Full Judgement
Chandran @ Manichan @ Maniyan Vs State of Kerala
Manikantan @ Kochani Vs State of Kerala & ANR.
Manoharan Vs Kerala State Rep. Public
Vinod Kumar @ Vinod Vs State of Kerala
Suresh Kumar @ Suresh Vs State of Kerala
J U D G M E N T
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 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 (Suresh 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, Kollam by its judgment dated 16.7.2002 for various offences punishable under Sections 120B, 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 refer 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 4along with fine. All these appeals 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 5the bootleggers and in the process even lose their lives at times or suffer such injuries which 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 Police, Paripally received information that one Raghunatha Kurup of Kulathoorkonam and seven others were admitted in 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 same 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 6consolidated 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 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 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 charge-sheet was filed, accused No.48 was also added by a 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 of the 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 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 mixed with Ethyl alcohol. At times, this concoction was mixed with toddy and other essences resulting in a drink called Kalapani. The methyl alcohol used to be 8mixed 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 purchase the same. These sales were made from the regularly licensed toddy shops and from other places. There was well-oiled 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 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 name 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 for importing methyl alcohol from 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),
Vinod 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 1a secret tank and thus the poisonous 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-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 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. PY01M-6582 and TN-1-R 9283 and a Van bearing 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. with the assistance of Anil Kumar (A-5) and Shibu (A-6) and was given to Herunnesa (A-1), Rajan (A-2) and Raju @ Mathilakom Raju (A-3) in the house of A-1 and A-2 at Kalluvathukkal. It was alleged that 1accused Nos.1 and 2 and 3 diluted the spirit by adding water and sold it through their outlets 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. 10 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 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. 110.
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 01M 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 Avanavancherry 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 1District 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 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 alleged that A-44 diluted the spirit by adding water and sold it on 26.10.2000 near Apollo 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 Sections 302, 307, 326, 328, 201,120B read with Section 34 of the Indian Penal Code as also under Section 55 (a) (g) (h) and (i), 1Section 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 guilt and claimed to be tried.
14. The sessions Judge categorized the 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 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 1imprisonment 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-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, it 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 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 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, record 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 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 Indian Penal Code (IPC). The common feature of the arguments was that the 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 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 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) 4 of 1073. These acts provided for the levy of fees for the licences for manufacture and sale of liquor and 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.
18. 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 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 1years' 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 and is a general section which speaks about the effects of the contravention of the Act or rules or orders made there under 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 tragedy in Earnakulam district in the year 1982 resulting in loss of eye-sight and physical incapacity 2in 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 fifty thousand rupees; 2(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 57B the expression `grievous hurt' shall have the same meaning as in section 320 of the Indian Penal Code, 1860 (Central Act 45 of 1860).(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 grievous hurt to human beings, with any liquor or intoxicating drug shall, on conviction, punishable-(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;(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.(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 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 person accused or convicted of an offence under sub-section (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 oppose the application for such release, and 2(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.
(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, 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;(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 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 substance or any substance which is likely to endanger human life with any liquor. The Section, therefore, is extremely general. 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 death is caused, the extreme penalty of death also is provided. Imprisonment provided is for a term not less than three years but 2which may extend to imprisonment for life as also with a fine of Rs.50,000/-.
Similar such penalties provided in sub-section 2(ii) and sub-section 2(iii) are also relevant providing 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. Sub-section (5) which is the most important section, 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, 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 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), (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 2jurisprudence was shifted to the accused, it was but natural that the constitutional validity of the Section came to be challenged. However, in P.N. Krishna Lal & Ors. v. Govt. of Kerala & 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 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 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 Sub-section (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, 2unjust 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 58B 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 2person 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) SCC 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 coupled with order, freedom can never exist without 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 2liberty 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. 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 2accused 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. It was 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 is at stake and maintain 2the rights of the defence. Providing exceptions or to place partial burden on the accused was not violative 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 of proof of the accused. The Court referred to the decisions in 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 Solem v. Jerry Buckley Helm, 463 US 277; Timothy F. Leary v. U.S., 395 US 6, which were the foreign Court judgments to the issue of burden of proof. The Court also referred to Sections 5, 6, 101, 105 and 106 as also to Sections 113A and 114A of the Indian Evidence Act and relied on the observations made in Shambu Nath Mehra v. State of Ajmer, [1956] SCR 199. Further the Court also referred to C.S.D. Swamy v. The State, [1960] 1 SCR 461 and commented on the presumptions raised under the Prevention of Corruption Act. The Court observed in para 39 as under:"39.
