mixing the alcohol with methyl alcohol, but there is no evidence for that and he has not been convicted for the offence under Section 57A(1 ). The words "omits to take reasonable precaution" would cast a duty on him to see that the liquor that he sells is not mixed with poisonous substance.

Again, under sub-Section (5) of Section 57A, he was bound to prove that he had taken reasonable precaution, as contemplated in sub-Section (2). There is no evidence to the contrary nor has the accused discharged his burden in any manner. Therefore, his conviction for offence punishable under Section 57A(2) is justified. However, he should not be punished with life imprisonment. This accused is convicted for offence punishable under Section 55 as also under Section 58, the maximum punishment for which Section is 10 years and he has already undergone more than 10 years of imprisonment. This Court, OF KERALA therefore, deems it fit while confirming his conviction for A the other offences and the sentences therefor to bring down the sentence from life imprisonment to what is undergone by him. [Para 56) [353-A-H; 354-A-G] 6. The case of A-30 more or the less is identical with 8 A-25.

As per the prosecution version, this accused had filled the liquor supplied by A-4 through A-5 and A-10 in covers and on the fateful night (on 20. 10. 2000), he carried the same in Car to the residence of A-39 and she, in turn, sold the same to the customers. The evidence of PW-153 is clear enough, who complained that the liquor was C found to be stronger and when he asked what the matter was, it was pressed by A-39 that the liquor was supplied by A-30. In fact, as per the evidence of PW-153, he had himself found A-30 bringing the liquor. Similar is the evidence of PW-154 who felt uneasy after drinking the D liquor; He was required to be hospitalized. Even he has deposed that A-39 used to sell the liquor which was supplied to her by A-30 and A-31. He has also seen the liquor being supplied. In fact, he also spoke about the happenings on 20. 10. 2000. PW-164, the father of A-39 had E also consumed the liquor and he also suffered. He also established the connection of A-30.

Thus, there is enough evidence to establish that on the fateful day, A-30 accompanied by A-31 supplied three bundles of covers, each having 100 covers. He has made a F disclosure statement that alcohol was poured in the closet of a latrine recently constructed on the eastern side of the Senior Orthodox Church. The liquid in this closet which was having smell of liquor was collected and it was established that it contained methyl alcohol. M. O. 256 is G the sample while Exhibit P1001 is the chemical analysis report. There can be no dispute that there is enough evidence to show that A-30 was involved in the procurement of liquor from A-4. He then packed it in the covers and supplied to A-39. The High Court did not find H him guilty under Section 304 or Section 307, IPC. Instead, the High Court booked him for offence under Section 57A(2)(ii), Section 55(a), (h) and (i) and Section 58 of the Abkari Act.

The contention raised that his conviction should not be maintained under Section 57A(2)(ii) as he did not have knowledge and he was not concerned with the preparation of the spurious liquor is liable to be rejected on the same reasoning as given for rejecting the similar contentions raised on behalf of A-25. The role played by both is almost the same. The contention raised that he could have been booked only under Sections 55(a), (h) and (i) and under Section 58, is also rejected. The statement made that this accused was also behind the bars for more than 10 years, was not seriously disputed on behalf of the Government. Therefore, his life imprisonment is set aside and brought down to that 0 already undergone by him. The appeal filed by A-30 is dismissed with the modification in the sentenc·e as indicated. [Para 58] [355-C-H; 356-A-H; 357-A] 7.

This Court is not only perturbed by the enormousness of the tragedy but the enormousness of the liquor trade run by A-7 and that was under the socalled vigilant eyes of those who had duty to stop it. The avarice is not only on the part of the accused persons, but also on the part of those who benefit from this horrible business. It is hoped and expected that the Kerala Government takes up this issue and takes definite steps for overhauling the system. It will be, therefore, for the administrators and the Government to take positive steps, firstly, to overhaul the system by weeding out the corrupts by punishing those who are responsible for the whole system looking sideways. This Court is not aware as to whether such an exercise is taken up, but if it has not been taken up the government is directed to take such steps. [Para 59) [357-E-H; 358-A] State of Maharashtra v. Mayer Hans George 1965 (1) SCR 123; State of Gujarat v. Acharya D. Pandey & Ors.

(1970) 3 SCC 183: 1911 (2) SCR 557; Sanjay Dutt v. State Through CBI (1994) 5 sec 410: 1994 (3) Suppl. SCR 263; Kalpnath Rai v. State (through CBI) (1997) 8 SCC 732 :.... distinguished. Lim Chin Aik v. Reginam (1963] 1 All ER 223; Sweet v. Parsley (1969] 1 All Er 347; B (a minor) v. Director of Public Prosecutions (2000] 1 All 833 - referred to. Case Law Reference: 19·94 (5) Suppl. SCR 526 relied on Para 20,48,49,55 1970 (3) SCR 530 referred to Para20 1994 (2) SCR 375 referred to Para 20 1988 13 EHRR 379 referred to Para 21 (1935) A. C. 462 referred to Para 21 (1942) A. C. 1 referred to Para 21 [1975] Q. B. 27 referred to Para 21 (1981) A. C. 648 referred to Para 21 26 D. L. R, (4th) 200 referred to Para 21 (71) L. Ed. 749 referred to Para 21 78 Law. Ed.

