Chandran @ Manichan @ Maniyan vs State Of Kerala

Suresh Kumar @ Suresh ...Appellant

Versus

State of Kerala ...Respondent

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.

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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

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along 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

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the 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

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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 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.

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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

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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 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.

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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

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a 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

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accused 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 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.

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10. 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

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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 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),

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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 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

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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-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

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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

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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.

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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

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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

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

tragedy in Earnakulam district in the year 1982

resulting in loss of eye-sight and physical incapacity

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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 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

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(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

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which 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

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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. 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,

2

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 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

2

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) 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

2

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

2

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.

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

2

the 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

3

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

3

proof 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

3

menace 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

3

aforementioned judgment have been scrupulously followed

by the Courts below. Our answer to this vexed question

is in the affirmative.

24. Accused No.7

He 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

3

being 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

3

from 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

3

these 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

3

contradict 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.

3

Nos. 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

3

No.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,

4

servants 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

4

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 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

4

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 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

4

also 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 they mixed up the essence

with the spirit. He claimed that in all 60 cans were

filled up and were dispatched in three cars for

transporting to various places for sale. According to

him he came to know about the Kalluvathaukkal tragedy on

21.10.2000. On that day at about 7.30 p.m. A-7 and 15

came and slapped Vijayan for not properly mixing and A-7

then left the place telling them to destroy the

evidence. According to him, thereafter, 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. A-7 had also taken adequate care to send

away the 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.

4

32. Shri Radhakrishnan, learned Senior Counsel very

seriously argued that even if the evidence of this

witness is entirely accepted, it does not suggest that

A-7 himself mixed the methyl alcohol with the spirit

and, therefore, there could be no question of his being

booked under Section 57A of the Abkari Act. We have

already explained the real scope of Section 57A. For

being convicted under that Section, 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 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. In our opinion, even if A-7

commanded his servants to mix up, he is equally guilty

under the Section. In fact illegally 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 on the basis

of those 26 toddy shops. The High Court has rightly

referred to that part and we approve of the High Court's

4

findings in that behalf. 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 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 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

Section 57A (1) (ii).

33. PW-53 very specifically deposed that on 19.10.2000

around midnight mixing was done by A-20, 21, 22 and 23

and that methanol was brought by A-16 in the Fiat car

with secrete chambers and ethyl alcohol was brought by

PW-48, K. Sivaram in a truck to the Pandaksala godown.

There can be no doubt that PW-53 was present there and

had seen this. Shri Radhakrishnan tried to take

4

advantage of this evidence suggesting that it was A-20

to 23 who were actually mixing methanol which was

delivered by the workers of A-4 from the godown in the

very same night. From this, Shri Radhakrishnan tried to

argue that it was not actually mixed by A-7. It was

clear that this mixing took place at Pandaksala godown

owned by A-7. Shri Radhakrishnan also pointed out that

the High Court had held that the accused No.7 was liable

to be convicted for offence under Section 57A (1) (ii).

It was also pointed out by him that the High Court had

observed that he could not be convicted under Section

57A (1) (i) and (iii). In short, the contention is that

since according to the evidence of PW-53, A-7 had not

himself mixed or did not permit to be mixed noxious

substance endangering the human life with any liquor or

intoxicating drug A-7 could not be convicted for the

offence under Section 57 A 1 (ii) also.

34. The argument is clearly fallacious. We have

already pointed out that 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

Section `or permits to be mixed'. While interpreting

4

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. Of course that would be only and only if the

evidence of PW-53 along with other relevant witnesses

held to be reliable.

35. There is no reason for us to discard the testimony

of PW-53 which was read word to word before us by Shri

Radhakrishnan. We find that 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 claimed that he was

working with A-7 from March, 2000 in the godown and

before that he used to supply spirit in different places

for A-7. He gave the names of persons working in the

4

Pandaksala godown. He referred to methanol as `essence'

and pointed out that essence was added to the spirit

collected in syntax tank to make Kalapani and then it

used to be filled in the plastic vessels having capacity

of 35 litres. He pointed out that the spirit was poured

in the small syntax tanks and little toddy, water,

powder etc. were mixed and essence used to be added to

it and that substance and then it used to be filled in

the bottles. He gave graphically the details of the

operations and also deposed that apart from the 26 toddy

shops, his boss was running 75 shops without licences

and it was a small scale industry. He asserted that it

is only the things supplied by the boss which are sold

in those shops. He asserted that when the essence was

mixed in the spirit the vitality would increase. He

also described the role of Anil Kumar (A-16) who used to

bring essence and come only on certain days in month

mostly on Thursdays. He also described the Fiat car and

the secret tank and pointed out that the essence brought

therein used to be filled in plastic vessels having

capacity of 35 litres through hose and by using hand

motor and essence used to be added to the spirit in the

tank and then the concoction used to be supplied for

sale. He spoke about the night when the whole operation

took place and involved A-4, A-22 and A-21. He pointed

4

out that alcohol came in the tanker at night. The

concoction was prepared by accused Vijayan, Suresh,

Monkuttan and Rasool. Three cars came thereafter being

white Maruti Van, red Maruti car and Blue Maruti car.

After mixing, the cars were sent of. The said material

was taken to the dealers of A-7. He has also spoken as

to what happened on 21.10.2000 when accused Balachandran

and A-7 came and A-7 gave a beating to Vijayan 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 destroy the 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 Attukadavu. 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 cross-examination, 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

5

to be done there only.

36. We have seen the whole evidence very carefully.

Though he was subjected to lengthy cross-examination,

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. Most of the cross-examination was stereotyped,

limiting to the minor omissions in his statement under

Section 161 and 164 Cr.P.C. Even at the instance of the

other accused persons, nothing much has come about in

his cross-examination. In his cross-examination by A-4,

he again explained the role of Anil Kumar who brought

methanol and asserted the role played by A-4. In the

cross-examination by A-5, A-6, and A-1 also merely some

omissions were brought which were insignificant.

However, considering the whole evidence, this witness is

creditworthy.

37. Shri Radhakrishnan, however, pointed out that the

evidence of this witness is in the nature of evidence of

an accomplice and has to be red in the light of Section

5

133 and Section 114B of the Indian Evidence Act and that

he also reiterated the settled principles that an

accomplice must be tested with respect to his

reliability and if he is unreliable his evidence cannot

be the basis of the prosecution case. Learned counsel

further argued that if the witness is found reliable

then his evidence must be corroborated in material

particulars. Learned senior counsel relied on Shankar @

Gauri Shankar v. State of Tamil Nadu [1994 (4) SCC 478]

as also Rampal Pithwa Rahidas v.State of Maharashtra

(1994) Suppl. (2) SCC 73, more particularly, in

paragraphs 14 and 15 in the previous case and paragraph

9 in the latter case.

