Full Judgment Text
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PETITIONER:
E.K. CHANDRASENAN
Vs.
RESPONDENT:
STATE OF KERALA
DATE OF JUDGMENT17/01/1995
BENCH:
HANSARIA B.L. (J)
BENCH:
HANSARIA B.L. (J)
KULDIP SINGH (J)
CITATION:
1995 AIR 1066 1995 SCC (2) 99
JT 1995 (1) 496 1995 SCALE (1)159
ACT:
HEADNOTE:
JUDGMENT:
The Judgment of the Court was delivered by
HANSARIA, J.- Hooch tragedies have been taking heavy toll of
human lives throughout the length and breadth of the
country. This has been so for a h sufficiently long period
by now; and it could be well said that practically every
year the liquor barons, in some part or the other of this
vast country -
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Bihar is a recent example - earn easy money by ruining many
houses and making many persons destitute. Many ladies have
become widows and many children orphans.
2. Here is a case in which the festive day of Onam 1982
brought disaster to many families inasmuch as the
prosecution case is that 70 persons died after having
consumed liquor from the shops and sub-shops which were
catered by the firm named "Bee Vee Liquors" and 24 lost
eyesight permanently, not to speak of many others who became
prey to lesser injuries. The joyous day of Onam (1-9-1982)
thus became a day of disaster for hundreds of families. The
magnitude of the calamity swung police into action who,
after close of investigation, charge-sheeted 10 persons for
offences punishable under Sections 120-B, 302, 272 and 328
read with Sections 107 and 109 of the Indian Penal Code, as
well as some sections of the Kerala Abkari Act. At one
stage, the Sessions Judge at Ernakulam discharged the 4th
accused and framed charges against others excluding one
under Section 302. This was challenged before the Kerala
High Court which confirmed the discharge of the 4th accused
but directed the Sessions Judge to frame charge under
Section 302 also. In the trial which proceeded thereafter
the prosecution examined 324 witnesses and proved 433
documents. At the close of the trial, the Sessions Judge
acquitted Accused 5 to 8 and 10 of all the charges. Insofar
as Accused 1 to 3 and 9 are concerned, they were also
acquitted of the offences under Section 302 of the Penal
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Code as well as under the Abkari Act, but were convicted
under Sections 120-B and 328 as well as Sections 107, 109
and 272 read with Section 34 of the Penal Code. Various
sentences were awarded for these offences.
3. The convicted accused filed appeals before the Kerala
High Court and the State challenged the acquittal of all the
accused for the offence under Section 302 and the acquittal
of Accused 5 to 8 and 10 for all the offences. The High
Court heard all the appeals together and after a very
detailed examination of the materials on record dismissed
the appeals of Accused 1 to 3 and 9. Insofar as the State’s
appeal is concerned, the same was partly allowed by
convicting Accused 1 to 3, 9 and 10 under Section 326 read
with Sections 120-B, 107 and 109 and each of them was
sentenced to undergo rigorous imprisonment for seven years.
The 10th accused was further convicted under Sections 120-B
and 328 read with Sections 107 and 109 as well as Section
272 read with Sections 34, 107 and 109. For the offence
under Section 328, rigorous imprisonment for six years and a
fine of Rs 10,000 and for the offence under Section 272
rigorous imprisonment for six months and a fine of Rs 1000
were awarded, with the rider that the substantive terms of
imprisonment would run concurrently.
4. Accused 1 to 3 and 10 have filed these appeals with the
aid of Article 136. These appeals were earlier heard by
a Bench of Kuldip Singh and late Yogeshwar Dayal, JJ., and
after hearing them at great length the Bench felt that the
case of enhancement exists; and so, rules of enhancement
were ordered on 5-1-1994. Learned counsel for the
appellants addressed us on the question of enhancement as
well. Insofar as Accused 9 is concerned, he had
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filed SLP (Crl) No. 1190 of 1990 which was dismissed on
31-7-1990. Review petition was also dismissed on 28-8-1991.
By an order dated 10-11-1994, he was, however, noticed by us
to show cause as to why sentence awarded to him by the High
Court should not be enhanced, having noted that the maximum
sentence awarded to him was rigorous imprisonment for seven
years and all the sentences were ordered to run
concurrently. Pursuant to the notice issued to this
accused, he filed his written submission and we heard Senior
Advocate Shri Jain also on the question of his acquittal as
well, as mentioned in our notice; so also on the question
whether sentence awarded to him merits enhancement.