664 referred to Para 21 412 us 837 referred to Para 21 442 us 140 referred to Para 21 395 us 619 referred to Para 21 1960 SCR 461 referred to Para 21 1994 (2) SCR 179 referred to Para 37 1994 (4) sec 478 referred to Para 37 1994 (2) SCR 179 referred to Para 37 1968 SCR 624 relied on Para 37 1996 (9) Suppl. SCR 938 referred to Para 37 8 2001 (3) SCR 777 referred to Para 37 1994(5) Suppl. SCR 526 referred to Para 37 1971 (2) SCR 557 referred to Para 37 1994 (3) Suppl. SCR 263 referred to Para 37 1968 SCR 624 referred to Para 42 1996 (9) Suppl. SCR 938 referred to Para 43 2001 (3) SCR 777 referred to Pata 43 1963) 1 All ER 223 referred to Para 54 1965 (1) SCR 123 distinguished Para 54 1969] 1 All Er 347 referred to Para 54 (1970) 3 sec 183 referred to Para 54 1971 (2) SCR 557 distinguished Para 54 (1994) 5 sec 410 referred to Para 54 1994 (3) Suppl.

SCR 263 distinguished Para 54 (1997) 8 sec 132 distinguished Para 54 [2000) 1 All 833 referred to Para 54 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1528 of 2005. From the Judgment & Order dated 8. 10. 2004 of the High Court of Kerala at Ernakulam in Criminal Appeal No. 824 of 2002. WITH Criminal Appeal Nos. 1530,1531, 1532 of 2005 and 864 of 2011. K. Radhakrishnan, V. Shekliar, A. Sharan and J. C. Gupta, K. K. Mani, Abhishek Krishna, R. Shivkumar, Adolf Mathew, Siddarth Dave (for A. Raghunath), Jemtiben AO, Malini Paduval, Babita Sant, Mohd. Sidduque, Rajasree Ajay, S. Ganesh, Deepakshi Jain, V. K. Sidharthan, Geetha, R. Satish and G. S. Mani for the appearing parties. The following Judgment of the Court was delivered JUDGMENT 1. This judgment will dispose of Criminal Appeal No. 1528 of 2005 (Chandran @Manichan @ Maniyan v. State of Kerala) filed by Chandran (accused No. 7), Criminal Appeal No. 1530 of 2005 (Manikantan @ Kochani v.

State of Kerala) filed by O Manikantan (original accused No. 4), Criminal Appeal No. 1531 of 2005 (Manoharan v. Kerala State Rep. by Public Prosecutor) filed by Manoharan (original accused No. 30), Criminal Appeal No. 1532 of 2005 (Vinod Kumar @ Vinod v. State of Kerala) filed by Vinod Kumar (original accused No. 8), SLP (Crl. ) 842 of 2006 (Surest'! Kumar @ Suresh v. State of Kerala) filed by Suresh Kumar (original accused No. 25) and Criminal Appeal No. 800 of 2006 (Herunessa @ Thatha v. State of Kerala) filed by Herunessa (original accused No. 1). Out of all these appeals, the appeal filed by accused Herunessa @ Thatha has become infructuous since accused No. 1, Herunessa is reported to have expired. 2. Leave granted in SLP (Crl) 842 of 2006. 3. All the accused-appellants stood convicted by the Sessions Judge, Kallam by its judgment dated 16. 7.

2002 for various offences punishable under Sections 1208, 302, 307, 326, 328 and 201 read with Section 34 of the Indian Penal Code (IPC) as also under Sections 55{a) (g) (h) (i) , 57A and 58 of the Abkari Act. We need not re(er to the punishments awarded to all these accused persons. Suffice it to say, that practically all of them were convicted for offences under Section 302, IPC Section 57A (1) (iii) of the Abkari Act which is a State Act for the State of Kerala. The accused persons under those Sections were sentenced to suffer rigorous imprisonment for life. They have also been awarded lesser sentences and have been slapped with heavy fines.

They appealed against this verdict, the conviction and the sentences before the Kerala High Court which has set aside the conviction for offence under Sections 302 and Section 307, IPC, however, maintained the convictions of most of the appellants for offence under Section 57A (1) (ii) under the Abkari Act along with convictions under Sections 324, 326, 328 and 201, IPC as also the other Sections like Section 55 (h) and (i) and 58 of the Abkari Act. In short, most of the accused persons were directed to suffer rigorous imprisonment for life and, as the case may be, rigorous imprisonment for 10 years along with fine. All these appeals 0 were heard jointly since they were against the common judgment. As many as 48 accused persons came to be tried before the Sessions Judge. Some of them were acquitted at the stage of trial and some others at the appeal stage, leaving the above mentioned appellants in the fray who are before us. 4. Alcohol has already proved itself to be .

one of the major enemies of the human beings. However, its grip is not loosened in spite of the realization of the evil effects of alcohol on the human life. On the other hand, the unholy grip is being tightened day by day. Therefore, when the standard and healthy alcohol in the form of liquor is not available or is too costly for a common man, the poor section of the society goes for illicitly distilled liquor which is sold by the bootleggers. The conscienceless bootleggers - thanks to their avarice for money - take full advantage of this human weakness and without any compunction or qualms of conscience, distill illicit liquor and then to increase the sale and to gain astronomical profits make their product more potent at least in taste so as to attract the poor customers.