38. Shri Radhakrishnan further argued that the witness

had stated that he was in good terms with A-7 and that

he did not quarrel with A-7. This was suggested as a

strange conduct. He also pointed out that the witness

had stated that he had acted under the instructions of

his boss. It is seen from the evidence that he was a

minion of his boss i.e. A-7 and he answered that he gave

all the answers to the police as per the instructions

given to him by A-7 there is nothing unnatural in it.

He was a very small fry as compared to a mighty

businessman like A-7 and it was suggested by Shri

5

Radhakrishnan that his evidence did suggest that his

behaviour was strange. Shri Radhakrishnan insisted that

this witness was insisting that he had good relations

with A-7 and yet he deposed against A-7 and this,

amounted to strange behaviour. Under the peculiar

circumstances of this case considering the position of

this witness vis-`-vis A-7, we do not think that this

amounts to a very strange behaviour on account of which

this witness should be stamped with as an unreliable

witness. Shri Radhakrishnan pointed out that PW-53 was

under the tutelage of the police from 20th November and

was tutored by the police. His Section 164 statement

seems to have been recorded on 15th January and Section

161 statement was prior to that. Shri Radhakrishnan

pointed out that both his statements were clubbed

together and there he himself admitted having committed

the offence under the Abkari Act. Shri Radhakrishanam,

therefore, argued that the police should have arrested

him but the police neither arrested him nor included him

in the array of accused. Instead the prosecution

planted him as a prosecution witness. In that the

learned counsel further argued that the prosecution did

not also resort to the procedure under section 306 for

claiming pardon for the witness nor did not prosecution

join him later on as an accused under section 319 of the

5 Cr.P.C. The learned counsel further argued that the

police were very soft towards PW-53 who was an accused

in two Abkari cases. He was also immediately granted

bail in those cases and, therefore, the prosecution had

acted it in an unfair manner. Learned senior counsel

also suggested that PW-53 was on inimical terms towards

A-7 and, therefore, his evidence would have to be

evaluated with caution. Shri Radhakrishnan also urged

that there were number of prevarications,

inconsistencies, discrepancies, improvements and

omissions in the testimony of PW-53 which were

highlighted by the learned counsel. Ultimately it was

argued that his evidence was even not materially

corroborated.

39. Learned counsel also argued that the evidence of

PW-53 could not materially prove ingredients of offence,

namely, mixes or permits to be mixes, under section 57A

(1) (i) at Pandaksala godown. Sudheer, PW-60 was

described as a planted witness while Dennis A.(PW-61)

was said to be a chance witness. It was also argued

that at the most A-7 could have been convicted under

section 55 (a) (g) (h) (i) and 58 of the Abkari Act as

it was not proved that he had mixed or permitted to mix

methanol with ethyl alcohol for selling the same in the

5

market. Shri Radhakrishnan also argued that though the

burden of proof under Section 57A (5) was on the

accused, the prosecution has miserably failed to project

the case of Section57A (1) (i) and (ii) and the accused

has discharged his burden under Section 55 by adverting

to the evidence in the case in hand.

40. Lastly, it was pointed that there was no question

of any conspiracy and even if there was any conspiracy

all the links in the conspiracy were snapped by A-13, 14

and 48. It was pointed out that in fact it was A-17 who

had placed the order for methanol with the chemical

company and entrusted the two barrels of methanol to A-

16 to import the same to Kerala. However, A-17 stood

acquitted. So also A-12, 13, 143 and 48 who were

alleged to have brought ethyl alcohol for mixing were

also acquitted. Therefore, it was suggested that no

ethyl alcohol was brought at all and the methanol was

also not mixed much less at the instance of A-7.

41. Before we consider the other contentions which we

have referred to in the earlier paragraphs, we must

first consider the argument of Shri Radhakrishnan

regarding PW-53 being an accomplice and the so-called

unfairness on the part of prosecution in not prosecuting

him or not proceeding under section 306 Cr.P.C. The

5

learned Counsel was vociferous in further suggesting

that the evidence of this witness firstly is not

reliable as it is not corroborated in material

particulars as required under section 133 and 114 B of

the Indian Evidence Act. We have already pointed out

that his evidence was generally found to be reliable as

there is very little in his cross-examination which will

destroy his testimony or would even affect it in any

manner. In fact it was not our task, in the Supreme

Court to re-appreciate the evidence, particularly, when

both the Courts below have not only appreciated it but

have accepted the same after thoroughly discussing the

intricacies and the small little details of his

evidence. However, we have done that exercise in the

light of the contention raised that this witness was not

reliable and was not corroborated in material

particulars. In fact there are very weighty

corroborations to the evidence of this witness. We must

refer to the evidence of PW-60, Sudheer who is the

driver. He deposed that he got acquainted with A-16,

Anil Kumar and he assured him of a job. It was at his

instance that he went to Husur and he was engaged to

drive the Fiat car which was to collect some material

from there to Chirayinkeezhu. He thus, went to

Chirayankeezhu in the car having registration No. TMY

5

8746. He referred to the secret chamber in that car and

through his conversation with A-16, he also came to know

that the material that he was carrying in the secret

chamber was poison. He referred to the godown of A-7

which was 6-7 Kms. away from Atitingal Junction. He

also met A-7 and said that he used to pay the price of

the stuff and in his absence, Manikantan @ Kochani (A-4)

used to make the payment. He referred to the last

Thursday when claimed that he had brought the stuff to

Chirayinkeezhu and came to know about the liquor tragedy

on Sunday when he was in Husur. He has deposed that the

stuff which he brought on Thursday in the car was

unloaded in A-7's godown and on that day A-7's workers

were there. This evidence is in complete corroboration

of the evidence of PW-53 in whose presence the car was

brought by A-16, Anil Kumar. He described that the

stuff which was purchased used to be filled in the

secret chambers of the car and after the tragedy, he was

also told by A-16 to leave the place. The witness had

also identified A-7 and A-16 as also A-4, Kochani. He

also identified the Fiat car. It is to be noted that

when the samples were taken from this car, it was

positive for methanol. Shri Radhakrishnan also did not

contest this position. Most of his cross-examination is

irrelevant. Some irrelevant and inadmissible questions

5

were also put to him in the cross-examination in

relation to his statement to the police. It was tried

to be suggested that the stuff that he had brought in

that car was not methanol or poison. However, his

evidence on the whole establishes that he had met Anil

Kumar and was working for him. Apart from A-7, there

was cross-examination at the instance of A-17, A-16 and

A-4. There will be no question about A-17 since he has

already been acquitted. However, we do not find

anything suspicious in the evidence of this witness even

in his cross-examination of A-16 and A-4. This witness

has been believed by the Trial Court and the appellate

Court and, in our opinion, the evidence of this witness

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 K. K. Joshua,

PW-270. The description given by the Investigating

Officer, K.K. Joshua 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.