5. Let it first be seen whether the conviction as awarded by
the High Court is sustainable. To decide this, what we
shall have to primarily see is whether the five accused
before us had acted in concert in committing the offences
for which they have been held guilty by the High Court.
Before examining this aspect, it may be stated as the High
Court also had not convicted any of the appellants under
Section 302 of the Penal Code and as there is no appeal to
this Court against the acquittal under Section 302, we are
not addressing ourselves, as it is not open to do so, to the
question whether the appellants were guilty under Section
302. We, therefore, propose to confine our discussion to
the conviction as awarded by the High Court.
6. The licence to vend liquor being in the name of the
aforesaid firm (Bee Vee Liquors), it is apposite to mention
that in this firm, which was started on 13-3-1980, initially
Accused 2 and 10 were partners, in which partnership eight
persons including Accused 1 and 3 were inducted
subsequently. In the relevant year (1982-83) the liquor
licence had been obtained by the firm in the name of Accused
1 and 2 along with wife of the first accused. Insofar as
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Accused 9 is concerned, he is an outsider and a chemist who
had, according to the prosecution, entered into a
conspiracy, inter alia, with the aforesaid accused,
which conspiracy ultimately culminated in the
aforesaid tragedy. For the sake of completeness, it may be
pointed out that though Accused 10 withdrew from this
partnership sometime before the tragic occurrence,
there is a finding based on materials on record that he
continued his relationship with the firm.
7. The liquor having been supplied by the aforesaid firm,
the principal argument of the learned counsel appearing for
the appellants is that the aforesaid accused cannot
be held guilty of any criminal offence for the misdeed, even
if there be any, of the firm inasmuch as there cannot be any
vicarious liability in a case of the present nature. Shri
Nambiar appearing for the State has fairly stated that he is
not pressing, as he cannot, the principle of vicarious
liability to fasten the guilt on the appellants. According
to the learned counsel there is plethora of material on
record to show that the five accused named above had acted
in concert in adulterating the liquor, consumption of which
was responsible for the deaths and loss of eyesight, apart
from causing other injuries. Shri Nambiar’s submission is
that the aforesaid partners of the firm were those who were
in charge of the management and Accused 9 had entered into
conspiracy either individually
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or collectively with them; and as such, all the five accused
before us are guilty of the offences for which they have
been convicted by the High Court. This result follows,
according to Shri Nambiar, either because of the conspiracy
of the partners or because of the common intention on the
part of the partners. According to the counsel appearing
for the appellants, however, the mere fact that Accused 1,
2, 3 and 10 were in active management of the firm (which
they dispute) would not be sufficient, in the absence of any
evidence relating to conspiracy, to hold them guilty of the
offences in question.
8. Let it first be seen whether from the evidence as led
in the case the conclusion arrived at by the High Court that
the four aforesaid accused were in active management of the
firm suffers from any infirmity.
9. This aspect of the case presents no problem insofar as
Accused 1, 2 and 3 are concerned inasmuch as even licence to
vend liquor by the firm stands in the name of Accused 1 and
2 and as to Accused 3 there is enough evidence to show that
he was taking active part in the management. This question
is really relevant qua Accused 10. As regards him, the High
Court has mentioned about the following circumstances to
show that despite his withdrawal from the firm of Bee Vee
Liquors before the occurrence, he continued to take active
part in the management:
(i) operation of bank account up to 31-9-
1982 (paras 105 and 110 of the judgment);
(ii) the continued user of the jeep belonging
to this accused by the firm of Bee Vee Liquors
(para 109);
(iii) dealing with all labour problems and
service conditions of the employees of the
firm (para 111);
(iv) joint management of the firm at hand and
Vypeen Liquor, in which this accused was
admittedly taking leading part, treating them
as sister concerns (para 111);
(v) continuous money transactions between
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Bee Vee Liquors and Cochin Wines, another firm
of this accused (para 112); and
(vi) overdraft applications made by this
accused along with accused 2 on behalf Bee Vee
Liquors in May 1982 (para 114).
10. The aforesaid circumstances do not leave any manner of
doubt in our mind that Accused 10 was taking active part in
the management. The submission of Shri Sanyal that this
accused was a financier only and was looking after financial
matters cannot be accepted inasmuch as he was even taking
care of labour problems and service conditions of the
employees of the firm.