Such poor customers invariably become the prey of such unholy avarice on the part of the bootleggers and in the process even lose their lives at times or suffer such injurieswhich are irreparable like total blindness etc. and that is precisely what has happened in this case. 5. On 22. 10. 2000, in the wee hours, Sub-Inspector of ":. 1. · Police, Paripally received information that one Raghunatha Kurup of Kulathoorkonam and seven others were admitted in 8 the Medical College Hospital Thiruvananthapuram for treatment on account of illness caused by consumption of illicit liquor. He reached the Hospital and recorded the first information statement of Raghunatha Kurup at 2 a. m. By that time, one Sasidharan who had consumed the illicit liquor had died and two others were lying in unconscious condition. On that basis, Sub-Inspector registered Crime No. 268 of 2000 under Section 302, 307, IPC read with Section 34, IPC and under Section 57A of the Abkari Act.

Little did he know the exact ramifications· or· vastness of the grim tragedy which was about to take place. Three other similar crimes were registered at Kottarakkara police station and this was followed by further crimes registered in the sarne police station being Crime No. 809 of 2000, Crime No. 810 of 2000, Crime No. 811 of 2000 and Crime No. 817 of 2000. All these crimes were consolidated with crime No. 268 of 2000 of Parippally police station and the information started trickling regarding the consumption of spurious liquor by poor persons and their admittance to the hospital from within Anchal and Pooyappally police station limits. Similar incidents had taken place within the limits of Mangalapuram police station and the crime was registered there also. Investigation machinery quickly responded to the happenings and a special investigation team (SIT) was constituted as per the directions of Director General of Police, Kerala, Thiruvananthapuram on 25. 10.

2000 which was to be headed by Shri Sibi Mathews, IPS who was the Inspector General of Police. He was to head the team of seven persons, six other persons being the police officers of the level of Inspectors and above. All these earlier mentioned crimes were taken over for investigation by SIT. They started investigation in all the concerned police stations where the crimes were reported. It was realized that as many as 31 A persons had lost their lives, six persons had suffered total blindness in Kollam District whereas more than 500 persons suffered serious injuries on account of the drinking of the illicit liquor. 6. Unfortunately, all this was going on in God's own 8 country, Kerala which was turned into hell by the liquor mafia. Eventually, investigation by the SIT was completed and the final report was filed before the Judicial Magistrate, 1st Class, Paravoor on 21. 1. 2001 against 47 persons. After the chargesheet was filed, accused No.

48 was also added by a C supplementary charge-sheet. However, as many as four accused persons, they being accused Nos. 34, 36, 39 and 45 died on account of consumption of their own medicine, the spurious liquor. Accused No. 3 had lost his eye sight completely. Few accused were absconding, their cases were split up. Rest D ofthe accused were sent for trial before the Sessions Judge before whom a marathon trial took place wherein 271 witnesses were examined, as many as 1105 documents were proved and relied upon _and over 291 material objects were produced. The defence also examined as many as 17 E witnesses and relied on 110 documents being Exhibits D-1 to D-111. 7. Prosecution alleged that methyl alcohol which is a poisonous substance used to be brought from Karnataka and F mixed with Ethyl alcohol. At times, this concoction was mixed with toddy and other essences resulting in a drink called Ka/apani.

The methyl alcohol used to be mixed with ethyl alcohol which was also illegally and illicitly procured in order to add potency to the drink so that more and more people would G purchase the same. These sales were made from the regularly licensed toddy shops and from other places. There was welloiled machinery, huge in proportion, the main component of which was Chandran (accused No. 7) who was a toddy contractor. His brothers, Manikantan (accused No. 4) and Vinod Kumar (accused No. 8) were deputies helping him. This group iH had servants like Balachandran (A-15), the Manager. Even their wives did not lag behind. There were laboratories, assistants and labourers. There were drivers and a fleet of vehicles which were used for importing methyl alcohol from Karnataka and then it used to be brought to the laboratories maintained by Chandran (A-7), Manikantan (A-4) and Vinod Kumar (A-8) where the mixing used to take place. Accused Nos.

A-4 (Manikantan @ Kochani), A-7 (Chandran @ Manichan), A-8 (Vinod Kumar), A-15 (Balachandran), A-18 (Usha), A-19 (Sugathan), A-20 (Vijayan), A-21 (Rassuludeen), A-22 (Suresh @ Sankaran) and A-23 (Binu @ Monukuttan) were active in firstly procuring the methyl alcohol and then mixing the same in the laboratories and then distributing the same in the whole district, more particularly, to the various outlets for sale of toddy. Chandran (A-7) used to control these shops which were either in his nar:ne or some other names. It was alleged by the prosecution that all these accused persons hatched a criminal conspiracy in or about March, 2000 prior to the auction of toddy shops for the period between 2000-01 and well-oiled machinery was created forJrnj:lorting·methyl alcoholfrom a place called Arihant Chemicals, Bangalore. Chandran (A-7) controlled toddy shop Nos. 1 to 26 of Chirayinkil Panchayat so that there were ·easy outlets available for the sale of spurious liquor.