Shri Joshua has given the graphic description of all the

places where the activity of mixing used to go on. He

has also spoken about all the six vehicles found on the

5

spot and some of which were with fake registration

number. He has spoken about the search at Tabuk

Industries where a black can having capacity of 10

litres was found and on eastern side of that building

there was a platform build and near it pump sets and

hoses were also kept. He has referred to the liquid

which was collected. He has also spoken about the

synthetic tank having capacity of five thousand litres

which was kept on the platform. He has also referred to

the synthetic tank with spirit found there. He had

taken samples D-1 to D-18 which were ultimately found

with ethyl alcohol. He had also searched the toddy

godown in Ushus building which was on the southern side

of Ushus building at Pandaksala. He has also spoken

about the Pattarumadom house of A-7 at Kunthalloor where

also two underground cellars were found wherefrom also

he collected samples. He has also referred to

Chirayinkil where cans were recovered. On the whole

there are number of other corroborations to the evidence

of PW-53. The Trial Court and the appellate Court have

referred to the said corroborations and have given a

finding that his evidence was materially corroborated in

material particulars. In that view we need not take on

ourselves the task of referring to all the

corroborations. In paragraph 69 of the judgment of the

5

appellate Court, the discussion has come about the

evidence of this witness and we are satisfied by that.

The appellate Court has also discussed about the ill-

effects of methanol and has recorded a finding that the

samples taken from the place belonging to A-7, more

particularly, the syntax tanks, cans and other

equipments, it was found that there was ethyl alcohol

and methanol. We are satisfied with the findings given

by the appellate court and the Trial Court and,

therefore, we accept the evidence of this witness.

42. The argument raised was that this evidence could

not be taken into consideration and it would be

inadmissible because this witness, though was an

accomplice he was neither granted pardon under Section

306 Cr.P.C. nor was he prosecuted and the prosecution

unfairly presented him as a witness for the prosecution.

The contention is clearly incorrect in view of the

decision of this Court in Laxmipat Choraria & Ors. V.

State Of Maharashtra [AIR 1968 SC 938]. While commenting

on this aspect, Hidayatullah, J. observed in paragraph

13 that there were number of decisions in the High

Courts in which the examination of one of the suspects

as the witness was not held to be legal and accomplice

6

evidence was received subject to safeguards as

admissible evidence in the case. The Court held:

"On the side of the State many cases were cited from the High Courts in India in which the examination of one of the suspects as a witness was not held to be illegal and accomplice evidence was received subject to safeguards as admissible evidence in the case. In those cases, s. 342 of the Code and s. 5 of the Indian Oaths Act were considered and the word 'accused' as used in those sections was held to denote a person actually on trial before a court and not a person who could have been so tried. The witness was, of course, treated as an accomplice. The evidence of such an accomplice was received with necessary caution in those cases. These cases have all been mentioned in In re Kandaswami Gounder(2), and it is not necessary to refer to them in detail here. The leading cases are: Queen Emperor v.Mona Puna (3), Banu Singh v. Emperor(4), Keshav Vasudeo Kortikar v. Emperor(5 ) , Empress v. Durant(6) Akhoy Kumar Mookerjee v. Emperor(7), A. V. Joseph v. Emperor() Amdumiyan and others v. Crown(8), Galagher v. Emperor(10), and Emperor v. Har Prasad, Bhargava(11). In these cases (and several others cited and, relied upon in them) it has been consistently held that the evidence of an accomplice may be read although he could have been tried jointly with the accused. In some of these cases the evidence was re-ceived although the procedure of s. 337, Criminal Procedure Code was applicable but was not followed. It is not necessary to deal with this question any further because the consensus of opinion in India is that the competency of an accomplice is not destroyed because he could have been tried jointly with the accused but was not and was instead made to give evidence in the case. Section 5 of the Indian Oaths Act and s. 342 of the Code of Criminal Procedure do not stand in the way of such a procedure."

The Court finally observed:

"It is not necessary to deal with this question any further because the consensus of opinion in India is that the competency of an accomplice is not destroyed because he could have been tried jointly with the accused but was not and was instead made to give evidence in the case."

6 The Court has also observed in paragraph 11:

The position that emerges is this : No pardon could be tendered to Ethyl Wong because the pertinent provisions did not apply. Nor could she be prevented from making a disclosure, if she was so minded. The prosecution was not bound to prosecute her, if they thought that her evidence was necessary to break a smugglers' ring. Ethyl Wong was protected by s. 132 (proviso) of the Indian Evidence Act even if she gave evidence incriminating herself. She was a competent witness although her evidence could only be received with the caution necessary in all accomplice evidence. The expression 'criminal proceeding' in the exclusionary clause of s. 5 of the Indian Oaths Act cannot be used to widen the meaning of the word accused. The same expression is used in the proviso to S. 132 of the Indian Evidence Act and there it means a criminal trial and not investigation. The same meaning must be given to the exclusionary clause of s. 5 of the Indian Oaths Act to make it -conform to the provisions in pari materia to be found in Ss. 342, 342A of the Code and s. 132 of the Indian Evidence Act. The expression is also not rendered superfluous because if given the meaning accepted by us it limits, the operation of the exclusionary clause to criminal prosecution as opposed to investigations and civil proceedings.

It is to be noticed that although the English Criminal Evidence Act, 1898, which (omitting the immaterial words) provides that "Every person charged with an offence...... shall be a competent witness for the defence at every stage of the proceedings" was not interpreted as conferring a right on the prisoner of giving evidence on his own behalf before the grand jury or in other words, it received a limited meaning; see Queen v. Rhodes (1899) 1 QB 77."

This case would bring about the legal position that 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. The contention of Shri

6

Radha Krishnnan that his evidence would be inadmissible

because he was not granted pardon or he was not made

accused would, thus, be of no consequence and is

rejected. In this backdrop, after considering the whole

material and the findings of the Trial Court and the

appellate Court, we have no hesitation to hold that the

Trial Court and the appellate Court were right in

convicting A-7.