It is the cardinal rule of our criminal jurisprudence that 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, the burden to disprove the fact would rest on the defence. However, exceptions have been provided 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 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 of the accused, this Court, in Shambu Nath Mehra v. State of Ajmer, [1956] SCR 199, laid the rule thus :-"Section 106 of the Evidence Act does not abrogate the well-established rule of criminal law that except in very exceptional classes of cases the burden that lies on the prosecution to prove its case never shifts and section 106 is not intended to relieve the prosecution of that burden. On the contrary, it seeks to meet certain exceptional cases where it is impossible, or a proportionately difficult, for the prosecution to establish facts which are especially within the knowledge of the accused and which can be proved by him without difficulty or inconvenience.
"The Court further observed in para 46:"46. It is thus settled law even under general criminal jurisprudence that sections 105 and 106 of the Evidence Act place a part of the burden of proof on the accused to prove facts which are within his knowledge when the prosecution establishes the ingredients of the offence charged, the burden shifts on to the accused to prove certain facts within his knowledge or exceptions to which he is entitled to. Based upon the language in the statute the burden of proof varies. However, the test of 3proof of preponderance of probabilities is the extended criminal jurisprudence and the burden of proof is not as heavy as on the prosecution.
Once the accused succeeds in showing, by preponderance of probabilities that there is reasonable doubt in his favour, the burden shifts again on to the prosecution to prove the case against the accused beyond reasonable doubt, if the accused has to be convicted. From this conceptual criminal jurisprudence, question emerges whether sub-section (5) placing the burden on the accused of the facts stated therein would offend Articles 20(3), 21 and 14 of the Constitution." (emphasis supplied)Further in paragraph 52, the Court observed and quoted:"52.The question of intention bears no relevance to an offence under section 57-A and equally of culpability or negligence.
It is seen that mixing or permitting to mix noxious substance or any other substance with liquor or intoxicated drug or omission to take reasonable precaution or being in possession without knowledge of its adulteration for the purpose of unjust enrichment would be without any regard for loss of precious human lives or grievous hurt. The legislature has noted the inadequacy and deficiency in the existing law to meet the menace of adulteration of liquor etc. and provided for new offences and directed with mandatory language protection of the health and precious lives of innocent consumers. While interpreting the law, the court must be cognizant to the purpose of the law and respect the legislative animation and effectuate the law for social welfare. The legislature enacted deterrent social provisions to combat the degradation of human conduct. These special provisions are to some extent harsh and are a departure from normal criminal jurisprudence. But it is not uncommon in criminal statutes. It is a special mode to tackle new situations created by human proclivity to amass wealth at the alter of human lives. So it is not right to read down the law."
22. Ultimately, in paragraph 53 the Court noted the object of the Amendment Act which was to put down the 3menace of adulteration of arrack etc. by prescribing deterrent sentences. It held that the statute cannot be struck down on hypothesized individual case. It also noted that under the Code, the accused has the opportunity before imposing sentence to adduce evidence even on sentence and has an opportunity to plead any mitigating circumstance in his favour and it would be for the trial judge to consider on the facts situation in each case the sentence to be imposed. It held that all the accused are to be treated as a class and there was reasonable nexus between the offence created and the case to be dealt with, the procedure, presumption and burden of proof placed on the accused, are not unjust, unfair or unreasonable offending Articles 21 and 14. It also held that the provisions did not violate Article 20 (3) of the Constitution and thus Sections 57A and 57B were held to be valid.
23. 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 will now, therefore, be our task to see whether the parameters fixed by this Court in the 3aforementioned judgment have been scrupulously followed by the Courts below. Our answer to this vexed question is in the affirmative.