11. In the aforesaid premises, we have no hesitation in
agreeing with the conclusion arrived at by the High Court
that all the four appellants were taking active part in the
management of the firm. Shri Sanyal contends that this by
itself is not sufficient to hold this accused guilty of the
offences in question in the absence of any satisfactory
proof relating to conspiracy, as
105
observed by the High Court itself in paragraph 122 of the
judgment. The perusal of the judgment shows that after
taking this view, the High Court analysed the evidence
(direct or circumstantial) to find out whether there was
conspiracy between the parties and it ultimately concluded
in paragraph 145 that there was a conspiracy.
12.In coming to this conclusion, the High Court principally
relied on the evidence of PWs 38, 39, 42, 278 and 281. Shri
Sanyal has strenuously contended that evidence of these
witnesses does not support the conclusion arrived at by the
High Court. We shall advert to this submission later. Let
it be first stated that according to us no proof of
conspiracy as such between the four appellants was strictly
necessary inasmuch as they being partners had clear motive
to derive wrongful gain from adulteration which was
undertaken on behalf of the firm - to commit the offences.
The High Court has dealt with this aspect in paragraph 102.
The venture undertaken has been described as "huge profit
making" by the High Court and it has rightly said that
without the knowledge, consent and connivance of the persons
in the management of the firm such a venture would not have
materialised.
13.We may give some idea about the magnitude of the illegal
act which was undertaken. The brain behind this sordid
drama was Accused 9. He was doing business at Thrippunithura
under the name of "Atlas Chemicals" and was dealing in
varnish and paints. He purchased 23 barrels of methyl
alcohol from Rekha Chemicals at Bangalore under fictitious
name "Synthetic Poly Hydride Thinner". Prosecution case is
that he entered in conspiracy with other appellants on or
about 18-8-1982 for the supply of 23 barrels of methyl
alcohol to be mixed with arrack and water for distribution
to the consumers. He gave formula as per Exh. P-359. It
would be of some interest to note the contents of this
exhibit read as below:
"Item Sprt Water Arrack Total %
1 20 + 40 + 140 = 200 10%
2 25 + 50 + 125 = 200 12.5%
3 30 + 60 + 110 = 200 15%
No. 1 can usually be used daily. Taste and kick will be
alright.
No. 2 may be used only if necessary.
No. 3 may be used only if essential. Its taste has to be
tested specially. It shall not exceed 15% for any reason.
Sprt- 25 lit. In this proportion pour in a drum,
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Water- 50 lit. mix and pack after one hour. Taste,
Arrack- 125/200 lit.kick etc., will be alright."
14.Though the aforesaid exhibit speaks about "Sprt"
because of which a contention has been advanced on behalf of
the appellants that what was ultimately mixed with arrack
was spirit (to be more particular, rectified spirit), the
same is belied by the several vouchers which were seized by
the Investigating Officer, PW 324, from the office of the
firm. These vouchers contain the name of ’SP’. What was
indeed supplied was not spirit but
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methyl alcohol as would appear from the report of the
Chemical Examiner brought on record. Samples which were
sent for examination revealed that some of the barrels
contained methyl alcohol ranging from 67.83% up to 96.4%. In
the house of Accused 9, three loaded barrels were found
which contained methyl alcohol from 88.36% up to 95.5%. It
is not disputed that methyl alcohol is virtually poison.
The quantity supplied by Accused 9 was about 20,000 litres,
the price of which per litre was 50 naye paise. As per the
aforenoted formula, in total quantity of 200 litres of
liquor, spirit was to be 25 litres, water 50 litres and
arrack 125 litres as per Item 2. (The combination would be
different if the preparation was to be prepared according to
Item 1 or Item 3.) This shows the magnitude of the illegal
gain aimed at inasmuch as 50 naye paise stuff was passed on
as liquor which must have been sold at a price many times
more. The greed for huge money is thus writ large in the
abominable planning.
15.Another aspect of the case makes the criminality
apparent. The firm had lifted only 3200 litres of arrack
from 1-8-1992 up to 2-9-1982 as against the sanctioned
quantity of 5000 litres, but during this period it
distributed 19,492.05 litres through various shops and sub-
shops. The additional quantity of more than 16,000 litres
constituted either water or methyl alcohol. If the firm was
only keen to supply more arrack during the festival season
for which permission was sought, it would have at least
lifted the full quantity of arrack sanctioned to it but it
did not; instead, it went for adulteration, and that too
with such a poisonous material which ultimately resulted in
70 consumers dying, 24 losing eyesight permanently and many
others suffering minor injuries.