43. At this juncture itself we must also refer to the

Trial Court's judgment which has painstakingly dealt

with the huge evidence led on behalf of the prosecution

against all the accused. We appreciate the efforts and

the interest shown by the Trial Court in carefully

analyzing and appreciating the evidence of as many as

271 witnesses as also 1105 documents and 291 material

objects. Apart from the evidence of investigation

witness from the police department, several injured

witnessed were examined who were injured on account of

drinking of the illicit liquor prepared and sold through

agencies of A-7. The other batch of the witnesses are

the attesting witnesses to the mahazars, the inventories

and officers of the telephone department who were

examined to prove the telephone calls made from various

telephones to the accused as also the accused persons

6

using the mobile phones. Officers of the mobile

companies were also examined. PWs-197 to 203, 216 and

218 were doctors who conducted the autopsy of the 31

unfortunate men who died because of consumption of

spurious liquor. Other doctors who treated the patients

and the doctors who issued the injury certificates were

also examined. We must mention PWs-233 and 253 who were

the expert from forensic science laboratory,

Thiruvananthapuram. Original accused No.27 turned

approver and was examined as PW-173. Apart from these

persons, S. Anil Kumar (PW-251), M. Madhu (PW-257),

Pramod Kumar (PW-260) and PWs-263 to 278 were members of

the special investigating team. As has already been

stated, 1101 documents were proved including the

mahazars, investigation papers like inquest reports,

seizure mahazars, account books, building tax assessment

registers, room rent registers, medical certificates,

chemical analysis reports etc. We must appreciate the

Herculean effort on the part of the investigating agency

for collecting the evidence as also the efforts shown by

the Sessions Judge. Amongst the material objects which

came before the Court and were observed and commented

upon by it include the pouch filling machine, vessels,

synthetic cans, plastic cans, bottles etc. The Trial

Court returned the finding that firstly it was

6

established by the prosecution that the deaths injuries

of the victims were caused because of consumption of

spurious liquor with methyl alcohol. The Trial Court

further recorded a finding that number of the accused

persons sold the same. The Sessions Judge has dealt

with the deaths of all the 31 persons and on the basis

of the inquest report as also the evidence of other

witnesses came to the conclusion that all these deaths

were caused due to the drinking of illicit liquor mixed

with methyl alcohol. The medical certificates as also

the post-mortem reports have been meticulously dealt

with para-wise with the evidence of the witness proving

such certificates as also the evidence of the doctors.

The Sessions Judge then went on to appreciate the

evidence of the relatives of those persons who lost

their lives. The prosecution examined about 33

witnesses on this question. The Sessions Judge went on

to accept the evidence of all these witnesses regarding

the reason of the death of their kith and kin. On the

question of S.32, Evidence Act the Trial court has

relied upon the judgment of this Court in Rattan Singh

v. State of Himachal Pradesh [1997 (4) SCC 161] as also

Smt. Laxmi v. Om Prakash [AIR 2001 SC 2383]. The

Sessions Judge also discussed the evidence of the few of

those witnesses who had actually consumed the spurious

6

liquor and suffered injuries because of that. All these

witnesses, number of which is substantial, deposed about

the ill-effects felt after drinking from the shops where

liquor provided by A-7 and carried by the other accused

persons like A-4, A-8, A-25 and A-30, used to be sold.

On the basis of these witnesses and also on the basis of

the doctors who conducted the post-mortem, the Trial

Court had no difficulty to arrive at the conclusion that

injuries suffered by persons including the accused as

also the deaths were occasioned because of the drinking

of the spurious and illicit liquor. The Sessions Judge

ultimately gave a finding that it is only after drinking

the illicit liquor that the concerned persons developed

symptoms characteristics of methanol poisoning.

44. The Sessions judge went on to discuss the evidence

regarding the conspiracy of A-7 with the other accused

persons. For ascertaining the role of A-7, the Sessions

Judge then referred to the evidence of A. Mohan (PW-

127), Deputy Director of Income Tax (Investigation) as

also the sworn statements of A-7 to A-15 recorded on

14.10.1999 under Section 131 of the Income Tax Act. The

Sessions Judge on the basis of all this voluminous

evidence recorded the finding on the way the business of

A-7 was being managed. His examination and the replies

6

given to the various questions were also considered by

the Sessions Judge wherein he admitted about liquor

business and his dealing with the Income Tax Department

as also the accounts, the huge profits that he made from

this business. He also accepted that his two brothers

Sunil Dutt and Murleedharan were his partners and that

the accounts were written by Balachandran (A-15). It

was an admitted position that A-7 was in this business

right from 1984 to 1991 which he continued for seven

years and thereby started again in 1997-1998 and that A-

7 conducted 16 shops and his brothers conducted 10

shops. After dealing with the evidence regarding the

accounts as also the various statements made in the

income tax enquiries, the Trial Court went on to

appreciate the other material regarding the purchase of

shops. The Sessions Judge has then given the complete

finding regarding the business of A-7 and the other

accused. These accounts very significantly include the

monies paid to the police officers of various ranks as

also the excise officers and including. All this was

indicated in the accounts in the code language. The

internal arrangements of the business with other accused

persons were also discussed and also the financial

aspects. He has also discussed about he incriminating

circumstances. Accused No.7 had employed 33 salesmen

6

and 18 toddy tapers who were members of the Union.

According to the Sessions Judge these employees used to

keep away from the business and would only receive

salary and allowances. All the toddy collected used to

be kept in the godowns of A-7 which were raided by the

police officers. The Session Judge then in paragraph

220 of his judgment has recorded a finding on the basis

of the documents and the accounts that A-7 had

meticulously managed his toddy business which was of

huge magnitude. The Sessions Judge also recorded a

finding that A-7 made huge profits of over 9.5 crores

within a span of four months. By doing the toddy

business alone he could not have earned even 1 per cent

of the bid amount of Rs.4 crores. The Sessions Judge

then dealt with the properties including the godowns

which were raided and from where samples were collected.

We have discussed regarding the properties in the

earlier part of the judgment and so we need not repeat

the same.

45. The Sessions Judge as also referred to the material

objects found in some of these properties and has also

referred to the fact that methanol was detected in the

vehicles found parked in this plot. Accused No.7 was

also found to be frequent purchaser of polythene pouches

6

from the evidence of K.S. Harish Kumar (PW-264), C.G.

Perera (PW-78) and Exhibit P-83 of mahazar. Similar is

the evidence of Peter Jacob (PW-81) referred by the

Sessions Judge. The Sessions Judge then referred to the

incriminating articles seized from the very premises

occupied by A-7 analysis of which gave indication of

nature of his business. These premises include

Sreekrishna Tabuk Industries. After referring to various

sections, the Trial Court traced the role of A-7 and

other accused persons like A-4. His vehicles were found

to be fitted with additional spring leaves and it was

obvious that they were being used for carrying spurious

liquor. The Sessions Judge also recorded Exhibit P-855

and 859 which were search lists and Exhibit P-860 which

is the mahazar prepared by him in this regard. Some of

the items seized by this search list showed traces of

methyl alcohol. Exhibit P-861 was relied upon for this.

The Sessions Judge refuted the contention raised by the

counsel of A-7 that considering the scientific

properties of methyl alcohol it was impossible for them

to find the trace in some of the vehicles or in the cans

etc. as they would have evaporated. For this, the

Sessions Judge relied on evidence of PW-233, Sindhu,

Assistant Director of Forensic Science Laboratory who

had collected the trace evidence. Her assertion that

6

methyl alcohol could be traced even after ten days could

not be shaken and was rightly accepted by the Sessions

Judge. Her evidence that methyl alcohol was found in

the three chambers fitted in the car bearing

registration No. TMY 8748 cannot be assailed on any

count. From all this voluminous evidence ultimately the

Sessions Judge came to the conclusion that A-4, A-8, A-

25, 30, and others were the close associates of accused

No.7 and were also involved in the illicit manufacture

and transport of arrack. The sessions Judge also held

that some accused were involved in manufacture of the

illicit arrack. We have carefully gone through the

evidence referred to by the Sessions Judge and endorse

his judgment.