24. Accused No.7He appears to be the boss who was running this illegal business of liquor along with his family members including accused Nos.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 shop Nos. 1 to 26 meant for selling toddy were being managed by this accused. He had the licence for running those toddy shops in Chirayinkil Range. He had obtained them in the auction using his own money. The shops were obtained in the name of his wife who was accused No.18 and also a relative being accused No.19.
This auction was held for the year 2000-01, in March, 2000. It was only at that time that he realized that he had paid Rs.4 crores which may not be possible for him to recover if he sold only toddy through these 26 outlets. The prosecution case is that, therefore, he started procuring illicit ethyl alcohol and for that purpose accused No.4 and other accused 3being A-12, A-13, and A-48 helped him. The prosecution alleged that methyl alcohol used to be purchased by A-17 outside the state of Kerala and used to be supplied to A16 who delivered it to the godown at Pandaksala bearing door No. VI/98 of Chirayinkil Panchayat. Pandaksala was, in one sense, a factory for the production of the spurious liquor as per the prosecution case. There is no dispute that Pandaksala godown was owned and controlled completely by A-7. The prosecution alleged against him that A-7 was doing the business in liquor in the name of a firm called Ushus Traders. His wife's name is Usha and her younger sister's name is Ambili and it was alleged by the prosecution that his wife's brother Raju also helped him in his business.
There was a large organization which becomes clear from the fact that his premises were raided by the Income Tax Department on 14.10.1999. PW-127, A. Mohan is the deputy Director of Income Tax who conducted the raid along with others. Sworn statements were recorded from A-7 as also the original accused No.15 on that day. Prosecution proved some documents relating to this raid vide Exhibits P-335, 336, 337 and 338. The statement of A-7 was marked as Exhibit P-339 while that of A-15 as Exhibit P-340. Statements of others were also recorded they being Exhibits P-341, 342 and 343. From these statements and 3from the documents, it became clear that a full-fledged business in illicit liquor was going on. Accounts were contained in Exhibit P-335 and P-336. A bunch of duplicate stickers was also found vide Exhibit P-338. They were of Kerala State Bewerage Corporation allegedly signed by the Excise Commissioner.
It came in light that they used to sell arrack in 150 litre cover indicated in the accounts as letters PKT or P2 while toddy used to be mixed with spirit that was indicated as Spl. The more potent brand which was by adding spirit to toddy was named as KP. The spirit which was brought, of course, illegally was indicated as SBT. Sale of arrack in retail was indicated by MN. The accounts also indicated the packets given to the salesmen for sale, illegal gratification given to excise, police, politicians in code language. The High Court has rightly held that this could not bring to light the offence under Section 57A. However, the High Court had held that this went on to suggest that there was a huge business going on in liquor and at times by mixing toddy with ethyl alcohol.
25. High Court had considered the properties owned by A-7. Shri Radhakrishnan, learned Senior counsel appearing on behalf of A-7 did not seriously dispute 3these findings. It is an admitted position that the outhouse of A-7 to the building numbered as door No.XIII/656 bearing door No.IV/1248 and a house bearing door No.XIII/655 were owned by this accused. PW-270, K.K. Joswa, conducted a search in the outhouse vide Exhibit P134 and found two tanks of 5 thousand litres capacity in the underground cellar of the North-Eastern corner of the building. These tanks were fitted with PVC pipes for the purpose of filling and emptying the same.
The sample collected from the tanks for chemical analysis showed that it was ethyl alcohol. In a raid by PW-249, Rajan John who was the Circle Inspector of Police, Kadakkavoor, broken parts of four synthetic tanks of 5 thousand capacity were found as also the tanks of one thousand litres and synthetic tank of 5 thousand litres were found and seized. They were buried in the South-Eastern portion of the building. Multi-pack machine with two keys was found concealed in the Northern-Eastern part of the building. PVC pipe connection was seen going to the property of A-7. The High Court has referred to the oral evidence and has 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. Shri Radhakrishnan did not seriously 3contradict this finding of the High Court.
26. When the factory of A-7 was searched by PW-270,K.K.Joswa on 18.11.2000 vide Exhibit P106 he detected underground cellar with 18 synthetic tanks of 5 thousand capacity each arranged in two rows of nine each containing illicit liquor. It is found that all these tanks had 48,600 of liquor. PW-71, C. Rajan was a plumber who made meticulous arrangement and pipe connection from these synthetic tanks. All this shows the huge volume of business of A-7.