Once methyl alcohol was imported, it used to be brought to the huge laboratories constructed for that purpose and carefully concealed which was located at Pandakasala. It was alleged by the prosecution that Gunasekharan (A-17) purchased two barrels of methyl alcohol as part of the criminal conspiracy from Arihant Chemicals, Bangalore and the same was entrusted to Anil Kumar (A-16) for import to Kerala for the purpose of its mixing with the spirit ethyl alcohol and for sale by Manikantan @ Kochani (A-4), Chandran@ Manichan (A-7), Vined Kumar (A-8), Balachandran (A-15), Usha (A-18), Sugathan (A-19), Vijayan (A-20), Rassuludeen (A-21 ), Suresh @ Sankaran (A- 22), Binu @ Monkuttan (A-23). It was brought by Anil Kumar (A-16) in a Fiat car which had fake registration number.

This Fiat car was fitted with a secret tank and thus the poisonous A methyl alcohol was imported and was mixed with 56,200 litres of spirit which was also imported to Kerala by Mahesh (A-12), Salil Raj (A-13), Ashraf (A-14) and Sakthi (A-48). All the mixing was done at Pandakasala and then it was given for distribution to Manikantan (A-4) who transported it through Anil Kumar (A- B 5), Shibu (A-6), Santhosh @ Kochu Santhosh (A-9), Santhosh @Valiya Santhosh (A-10), Mohammed Shaji@ Shabu (A-11), knowing it to be injurious to health, through various other vehicles. 8. The said methyl alcohol which was mixed in the C Pandakasala godown meant for toddy shop Nos. 1 to 26 of Chirayinkil Panchayat and then got distributed by the above accused persons who all knew very well that it was injurious to health and was fatal. For this purpose, cars bearing registration No. PY01 M-6582 and TN-1-R 9283 and a Van bearing D registration No. KLOQ-2787 were used. 9.

It was further the case of the prosecution that from this poisonous spirit, 35 litres were taken in a car bearing registration No. TN-1-R 9283 on 20. 10. 2000 at about 3. 30 p. m. E with the assistance of Anil Kumar (A-5) and Shibu (A-6) and was given to Herunnesa (A-1 ), Rajan (A-2) and Raju @ Mathllakom Raju (A-3) in the house of A-1 and A-2 at Kalluvathukkal. It was alleged that accused Nos. 1 and 2 and 3 diluted the spirit by adding water and sold it through their outlets F because of which 18 persons died due to consumption of spurious liquor. It was pointed out that two persons lost their eyesight and number of others sustained grievous injuries. It was further alleged in the charge that Manikantan (A-4) with the help of Anil Kumar (A-5) and Santhosh (A-10) transported 10 G Kannas full of spurious liquor having capacity of 35 litres in the car bearing fake registration No. KL 01M 7444 on 20. 10.

2000 night to Charuvila Puthen Veedu, Anthamon Muri and Kalyanpuram village at Kottarakkara and there the said liquor was sold by A-30 with the assistance of A-31 who earlier diluted the spurious liquor by adding water at the house of A-30 and H OF KERALA packed liquor in polythene covers containing 100 ml each. The said pouches were also sealed with the help of sealing machine. Then the pouches were loaded in one Maruti car on the same day and the same was entrusted to A-39, Latha Kumari. Even these accused knew the spurious nature of the liquor and its lethal effects. Some liquor out of this was sold to one Soman Pillai and CWs 630 to 634 and on that account Latha Kumari and Soman Pillai died while others· suffered serious injuries. 1O. It was further alleged by the prosecution that the remaining five Kannas full of spurious liquor were then transported in the car bearing fake registration No. KL 01 M 7444 with the help of accused Nos.

5 and 10 on the same day near the shops of CWs 633 and 664 at Pallikkal in Mylom village at about 8. 45 p. m. and entrusted the same to A-25 who with the help of some other accused like Sujith (A-24), Dileep (A-26), Shyjan (A-27), Anil Kumar@ Kittu (A-28), Rathy (A-29), · Sashikumar (A-32), Shibu (A-33), Rajan (A-34), Sudhakaran (A-35), Pachan (A-36), Santhosh (A-37), Samuel (A-38), Sathyan (A-40), Soman (A~41) sold the spurious liquor at ·\various places in Kottarakkara Taluk at Pallikkal, Kalyanpuram Puthoor and Mylom after diluting the same with water. Because of the consumption of this liquor, as many as 7 persons died and out of them Rajan (A-34) and Pachan (A-36) also died by consuming the same liquor. Some others lost their eye sight and still some others sustained grievous injuries. 11. Another round of 35 litres of kannas was taken by A- 4 with the help of all on 20. 10.