46. We have deliberately referred to the judgment in

details as one of the arguments by Shri Radhakrishnan

against the High Court's judgment was that the High

Court has dealt with the whole matter in a perfunctory

manner and that it has not considered the findings by

the Trial Court nor has the High Court dealt with the

main objections raised in their defence. We are

satisfied with the judgment of the Trial Court insofar

as this accused is concerned and the High Court has

7

rightly confirmed the same. We accordingly dismiss the

appeal filed by A-7.

47. We shall now consider the appeal filed by accused

No.8, Vinod Kumar. He has been convicted for offences

under Sections 324, 326 and 328 of the Indian Penal Code

as also for the offence under section 57 A (1) (ii) of

the Abkari Act and has been sentenced to undergo life

imprisonment along with the fine of Rs.50,000/-. Has

also been separately convicted under Section 57A (1) (i)

as also under Section 55 (a) (i) and Section 58 of the

Abkari Act. His conviction insofar as offences under

Sections 302 and 57A (1) (iii) are concerned, the High

Court has set aside the same. There is a specific

finding in respect of his conviction under Section 120B

IPC. The main evidence relied upon by the Courts below

against this accused is PW-257, Mr. M. Madhu who

conducted search being search mahajar Exhibit P.135. It

is the contention of the prosecution that a search was

conducted of a house which was under construction at

that time and it belonged to A-8. It is claimed that

plastic cans MO-32 and MO-39 to 43 vehicles were found

in the premises. Exhibit P-782 which is the chemical

analysis report suggests that traces of methyl alcohol

and ethyl alcohol were detected in the cans as also in

7

the samples taken from floor of the vehicles found

parked in the said premises. The prosecution has come

out with a case that since his house was being

constructed, A-8 took a house in front of this house,

namely, Roshini on rent. This house was also searched

and Exhibit P-111 was executed whereby a mono block pump

set and a telephone bill was recovered. Fake number

plates being MOs 83 to 86 were seized from the premises

under Exhibit P-191. Some of these number plates

related to some of the vehicles recovered from the

premises i.e. the plot where the house was being

constructed. Exhibit P-135 is the search mahazar and

report relied on in this regard.

48. It is to be understood that A-8 is the real brother

of A-7 and it is the contention of the prosecution that

A-8 was fully involved in the said business of illicit

liquor which was headed by his brother, A-7. The High

Court in paragraph 81 of its judgment has held that the

evidence adduced by the prosecution sufficiently

established his complicity in the crime. The High Court

has also relied on Section 58 A (5) of the Abkari Act

which casts a burden on the accused to prove that he had

not mixed or permitted to be mixed any noxious substance

with the liquor. According to the High Court such

7

burden has not been discharged. It was tried to be

argued by Senior counsel Shri V. Giri that there is no

veracity to the evidence relating to the presence of

methyl alcohol in the floors of the cars or in the

material objects found in the search on 30.10.2000.

Shri Giri further strenuously asserted that even if

Exhibit P-135 and the testimony of PW-257 and PW-253 are

accepted still the accused could not have been booked

for offence under section 57 A (1) (ii) of the Abkari

Act. He suggested that there is no evidence to show

that the accused had either mixed or permitted to be

mixed any noxious substance. The learned Senior counsel

also argued that the accused must himself know that

whatever is being mixed with the liquor is itself a

noxious substance which has the potential of endangering

the human life and it is only when he mixes it in spite

of the said knowledge then alone the offence under

section 57A(1) (ii) could be established. The learned

counsel was at pains to argue that there is nothing to

prove that A-8 had any such idea that methanol is a

noxious substance. The learned counsel then pointed out

that there is no direct witness to depose about the

steps taken by this accused for mixing methyl alcohol

with ethyl alcohol or as the case may be toddy for

making Kalapani. The learned counsel further argued

7

that the evidence of PW-53 is of no consequence as it

does not suggest that A-8 was aware of the mixing for

noxious substance like methyl alcohol. He, therefore,

urged that there is no evidence even remotely to connect

A-8 with the mixing of noxious substance. Relying on

the language of Section 57 A(1) (ii) it is the argument

that it is only where the accused is a licencee under

the Abkari Act and if any noxious substance is detected

from any sample taken from any of the outlets operated

by him then alone the burden of proving that he had

neither mixed nor permitted to be mixed will be that of

the accused. However, in the case like the present

one there would have to be positive evidence to connect

the accused with the actual act of mixing. According to

the learned counsel, merely because methyl alcohol was

detected from the traces of evidence collected from the

cans and the cars which was seized on 30.10.2000 that by

itself could not be sufficient to attract Section 58A(1)

(ii). It could only indicate the involvement of the

accused in transportation of the noxious substance mixed

with ethyl alcohol. Learned counsel further contended

that the evidence regarding the telephone calls having

been made from the said number to the house or other

places belonging to or under the control of A-7 which

the prosecution sought to prove by producing a telephone

7

bill in the name of Shyamala Kumari was also of no

consequence. The learned counsel argued that being the

younger brother of A-7 there is nothing wrong if he made

calls. The learned counsel further argued that the

prosecution has relied on the fact that the number

plates were recovered from a shed situated near

Pandaksala godown actually belonged to some of the

vehicles which were found in the house under

construction belonging to A-8. It has been held by the

Courts below that the fact that loose unattached number

plates were actually recovered from the godown and a

shed under the control of A-7 would show that A-8 was an

active participant in the business conducted by A-7 and

that he should, therefore, be treated as part of the

conspiracy allegedly hatched by A-7. However, the

learned counsel pointed out that firstly, the disclosure

statement is inadmissible and secondly, the said

discovery was extremely unnatural and artificial. The

counsel pointed out that even if the said recovery is to

the accepted it would be of no consequence insofar as

the offence under Section 57A (1) (ii) is concerned. At

the most, it would show that A-8 was a participant in

the business and for that A-8 could be booked for the

offence under Section 55. However, it will be totally

insufficient for booking him for the offence under

7

section 57 A (1) (ii).

Lastly, the learned counsel argued that there is no

clear finding for the complicity under Section 120B,

Indian Penal Code. According to the learned senior

counsel the gist of crime though alleged has not been

proved at all and even if it is presumed that accused

knew that methyl alcohol was being imported, it will be

too much to presume that he knew about the mixing of the

same with alcohol. The learned counsel argued that the

agreement for the conspiracy, as the case may be, has

not been proved at all and merely because there is a

burden on the accused under Section 57A (5), that cannot

be used for proving offence under section 120B, IPC.