16.Nothing more than the above is required to hold that
the liquor barons were out to earn profit at the cost of
human lives. The magnitude of profit aimed at fully
satisfies us that there was meeting of mind insofar as the
persons in the management of the firm are concerned to
undertake the highly illegal act. As, however, the High
Court has gone into the question of conspiracy and has
relied on evidence of aforesaid PWs to conclude that there
was a conspiracy between the aforesaid persons, let the
contention of Shri Sanyal noted above be dealt with now.
17.The High Court having dealt with the evidence of these
witnesses at some length from paras 138 to 144, we do not
propose to note what these witnesses had stated. Instead,
we would deal with the criticism advanced by Shri Sanyal.
The main attack of Shri Sanyal is about omission of the name
of Accused 10 by these witnesses when they were questioned
during investigation. Not that all the witnesses had
omitted to name this accused, because PW 39, who was an
employee of a shop for 12 years, had named this accused, so
had PW 278. As regards those witnesses who had omitted to
name, the High Court has given cogent reason as to why
despite omission found in their statements as recorded by PW
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324 (the Investigating Officer) their evidence should be
accepted. Not only this the High Court has dealt with the
reasons given by the trial court for disbelieving these
witnesses and
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has adequately met the reasons. We do not propose to
traverse this ground over again as we are fully satisfied
about this part of High Court’s judgment.
18.As, however, Shri Sanyal has taken pains to highlight
the omission by someof the witnesses in naming Accused
10 during investigation, we proposeto say a few words
regarding this submission. A perusal of the judgmentof
the High Court leaves no manner of doubt that the
investigating agency had made all efforts to shield Accused
10; may be because of the political clout or any other
reason. This would be apparent front the fact that though
this accused was being shown as absconding by the police, he
was in constant touch with the police and was having
meetings with the police who advised him not to surrender
because if he did so he ran the risk of his anticipatory
bail being rejected. Not only this, the High Court has
stated in paragraph 190 that the police was giving secret
information to this accused and ultimately they went in for
a "thrilling arrest" at the cost of huge expenditure to the
State, as after giving out that this accused is absconding,
his photos were published in newspapers offering reward,
which drama ultimately ended at Delhi. It would be a
fitting finale that the last act of the judicial exercise as
regards of this accused also ends at Delhi.
19.It is because of the aforesaid that the High Court did
not feel inclined to place much reliance on the omissions,
because where the investigation is partisan and wants to
shield somebody, the statements of witnesses examined during
investigation involving the person concerned would be
manipulated. The High Court, therefore, in some cases even
perused the police diary and was satisfied that the
allegation of the omission was not correct. May we point
out that Section 172(2) of the Code of Criminal Procedure
permits any criminal court to send for police diaries and to
use them to aid it in any enquiry or trial. Much cannot,
therefore, be allowed to be made about omission of the name
of this accused in the statement of some of the aforesaid
PWs as recorded by the Investigating Officer.
20.The aforesaid is all that is required to be said to
deal with the contentions advanced by Shri Sanyal on behalf
of Accused 10 when appeal was being heard in court, In the
written submissions filed subsequently, what has been done
is primarily to reiterate the points urged in open court by
citing some decisions to support the contentions. The cases
referred relate to legal propositions as to when conviction
can be founded on circumstantial evidence, when can
vicarious liability be fastened in a criminal matter, when
can order of acquittal be set aside by an appellate court
and when can conspiracy be held as established. We do not
think it necessary to deal with the referred decisions, as
the view we have taken is based on facts before us and the
conclusions arrived at by us do not militate against any
legal proposition propounded in the decisions. May we state
that the doctrine of vicarious liability was not pressed
into service by Shri Nambiar himself; and so, we have placed
no reliance on the same to uphold the conviction of this
appellant or, for that matter, any other appellant. As to
the High Court setting aside the order of acquittal of
Accused 10, the above-noted discussion shows that it had
done so for good and cogent reasons; and what is more, it
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did so
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after apprising itself of the reasons given by the trial
court in disbelieving the witnesses in question, and it duly
met the flaws pointed out. As regards circumstantial
evidence, it is clear that those brought on record have duly
and sufficiently linked this accused with the offence in
question. The chain is complete to fasten him. As to when
conspiracy can be taken as established, it has been accepted
in the decisions relied on by Shri Sanyal, that there can
hardly be direct evidence on this, for the simple reason
that conspiracies are not hatched in open; by their very
nature they are secretly planned; and so, lack of direct
evidence relating to conspiracy by this accused has no
significance.