2000 in the evening to Attingal Avanavancheny and was sold to A-42 who along with A-47 took the spurious liquor in an auto rickshaw driven by A-47 near the CRPF camp in Thiruvananthpuram District and sold it to A-45 who further sold about 14 litres of spirit to A-44 and 7 litres of spirit to A-46 on 25. 10. 2000 in the evening. The said liquor was diluted by A-45 with the help of A-43 by mixing water and converted it into arrack and further sold it to a person called 302 [2011) 8 S. C. R. Bhaskaran Kutty Nair. It is alleged that because of the consumption of the same liquor, A-45 himself died while some others suffered grievous injuries. 12. The prosecution also allsged that A-44 diluted the spirit by adding water and sold it on 26. 10. 2000 near Apollo 8 colony to CWs 433 to 456. They consumed the same liquor and sustained grievous injuries and one of them lost his eyesight. 13.

The prosecution alleged that the conspiracy was hatched in March, 2000 amongst all the accused and because of the criminal act on the part of the accused of mixing poisonous methyl spirit, death of as many as 31 persons was caused, as many as 266 persons suffered grievous injuries while 5 persons lost their eye sight completely. All the accused persons were, therefore, charged with the offences under o Sections 302, 307, 326, 328, 201, 1208 read with Section 34 of the Indian Penal Code as also under Section 55 (a) (g) (h) and (i), Section 57A and Section 58 of Abkari Act. On the basis of this charge, evidence was led of about 270 witnesses. The accused persons abjured their g. uilt and claimed to be tried. 14.

The sessions Judge categorized ~he accused persons in the following manner: (1) those who were involved in the manufacture of the illicit liquor; (2) those who were engaged in the distribution and transportation of the same; (3) Those who were mainly engaged in the sale of illicit liquor. 15. Accused Nos. 13, 17, 31, 32, 37, 40, 43, 46, 27, 48 were found not guilty. They were straightaway acquitted. Some of the accused persons died during the trial. Those who were convicted by the Sessions Judge were awarded sentences depending upon the seriousness of the crime as per the OF, KERALA · classifications which have been shown above, Naturally, the persons in category (1) and category (2) were dealt with severely and most of them were awarded the maximum punishment of life imprisonment along with heavy fine.

Those accused persons who were in category (3) were dealt with a little lightly in the sense that they were not given life imprisonment but imprisonment ranging from 3 years to 10 years was awarded to them. The convicted accused filed appeals before the High Court. The High Court also acquitted few of the accused persons and those whose appeals were dismissed have now come before us by way of separate appeals which we have indicated in the first paragraph of this judgment. The High Court has considered the appeals filed by various accused before it separately. We also propose to do the same thing. We have to consider mainly the appeals filed by accused Nos. A-7, A-4, A-30, A-8 and Suresh Kumar (A- 0 25) who filed SLP {Crl) 842 of 2006. Before we take up this task, we would analyze the impugned judgment of the High Court. 16. To begin with, the High Court, after quoting Sections 8, 55, 57A and 58 of the Kerala Abkari Act, proceeded to consider the entire evidence appeal-wise.

In that, the High Court appreciated the evidence of the individual witnesses insofar as they were relevant to the particular accused whose appeal was being considered as also the documentary evidence as figured against that particular accused. Therefore, it so happened that sometimes the appreciation of evidence of common witnesses is repeated in the High Court's judgment but considering the large number of witnesses, more than 276 in all, that was inevitable. Still_Jt will be our endeavour to avoid the repetition while considering the matter at this stage. 17: These appeals are against the concurrent findings of fact and, therefore, it is obvious that this Court does not enter the area of re-appreciation of evidence. That can be done only in case the appreciation is substantially defective and the H. A inferences drawn by the Courts below could not have been drawn in law.

This Court has, time and again, declared that even where the Courts have acted upon inadmissible evidence or have left out of the consideration some material piece of evidence, the defence would be entitled to address this Court B on those issues, and the Court would proceed to re-appreciate the evidence and re-examine the factual findings on that basis alone. We must, at this juncture, [ecord that at least prima facie such is not the case here. On the other hand, we find that the evidence has been meticulously appreciated by both the Trial c and the appellate Court. We also found no instance of inadmissible evidence having been accepted or some material evidence having been ignored by the Courts below. The arguments mostly related to the interpretation of the provisions of Abkari Act as also the provisions of the l_ndian Penal Code (IPC).

The common feature of the arguments was that the 0 Courts below have mis-interpreted the provisions of Abkari Act and, more particularly, of Section 57A (1) (i) and (ii) as also Section 57A (2) (ii). It has been again the common feature of arguments that the Courts below have erred in convicting the accused persons for offences under those Sections as the E essential ingredients of those Sections were not proved by the prosecution as against the accused persons. It will be, therefore, proper to first examine the scope of Section 57A. However, such scope will have to be examined in the light of some other provisions of the Act as also the Statement of F Objects and Reasons and the history of the Legislation. Suffice it to say, at this. juncture, that the original nomenclature of the Act was Cochin Abkari Act, Act 1 of 1077 and Abkari Act (Travancore) 4of1073. These acts provided for the levy offees for the licences for manufacture and sale of liquor and G intoxicating drugs.