The counsel then made extensive comments on the law laid

down in P.N. Krishna Lal v. Govt. of Kerala [1995

suppl.(2) SCC 187]. His whole stress was on paragraph

39 as also paragraph 46. The learned counsel pointed

out that a strictly literal interpretation of the rule

was not possible because it would virtually dispense

with any burden on the prosecution to prove the offence.

Leaned counsel argued that the initial burden of proving

always would lie on the prosecution which should suggest

the involvement of the accused in mixing of the noxious

7

substance. It is only then that it will be the burden

of the accused to prove otherwise.

49. We shall now consider all these contentions in the

light of the findings by the Trial Court and the

appellate Court. We have already considered the nature

of burden of proof on the prosecution as also on the

defence in the earlier part of the judgment while

considering the case of A-7. The question of said

burden has been discussed thoroughly in Krishna Lal's

case (cited supra). There can be no dispute that 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. Now here in the

present case, the accused is the real brother of A-7 and

there are number of other circumstances to suggest that

he was actively engaged in the business. The High Court

as also the Trial Court thoroughly discussed and

considered the evidence and all the circumstances

therein. In fact in the light of these concurrent

findings, we need not discuss the whole evidence.

7

However, it is clear from the evidence of discovery

regarding the fake number plates that accused No.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 by Shri Giri

that he may at the most be booked for transporting the

spurious liquor is also not correct 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. In

paragraph 80, the High Court thoroughly discussed about

vehicle PYO1 M 2464 which was sold by PW-68, S.

Vasudevan and was found in the possession of this

accused. The High Court has also discussed about the

transaction of his house, namely, Roshini which was in

front of the half built house where obnoxious liquor

7

trade was going on. He had also taken a good care to

un-authorizedly obtain the telephone number 620069 from

Shyamala Kumari, PW-73. It has referred to the evidence

of PW-260, Pramod Kumar who had proved the recovery

mahazar Exhibit P-191. The evidence of PW-68, S.

Vasudevan was also referred to by him. He also urged

that the house did not belong to A-8. We have already

referred to the circumstance that A-8 had taken a house

right in front 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.

We, therefore, find no reason to discard the evidence of

this discovery.

50. As if this was not sufficient according to PW-49,

S. Shiju, who was the driver of A-8, liquor would be

brought from the house of A-7 in the maruti car to be

carried to the places such as Adoor, Ezhukone and

Pathanapuram. It is this witness who established the

nexus of A-8 with the two cars PY01 M 2464 and PY01 N

1014, MOs 41 and 43, respectively. Therefore, it is

obvious that this accused was engaged in the business of

manufacture, storing, sale and supply of illicit liquor

along with A-7 which resulted in liquor tragedy. It is

obvious that this accused was well aware of the nature

7

of the business as he was thoroughly into it.

Therefore, the offence under section 57A (1) (i) and

(ii) as also the other offences under Sections 324, 326

and 328 read with Section 34, IPC have been rightly held

proved against him. We are not impressed with the

argument of Shri Giri that the discovery was unnatural

and was farcical since both the Courts have 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 actively involved in the business. As

we have already shown from our earlier discussion that

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 been booked

by us on the same logic. Again we are not prepared to

accept the argument of Shri Giri that A-8 had no idea

that methanol 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 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 120B, IPC and also

8

independently of the offence under Section 57 A (1) (ii)

as he was not only the part of the business but had

actively taken part in it. That 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'. We accordingly, confirm his conviction.

51. Shri Giri suggested that the chemical analyzer

report was not put to the accused and took us through

the examination of the accused. In fact vide the

question numbers 51, 63, 131, 141,143, 219, 220, 221,

224, 263, 691, 692, 706 and 709 and, more particularly,

question No.624 all circumstances regarding

incriminating circumstances have been put to this

witness. Therefore, this argument of Shri Giri has to

be rejected.

52. Lastly, Shri Giri also argued about the sentence

and contended that at the most this accused could be

booked for the offence under section 55 (g) and (h).

There can be no doubt that he can be booked for those

offences, however, in our opinion, the Trial Court and

the appellate Court have not committed any illegality in

booking him under section 57A (1) (ii) also.

8

Considering the number of deaths caused on account of

the business in which this accused was neck deep, we do

not think that any leniency can be shown. We

accordingly dismiss the appeal of A-8.

53. This takes us to the case of A-4, who is another

brother of A-7 and A-8. In fact the part played by A-4,

Manikantan @ Kochani is not less than the part played by

A-8, if not more. His connection with the business and

A-7 is deposed by A. Raju (PW-40), an auto rickshaw

driver who had seen A-4 coming out of the house of A-1

in a red maruti car. His business connections have been

deposed to by M.M. Ibrahim (PW-65) and it is proved from

the evidence of PW-37 that he also arranged for the

finance of Rs. 30 lakhs at the instance of A-1. He was

also identified by S. Dharmapalan (PW-36) as a person

going to the house of A-1 with spirit in car. It is

very important to note here that appeal by A-1 has

abated on account of her death. It was A-1, who was the

retail distributor of liquor. Allegedly her shop was

for sale of toddy but it has come in evidence that

liquor used to be supplied from her house. Few injured

witnesses have been examined who were the customers of

liquor saying that on the fateful day the liquor tested

a little different. PW-53 in his evidence specifically

8

involved this accused suggesting that the methanol was

first brought in the plastic vessels and then mixed with

spirit kept in the tank and thereafter it was supplied

for sale. He specifically stated that this was done

under the leadership of A-4 along with few others. He

has specifically deposed that on the fateful day, MO24

car came to the godown of A-7 between 10 to 11 O'clock

in the morning and that was being driven by Anil Kumar

A-16. He further deposed that the essence i.e. methanol

was filled in 10 plastic vessels and they were kept

inside the godown. At that time, probably ethyl alcohol

had not come and it was told to them that spirit load

would come. He further deposed that the tanker of ethyl

alcohol came at about 11 O' clock in the night, the

driver of which was Shakthi from Tamil Nadu. It was

then mixed by the workers of A-4 with the ethyl alcohol.

He then suggested that the liquor was then dispatched in

three vehicles to the dealers at Attukadavu and

Pulimuttukadavu. Even after the tragedy happened, he

deposed about the operations to destroy the spurious

liquor. In the cross examination at the instance of

this accused, beyond putting an innocuous suggestion

that he was telling lies, there was nothing much. The

accused was tried to be painted as the chief link of

Kayamkulam lobby to which he specifically answered that

8

it was Anil Kumar who used to do the same. This accused

was also involved by V. Harikumar (PW-167) who also knew

this accused along with four other accused persons who

were the driver of A-4. According to this witness, they

used to purchase flowers to put in their cars. S.