27. The High court has further held that the toddy business was carried on in the building where firm Ushus Traders was operating. The toddy godown was just behind the Ushus office in building bearing No.CP III/580. The said godown was a licenced one for conducting toddy shop Nos.1 to 26 of Chirayinkil village. Two hidden tanks were found vide M.Os 63 and 64 and it is here that the liquor activities connected with business were going on. The High Court has held that the registered owners Chellamma and Sahadevan were not in the possession of premises. In this search, one tank of 5 thousand litres capacity, two tanks of 1 thousand capacity and one tank of 2 thousand capacity were seized. So also from these premises the vehicles with fake numbers, they being M.O. 3Nos. 83, 84, 85 and 86 were seized from these premises.
The High Court also referred to analysis of cotton swabs collected from this place which showed that there was methyl alcohol. Still another property of 19.5 cents shown as Arayathuruthu was also found being owned by Raju who was brother of A-18. This property was also used by A-7 to destroy the evidence by burning plastic cans and other items. Still another property in village Sarkara was used by A-7 for illicit business which was clear from the documents seized by PW-256, P.K. Kuttappan in the presence of PW-119, Asheraf. 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 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 significant that when trace evidence was collected from the vehicles seized from the areas, in some of the items methyl alcohol was detected.
28. It is not as if methyl alcohol was restricted only to the above mentioned premises. However, from the evidence of PW-256 it has come out that some plastic cans were also found in the search conducted by him in Thundathhil Purayidom which was in possession of accused 3No.7. The chemical analysis of the contents of those cans showed that methyl alcohol was detected in four items. In the toddy godown of A-7 from Vanchiyurkadavilla these vehicles were seen abandoned and from a Maruti car having registration No. PYOIN 463 methyl alcohol was detected in the samples taken. Methyl alcohol was also detected from the mini lorry bearing registration No.KL 01 843 belonging to A-7. Some other vehicles were belonging to A-4 who was none else but the brother of A-7 and in those vehicles also methyl alcohol was detected.
The High Court has noted the further argument that the detection of methyl alcohol from the trace evidence was not possible. However, it has further observed that PW-233, Sindhu, Assistant Director, Forensic Sciences very clearly deposed that even if there is evaporation, even after 10 days, it is possible to detect the absorbed molecules of a liquid. It was, therefore, clear from her evidence that the scientific evidence collected by the prosecution was rightly relied upon by the Courts below and we also find no reason to reject that evidence. Therefore, 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, 4servants and relatives. We will consider separately the evidence against A-4 and A-8 who were the brothers of A-7. However, one thing was certain that this was a huge well-oiled machinery for running the liquor business and the enormousness is mind-boggling. All this suggests that A-7 was the captain of the whole team.
29. The High Court has also commented on the evidence of PW-61, Dennis A. and PW-57, Thulasidar and has also referred to the evidence of officers of BSNL, Escotel and BPL for the use of land phones and mobile phones and conversation in between A-7 and A-4 as also the others including the servants and relatives. The High Court has then proceeded to believe the evidence that the cans which were having the illicit liquor duly mixed with methyl alcohol were removed from the godown and for this purpose has relied upon the evidence of C. Somarajan (PW-79), the cashier of the petrol pump as also the evidence of PW-76, Anfar, the auto rickshaw driver who had seen the vehicles which were used for removing the liquor.
30. 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, V. Ajith Kumar that A-7 had put the bid of Rs. 4 crores for the 26 4toddy 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 has 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.
31. The last nail in the coffin is the evidence of PW-53, Sunil. We have very carefully gone through his evidence and the High Court has also extensively dealt with his evidence. PW-53 is a close relative of A-7 and worked in the godown from March, 2000. Before that he was supplying spirit to A-7 from various places. He has graphically described in his evidence as to how the 4spirit 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 Kalapani 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 Karnataka and essence used to come on Thursdays in a white Fiat car. The Fiat car had a secrete chamber. That car was identified as M.O.-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 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 referred that he had seen M.O.-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 4also suggested that he and the other employees were 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 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 t