Three acts were operating, they were Cochin Abkari Act, Travancore Abkari Act and Madras Abkari Act. Since that was causing difficulty, an Ordinance came to be promulgated on 01. 05. 1967. This was replaced by a Bill and that is how Abkari Act was born. H OF KERALA 18. Section 2 (6A) of the Act defines 'arrack'. It means any potable liquor other than toddy, beer, spirits of wine, wine, Indian made spirit, foreign liquor and any medicinal preparation containing alcohol. Section 2 (8) defines 'toddy' to mean fermented or unfermented juice drawn from a coconut, palmyra, date or any other kind of palm tree. Section 2 (9) speaks about 8 the 'spirits' meaning any liquor containing alcohol and obtained by distillation. Sub-section (10) provides the definition of 'liquor' which includes spirits of wine, arrack, spirits, wine, toddy, beer and all liquid consisting of or containing alcohol.

Section 2(12) defines country liquor which means toddy or arrack while Section 2(13) defines foreign liquor which includes all liquor other than country liquor. Thus, it will be seen that 'liquor' is the broadest . concept and engulfs all the intoxicating drinks. Section 6 prohibits import of liquor or intoxicating drug being imported without permission of the Government authorized to give · permission in that behalf. Similarly, Section 7 prohibits the • export of liquor or intoxicating drug. Section 8 is an important Section which speaks for the prohibition of manufacture, import, export, transport, transit, possession, storage and sale of arrack. The contravention of this Section is punishable with 10 years' imprisonment as also with fine of not less than Rs. 1 lakh. Some other provisions relate to the various other prohibitions including the provisions for searches.

Under Section 41A, the offence under this Act are made cognizable and non-bailable, Section 55 onwards provides for penalties under the Act for various offences. Section 55 speaks about the illegal import I and is a general section which speaks about the effects of the contravention of the Act or rules or orders made thereunder relating to the import, export, manufacture of liquor tapping of toddy, drawing of toddy from any tree, construction of any distillery, brewery, winery or other manufactory in which liquor is manufactured, used, or possession of any materials, still, utensils, implements or apparatus etc. bottling of liquor for sale of liquor or any intoxicating drug. The punishment provided in this Section is 10 years' imprisonment with fine which shall not be less than Rs. 1 lakh, excepting for clauses (d) and (e), where punishment is of one year imprisonment.

This punishment has been brought in by way of an amendment by Act 16 of 1997 before which the punishment was merely two years and with fine of not less than Rs. 20,000/-. There was a gruesome liquor -B tragedy in Earnakulam district in the year 1982 resulting in loss of eye-sight and physical incapacity in case of several persons and, therefore, severe penalties were provided for those who were responsible for adulteration of liquor and its sale. These punishments were made further stringent by the Amendment Act No. 12 of 1995. In short, the stringency was introduced in order to check the sale of spurious liquor. The Statement of Objects and Reasons for Amendment Act 21 of 1984, 12 of 1995, 4 of 1996 and 16 of 1997 suggest the reasons why deterrent punishments were provided for the offence under the Act. Original Section 57 provided the punishment for . adulteration by the licenced vendor or manufacturer. A new Section was added by Amendment Act No.

21 of 1984 being Section 57A which is the most relevant section for our purpose. The Section reads as under:- · "57A. For adulteration of liquor or intoxicating drug with noxious substances, etc. -(1) whoever mixes or permits to be mixed any noxious substance or any substance which is likely to endanger human life or to cause grievous hurt to human beings, with any liquor or intoxicating drug shall, on conviction, be punishable. . (i) if, as a result of such act, grievous hurt is caused to any person, with imprisonment for a term which shall not be less than two years but which may extend to imprisonment for life, and with fine which may extend to fifty thousand rupees; . (ii) if, as a result of such act, death is caused to any person, with death or imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life, and with fine which may extend to OFKERALA.

fifty thousand rupees; ·· (iii) in any other case, with imprisonment for a term · which shall not be less than one year, but which may extend to ten years; and with fine which may extend to twenty-five thousand rupees. Explanation- for the purpose of this section and section 578 the expression 'grievous hurt' shall have the same meaning as in section 320 of the Indian Penal Code, 1860 (Central Act 45 of 1860). c (2) whoever omits to take reasonable precautions to prevent the mixing of any noxious substance or any substance which is likely to endanger human life or to cause grievo1,1s·hurt to human beings, with any liquor or .

intoxicating 'drug shall, on conviction, punishable- 0 (i) if as a result of such omission, grievous hurt is caused to any person, with imprisonment for a term which shall not be less than two years but which may extend to imprisonment for life, and with fine which may extend to fifty thousand rupees: E • (ii) if as a result of such omission, death is caused to any person, with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life, and with the fine which may extend to fifty thousand rupees; (iii) in any other case, with imprisonment for a term which shall not be less than one year but which may extend to ten years, and with fine which may extend to twenty-five thousand rupees.

G (3) whoever possesses any liquor or intoxicating drug in which any substance referred to in sub-section (1) is mixed, knowing that such substance is mixed with such liquor or intoxicating drug shall, on conviction, be H A punishable with imprisonment for a term which shall not be. less than one year but may extend to ten years, and with fine which may extend to twenty-five thousand rupees. (4) notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), no B person accused or convicted of an offence under subsection (1) or sub-section (3) shall, if in custody, be released on bail or on his own bond, unless - (a) the prosecution has been given an opportunity to c oppose the application for such release, and (b) where the prosecution opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence.