Vasudeven (PW-68) who is the vehicle broker also

recognized A-4, A-7 and A-8 and deposed that he had

effected sale of the car to A-8 and arranged two cars

for the manager of A-7. However, the money for all this

was provided by A-4. The High Court has also referred

to the evidence of T. Shyjan (PW-173) an accomplice to

show the involvement of A-4. Even Usha (PW-62) spoke

about the adjacent building being rented out in the name

of A-4. The search list Exhibit P-112 which was proved

and produced by PW-270, various articles were seized and

samples collected showed the ethyl alcohol and methyl

alcohol which fact got proved by Exhibit P-782. These

objects were MO-26 four blue cans and MO-27, 12 white

cans. He along with his brother raised loans from

Chirayinkil Service Cooperative Society, obviously for

running the business along with A-7. He stood as a

guarantor for A-7. Exhibits P-74 (d) (e) (f) (g) (h)

were proved for that purpose. The High Court has

discussed about his house properties from where number

of cans were seized. It has also come in the evidence

8

that the samples collected from the floor of these

buildings showed the presence of methanol. Thus, 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.

It was argued by Shri Dave that the case against this

appellant stands on the same footing as A-5 and A-11

and, therefore, he deserved to be given the same

punishment. We do not agree. 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 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. We do not accept the argument of Shri Dave

that his case was comparable to that of A-5 and such a

contention has rightly not been accepted by the trial

8

and the appellate Court. 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. Shri Dave tried to dub the evidence of PW-53

as a general evidence which argument does not impress

us. We have already commented upon the evidence of PW-

53.

54. Shri Dave then dubbed Section 57A as a draconian

piece of legislation. Relying on the language of the

whole section, Shri Dave contended like the other

learned counsels that the act of mixing the noxious

substance has to be proved for being punished under

this section. We have already commented upon the real

import of Section 57A of the Abkari Act. The language

of Section 57 A (1) is wide enough as we have already

commented in the earlier part of the judgment and A-4

will fit in the broad language. Shri Dave argued that

the section does not use the word `knowledge' or

`knowingly'. He also argued that mens rea to be read in

all the offences unless the legislature has expressly or

by necessary implications excluded mens rea as the

ingredient of offence. Reading the language of Section

8

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 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 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. 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. As many as 7 reported decisions were relied

upon by Shri Dave for the question of mens rea. We have

nothing against the principles laid down thereunder but

we must point out that in none of the seven cases relied

upon by the learned counsel the case related to an

offence like Section 57 A (1). The whole discussion on

mens rea, therefore, is of no consequence. The

following cases were relied on:

8

1) Lim Chin Aik v. Reginam [1963] 1 All ER 223

2) State of Maharashtra v. Mayer Hans George, 1965 (1) SCR 123

3) Sweet v. Parsley [1969] 1 All Er 347

4) State of Gujarat v. Acharya D. Pandey & Ors. (1970) 3 SCC 183

5) Sanjay Dutt v. State Through CBI (1994) 5 SCC 410

6) Kalpnath Rai v. State (through CBI) (1997) 8 SCC 732

7) B (a minor) v. Director of Public Prosecutions [2000] 1 All 833

55. 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

they mixed or allowed to be mixed methanol and used it

so freely that ultimately 31 persons lost their lives.

We are not at all impressed by the argument regarding

knowledge. Shri Dave also referred to the case of P.N.

Krishna Lal (cited supra). The argument was that if

Section 57A (v) is to be worked out in its literal

manner then it is the defence which would lead the

evidence of disproving. The argument is clearly

incorrect. We have already explained the responsibility

on the prosecution in the earlier part of the judgment.

8

In our view, in this case 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 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 regularly mixed with liquor. They

have 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

lost their lives and number of others suffered grievous

injuries. We reject the argument of Shri Dave that the

initial burden was not proved by the prosecution which

we confirm the finding of conviction and sentence as

imposed against A-4. We accordingly dismiss the

appeal filed by A-4.

8

56. This takes us to the SLP (Crl.) 842 of 2006 of A-25

represented by senior Counsel Shri Shekhar in which we

have granted leave to appeal. The argument of learned

senior counsel was almost on the same lines with that of

Shri Dave and Shri Giri insofar as the contentions

regarding the burden of proof and the interpretation of

Section 57 A (1) were concerned. It is well proved by

the prosecution that this A-25 was a major link used to

purchase liquor from A-4 and he was the one to used to

distribute the same. Learned counsel argued that this

accused had no control over this business and he was

merely transporting the spurious liquor and, therefore,

he should have been booked under section 57 A (1) (iii).

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 to A-21. Thus, he was getting the

readymade liquor. As per the evidence of P.

Thulaseedharan (PW-131), because of the liquor sold to

his father on 21.10.2000 at 11 pm that his father was

admitted in the hospital. Name of the father is Pachan.

In fact, as per the evidence of PW-131, he was told by

his father that he had consumed little from the liquor

entrusted to him by A-24 for sale. Thereafter, he felt

headache and abdominal pain. The prosecution suggests

9

that later on he died. As per the evidence of P. Ramu

(PW-163), his father used to drink the liquor supplied

by A-25 and he had also seen on the fateful day, his

father consuming alcohol supplied by A-25. Thus, his

father who died was himself a further supplier of the

drink, which was used to be supplied by A-25. The

liquor sold on that day tasted differently, which was

the evidence of M. Ponappan (PW-133). He had, however,

purchased the liquor from A-32. When he enquired about

the reason, he was told that it was liquor of A-7

brought through A-25. Evidence of T. Chandrasekhara

Babu (PW-146) is also to the same tune. PW-173 is

another witness who is an accomplice. He claimed to

have known A-25. He was used to be given a canister

whenever he became indebted. He used to sell 35 litres

of liquor in that canister. Thus, it is 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 him further. Obviously, this

witness used to sell the liquor supplied by A-25 at a

higher price of Rs.20/- per litre and he purchased the

liquor from A-25 twice or thrice in a week. It was for

the last time that he purchased the liquor from A-25 on

20.10.2000 as he told that he waited near Pallikkal

temple near milma booth and after 10 or 15 minutes, A-5

9

and A-25 came there in a blue Maruti Car and five

canisters of liquor were unloaded there. It was

distributed amongst A-24, A-6, A-29 and A-28. It was A-

25 who asked A-32 to destroy the balance of liquor after

the tragedy. The prosecution alleged, as the High Court

has noted, that he absconded and he was arrested from

K.S.R.T.C. Bus stand on 11.12.2000. The Trial Court

thoroughly discussed his evidence. It was contended

before the Trial Court that evidence of PW-173 could not

be accepted as he was given pardon only towards the fag

end of the case. The Trial Court and the High Court have

found nothing wrong with the grant of pardon under

Sections 306 and 307 of the Cr.P.C. The Trial Court has

correctly appreciated the legal position that evidence

of PW-173 could not be accepted unless it is

corroborated by other witnesses. A finding is recorded

that the evidence of PW-173 was corroborated by PWs-131,

133 and 163 insofar as the role played by A-25 is

concerned. Thus, 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

9

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. It was urged by the learned counsel appearing