D (5) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872)- (a) where a person is prosecuted for an offence under sub section (1) or sub-section (2) the burden of proving that he has not mixed or permitted to be mixed or, E. as the case may be, omitted to take reasonable precautions to prevent the mixing of, any substance referred to in that sub-section with any liquor or intoxicating drug shall be on him; F (b) where a person is prosecuted for an offence under sub-section (3) for being in possession of any liquor or intoxicating drug in which any substance referred to in sub-section (1) is mixed, the burden of proving that he did not know that such substance was mixed with such liquor G or intoxicating drug shall be on him. " 19.

A plain reading of the Section would mean that now the offence is not limited to the licence holders, but refers to anybody who mixes or permits to be mixed any noxious H substance or any substance which is likely to endanger human life with any liquor. The Section, therefore, is extremely general. . A In addition to the mixing or permitting to be mixed, sub-section (2) brings in the dragnet of the offence, a person who omits to take reasonable precaution to prevent the mixing of any noxious substance. It is significant to note that if, as a result of such act of mixing of the liquor with noxious or dangerous substance B death is caused, the extreme penalty of death also is provided. Imprisonment provided is for a term not less than three years but which may extend to imprisonment for life as also with a fine of Rs. 50,000/-. Similar such penalties provided in subsection 2(ii) and sub-section 2(iii) are also relevant providing c for residuary cases.

Section 3 is the punishment for possession of any liquor or intoxicating drug which is mixed with noxious substance or dangerous drug knowing it to be so. Sub-section (4) prohibits the bail and the conditions for grant thereof. Subsection (5) which is the most important section, puts the burden o of proving that the accused has not mixed or permitted to be mixed or has not omitted to take reasonable precautions to prevent the mixing, is on the accused himself. Similarly, ·the burden would be on the accused to prove that while he was in possession of such liquor mixed with noxious or dangerous substance, he did not know that such substance was mixed with ·E such liquor. Section 58 speaks for the possession of illicit liquor. At this juncture, we need not go to the other offences of the Indian Penal Code like murder, attempt to murder etc. In this case, the charge is predominantly under Sections 55 (a), F (g), (h), (i) 57A and 58 of the Abkari Act. 20.

Since the burden to prove the offence which normally lies on the prosecution under the criminal jurisprudence was shifted to the accused, it was but natural that the constitutional validity of the Section came to be challenged. However, in P. N. G Krishna Lal & Ors. v. Govt. of Kera/a & Anr. reported in 1995 Suppl. (2) SCC 187, this Court proceeded to uphold the same. -While upholding the constitutional validity, the Court has in detail explained the mode of proof by prosecution and the extent of burden of proof which lies on the accused. The challenge which H was made to the validity of the Section was on the basis of the Universal Declaration of Human Rights (UDHR) and the International Convention for Civil and Political Rights (ICCPR), to which India is a member which guarantee fundamental freedom and liberty to the accused.

It was suggested that in 8 criminal jurisprudence it was settled law that it was on the prosecution to prove all the ingredients of the offence with which the accused has been charged. It was suggested that Subsection (5) relieves the prosecution of its duty to prove its case beyond reasonable doubt which is incumbent under the Code and the Evidence Act and makes the accused to disprove the prosecution case. Thereby, the substantive provisions and the burden of proof not only violate the fundamental human rights but, also fundamental rights under Articles 20(3) and 14. The provision was criticized as arbitrary, unjust and unfair and infringing upon the right to life and unjust procedure violating . the guarantee under Article 21 also. The provision was also criticized as providing unconscionable procedure.

It was further suggested that though Sections 299 and 300 of IPC make a distinction between culpable homicide and murder but the Amendment Act has done away with this salutary distinction and mere death of a person by consumption of adulterated arrack, makes the offender liable for conviction and imprisonment for life or penalty of death. It was further suggested that mere negligence in taking reasonable precaution to prevent mixing of noxious substance or any other substance with arrack or Indian made foreign liquor or intoxicating foreign·drug was made punishable with minimum sentence was harsh, unjust and excessive punishment offending Articles 14 and 21 of the Constitution of India. Section . 588 which was also challenged was severally criticized as being unfair and unjust. It was further suggested that presumption envisaged in sub-section (5) of section 57-A per se violated the fundamental rights and the Universal Declaration.

It was further criticized that mere possession of adulterated liquor without any intent to sell, to become a presumptive evidence ·to impose punishment without the prosecution proving that the person in possession was not a bona fide consumer or had its possession without animus to sell for consumption and place the burden on the accused to prove his innocence is procedure, which is unjust and oppressive violating the cardinal principles of proof of crime beyond reasonable doubt. The Section was also criticized for the excess of proportionality for imposition of sentence. Further the Section was criticized on the ground that compelling the accused to state the facts constituting offence under Section 57A by operation of sub-section (5) was opposed to mandate of Article 20 (3) amounted to and compelled him to be a witness to prove his innocence. While commenting on Article 20 (3), this Court referred to R. C. Cooper v. Union of India reported as 1970 (1) sec 248 as also Kartar Singh v.

State of Punjab [(1994) 3. SCC 569] where it was. held that freedom could not last long unless it was 0 coupled with order, freedom can never existwithout order and both freedom and order may co-exist. It was observed that liberty must be controlled in the interest of the society but the social interest must never be overbearing to justify total deprivation of individual liberty. It was then stated that liberty would not always be an absolute licence but must arm itself within the confines of law, In other words, there can be no liberty without social restraint. The Court also observed that the liberty of each citizen is borne of and must be subordinated to the liberty of the greatest number. The Court observed that common happiness is an end of the society, lest lawlessness and anarchy should tamper social wheel and harmony and powerful courses or forces would be at work to undermine social welfare and order.

The Court then observed in paragraph 24 as under: "The State has the power to prohibit trade or business which are illegal, immoral or injurious to the health and welfare of the people. No one has the right to carry on any trade or occupation or business which is inherently vicious and pernicious and is condemned by all civilized societies. Equally no one could claim entitlement to carry on any trade or business or any activities which are criminal and immoral or in any articles of goods which are obnoxious and injurious to the safety and health of general public. There is no inherent right in crime. Prohibition of trade or business of noxious or dangerous substance or goods, by law is in the interest of social welfare. " 21.

Coming to the burden of proof, the Court observed that though in civilized criminal jurisprudence the accused is presumed to be innocent unless he is found guilty and though the burden of proof always is on the prosecution to prove the offence beyond reasonable doubt yet the rule gets modulated with the march of time. The Court referred to the absolute right of the state to regulate production, transport, storage, possession and sale of liquor or intoxicating drug and held that the accused did not have the absolute right to business or trade of liquor. The Court also referred to the prohibitions regarding mixing of noxious substance with liquor or possession thereof and further held that the State possessed the right to complete control on all kinds of intoxicants. The Court found that the regulation of sale of potable liquor prevents reckless propensity for adulterating liquor to make easy gain at the cost of health and precious life of consumer.

The Court also noted the object of the Amendment Act which was to prevent recurrence of large scale deaths or grievous hurt to the consumers of adulterated liquor mixed with noxious substance. Referring to a judgment reported as Salabiaku v. Grance (1988) 13 EHRR 379, the Court observed that the national legislature would be free to strip . the Trial Court of any genuine power of assessment and · deprive the presumption of innocence of its substance, if the words 'according to law' were construed exclusively with reference to domestic law. Itwas held in that case that Article 6 (2) of the Universal Declaration of Human Rights did not refer to presumption of fact or of law provided for in the criminal law with indifference. It requires States to confine them within reasonable limits which take into account the importance of that Ct-IANDRAN@ MANICHAN@ MANIYAN v. STATE 313 s at stake and maintain the rights of the defence.

Providing A xceptions or to place partial burden on the accused was not iolative of universal declaration of human rights or even Convention on Civil or Political Rights. The Court then referred to the reported decisions in UK, Hong Kong, Malaysia, USA, Australia and Canada to find the permissible limits of burden B of proof of the accused. The Court referred to the decisions in Woolmington v. Director of Public Prosecutions, (1935) AC. 462; Mancini v. Director of Public Prosecutions, (1942) AC. 1; Reg. v. Edwards [1975] Q. B. 27; Ong Ah Chuan v. Public Prosecutor, (1981) AC. 648; Queen v. Oakes, 26 D. L. R, (4th) C 200; Ed Tumey v. State of Ohio, (71) L. Ed. 749; Morrison v. California, 78 Law. Ed. 664; United States v. Gainey, 13, Law. Ed. 2nd. p. 658; Barnes v. United States, 412 US 837; In County Court of Ulster, New York v. Samuel Allen, 442 US 140; Herman Solem v. Jerry Buckley Helm, 463 US 277; Timothy F. Leary v. U. S.

, 395 US 6, which were the foreign D ~ourt judgments to the issue of burden ofproof. The Court also . -·eferred to Sections 5, 6, 101, 105 and 106 as also to Sections ~ 13A and 114A of the Indian Evidence Act and relied on the lbservations made in Shambu Nath Mehra v. State of Ajmer, 1956] SCR 199. Further the Court also referred to C. S. D. · E 3wamy v. The State, [1960] 1 SCR 461 and commented on •he presumptions raised under the Prevention of Corruption Act. "he Court observed in para 39 as under: "39. lt is the cardinal rule of our criminal jurisprudence that F the burden in the web of proof of an offence would always lie upon the prosecution to prove all the facts constituting the ingredients beyond reasonable doubt. If there is any reasonable doubt, the accused is entitled to the benefit of the reasonable doubt. At no stage of the prosecution case, G the burden to disprove the fact would rest on the defence.

However, exceptions have been provid~d in sections 105 and 106 of the Evidence Act, as stated hereinbefore. Section 113-A of the Evidence Act raises a presumption .. as to abatement of suicide by a married woman by her H A husband or his relatives. Similarly section 114-A raises presumption of absence of consent in a rape case. Several statutes also provided evidential burden on the accused. On the general question of the burden of proof of facts within special knowledge