that there was no evidence on record to suggest that A-

25 had anything to do with the mixing of the methylene

with the liquor. It was suggested that he had no

control over the operation and he was a mere distributor

and sold the liquor as he received from A-4. There is

no doubt that this accused was acquitted of the offence

under Section 120B, 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. Shri

V.Shekhar, learned senior counsel contended that since

this witness was not a conspirator and had nothing to do

with the business of A-7 and was merely a distributor,

the sentence of life imprisonment is excessive. As

against this, learned senior counsel appearing on behalf

of the State contended that this accused cannot escape

the conviction under Section 57A(2). The learned senior

9

counsel urged that if this accused was selling the

liquor, then it was for him to take the reasonable

precaution to see that the liquor that he sells is not

mixed with toxic substance. There can be no dispute

that this witness had no control over the business run

by A-7 and, therefore, he was rightly acquitted for the

offence under Section 120B, IPC i.e. conspiracy.

However, it cannot be said that his conviction under

Section 57A(2) is incorrect on that count. We also find

from the evidence of P.S. John (PW-252) that there was a

search in the house of this accused on 23.10.2010 vide

Exhibit P-803 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 M.G. Manilal (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 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

9

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.

In our opinion, therefore, his conviction for offence

punishable under Section 57A(2) is justified. However,

we agree with Shri V. Shekhar, learned senior counsel,

who suggests that he should not be punished with life

imprisonment. We find that 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 that he has already undergone more than 10

years of imprisonment. The statement made by the

learned senior counsel that the accused had undergone

more than 10 years of imprisonment was not seriously

controverted. In our view, therefore, this accused

should have been dealt with not at par with A-7, A-4 and

A-8 at least insofar as the punishment is concerned.

We, therefore, deem it fit while confirming his

conviction for the other offences and the sentences

therefor to bring down the sentence from life

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imprisonment to what is undergone by him (relying on the

statement made by the learned senior counsel that the

accused has undergone more than 10 years of

imprisonment). Insofar as the punishment of fine is

concerned, we do not interfere and confirm the sentence

of fines.

57. We accordingly dismiss his appeal with the

modification in the sentence as indicated.

58. This takes us to the Criminal Appeal No. 1531 of

2005 filed by A-30. His case more or the less is

identical with Suresh (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 bearing

registration No. PT01M 8122 to the residence of A-39 and

she, in turn, sold the same to the customers. It is

ironical that A-39 herself also consumed liquor and

died, so also one Soman Pilai and several others had

sustained injuries. The evidence of PW-153 is clear

enough, who complained that the liquor was 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 a. Gopi (PW-153), he had

himself found A-30 bringing the liquor. Similar is the

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evidence of N. Prasad (PW-154) who felt uneasy after

drinking the liquor at 12 in the noon on 20.10.2000. 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. G. Raghavan Pillai (PW-164), the father

of A-39 had 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 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 the sample while Exhibit P1001 is the

chemical analysis report. One Badaruddin (PW-172) also

spoke about the role played by A-30 who purchased the

new car under hire purchase agreement. This was none

else but car bearing registration No. PT01M 8122. He

also discovered a sealing machine from the residence of

one Sukumaran (PW-181). M.O. 97 was that sealing

machine, which seizure was proved by S. Bhaskaran (PW-

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175). This accused offered himself as a defence witness

and admitted therein that the car was owned by him and

since there was default in payment of the hire purchase

installments, the car was seized by the financer. It is

found by the High Court that his house was near to

Senior Orthodox Church near to rubber plantation. He

claimed that he was made accused because of the

political enmity. 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 has not

found him guilty under Section 304 or Section 307, IPC.

Instead, the High Court has booked him for offence under

Section 57A(2)(ii), Section 55(a), (h) and (i) and

Section 58 of the Abkari Act. Ms. Malini, learned

counsel very earnestly urged 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. We reject the

contention on the same reasoning that we have given for

rejecting the similar contentions raised on behalf of A-

25. The role played by both is almost the same. We

also reject the contention raised that he could have

been booked only under Sections 55(a), (h) and (i) and

also under Section 58. The learned counsel has also

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prayed for leniency. For the same reasons that we have

given in respect of A-25, we take the same view in

respect of this accused also. The learned counsel made

a statement that this accused was also behind the bars

for more than 10 years, which contention was not

seriously disputed by Shri J.C. Gupta, learned counsel

appearing on behalf of the Government. We, therefore,

set aside his life imprisonment and bring down the

sentence to what has been undergone. We accordingly

dismiss the appeal filed by A-30 with the modification

in the sentence as indicated.

59. Before we part with this case, we must note some

very disturbing facts which have been revealed from the

voluminous evidence by the prosecution. Here was a

person who was unabashedly running his empire of

spurious liquor trade and for that purpose had purchased

politicians including the public representatives, police

officers and other officers belonging to the Excise

Department. The trade was going unabated.

Unfortunately, it is the elite of the society or the

"haves" of the society who never purchase this kind of

spurious liquor for the obvious reasons. It is only the

poor section of the society which becomes the prey of

such obnoxious trade and ultimately suffers. As many as

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31 persons have lost their lives, about 5 or more

persons have lost their eye-site forever and several

others have suffered in their health on account of the

injuries caused to them. It is only by an accident that

the mixing was not done properly on the fateful day in

the sense that the liquor mixed did prove to be fatal or

injurious. But that does not mean when it was mixed on

other day for months together that it was not injurious.

The use of methanol was a dangerous proposition. It

only shows that the human avarice could create hell in

God's own country Kerala. We are 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 so-

called 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. Though 10 years have passed,

the reverberations of this grin tragedy have not become

silent. We hope and expect that the Kerala Government

takes up this issue and takes definite steps for

overhauling the system. We are worried about the rotten

system that allowed such trade not only to continue, but

to thrive. It will be, therefore, for the

administrators and the Government to take positive

steps, firstly, to overhaul the system by weeding out

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the corrupts by punishing those who are responsible for

the whole system looking sideways. We do not know 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. We do not think that the things would come under

control unless such exercise is taken, so as to save the

poor man from such ghastly disaster.

60. Again before parting, we appreciate the assistance

that we have had from all the defence counsel as also

from Shri A. Sharan and Shri J.C. Gupta, learned Senior

Counsel, who appeared for the prosecution. We must make

a special reference to the assistance that the Court got

from Shri Mohan Raj, Assistant to the Special Public

Prosecutor before the trial Court, who, at our request,

spared his substantial time and labour for assisting

this Court. We dispose of all the appeals accordingly.

................J. [V.S. Sirpurkar]

................J.

[Cyriac Joseph]

New Delhi;

April 4, 2011

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