21. Insofar as other appellants are concerned, not much is
required to be said by us in view of the concurrent findings
of the trial court and the High Court about their
involvement. As, however, Shri Lalit appearing for Accused
1 made efforts, and sincere efforts at that, to persuade us
to disagree with the finding relating to this accused being
hand in glove with others, let us deal with the submissions
of Shri Lalit. He contends that there is nothing to show
about this accused being a conspirator inasmuch as in the
meeting which had been taken place on or about 18-8-1982
with Accused 9 this accused was not present. This is not
material because conspiracy can be proved even by
circumstantial evidence; and it is really this type of
evidence which is normally available to prove conspiracy.
The further submission of Shri Lalit is that the only work
entrusted to this accused relating to the partnership
business was to look after matters with the Government. The
financial control was with Accused 2 and 10 and all the
recoveries were made at the instance of Accused 3, states
Shri Lalit. These facts do not militate against the
conclusion arrived at by the courts below that this accused
was thick and thin with others. The High Court has summed
up its views qua him in paragraph 185 of the judgment.
Among the facts mentioned is that it was he who was one of
the bidders for 1982-83 and it was he who had applied for
permission for keeping arrack shops open till night in the
festival season from 3-8-1982 to 16-8-1982 and from 13-8-
1982 to 5-9-1982.
22. As regards Accused 2, Shri Nair refers us to the
grounds taken in Criminal Appeals Nos. 563-64 of 1990 filed
by him which are from pages 127 to 132. We have gone
through these grounds and these are on the question as to
when on the basis of circumstantial evidence a person can be
found guilty. These grounds also say that there can be no
vicarious liability in a case of the present nature.
Something has been said about the evidence of PWs 260 and
322, who had done the chemical examination. These have
nothing to do with criminality or involvement of this
accused. Qua Accused 3, Shri Anam has only urged that what
had been purchased by him was rectified spirit and not
methyl alcohol. The least said the better about this
submission, as it is wholly misconceived, which is apparent
from what we have noted above about recoveries made and
their composition as found on chemical analysis.
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23.We, therefore, conclude by stating that we find no
infirmity in the conclusion arrived at by the High Court
regarding the active participation of the four appellants in
the despicable act undertaken by them.
24.What is required to be seen further is whether the
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conviction of these appellants under Sections 326, 328 and
272 is tenable or not. So far as Section 272 is concerned,
there is no dispute because apparently there was Iteration.
The learned counsel for the appellants have taken pains to
convince us that no offence under Section 326 specially was
committed. Though some submissions had been advanced about
non-applicability of Section 328 also, it is apparent that
if we would be satisfied about applicability of Section 326,
Section 328 would apply proprio vigore.
25.According to Shri Sanyal, mischief of Section 326 would
not be attracted for two reasons. First, the appellants had
not caused any hurt ,voluntarily’. Secondly the hurt
caused, in any case, was not ’grievous’.
26.To sustain the first submission, Shri Sanyal refers us to
the definition of ’voluntarily’ as given in Section 39 of
the Penal Code which, inter alia, says that a person is said
to cause an effect voluntarily when he knew or had reason to
believe to be likely to cause it. Learned counsel contends
that the accused persons had no knowledge that the effect of
the consumption of the adulterated liquor would be so
injurious as it proved to be. This submission cannot be
accepted because the aforesaid knowledge can well be imputed
for two reasons. First, under the Kerala Abkari Act no
mixture at all with the liquor as supplied to the firm was
permissible. This legal position is not disputed before us.
In view of this, the acceptance of the formula given by A-9
in mixing ’spirit’ or water with arrack was itself an
illegal act. Secondly, in the present case what was mixed
was not ’spirit’ but, as already noted, poisonous substance,
as is methyl alcohol. The percentage of methyl found in the
liquor supplied by the firm being what was found to be, it
has to be held that the persons responsible for mixing had
the knowledge that consumption of the liquor was likely to
cause very serious adverse effects. The contention that all
the consumers were not adversely affected cannot water down
the mens rea required to bring home the guilt under Section
326.
27.The next submission of Shri Sanyal for non-applicability
of Section 326 is that the hurt caused was not grievous. To
satisfy us in this regard, our attention is invited to the
definition of "grievous hurt" as given in Section 320,
according to which the following kinds of hurt only are
designated as grievous:
First: Emasculation.
Secondly: Permanent privation of the sight of
either eye.
Thirdly: Permanent privation of the hearing
of either ear.
Fourthly: Privation of any member or joint.
Fifthly: Destruction or permanent impairing
of the powers of any
member or joint.
Sixthly: Permanent disfiguration of the head
or face.
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Seventhly: Fracture or dislocation of a bone
or tooth.
Eighthly: Any hurt which endangers life or
which causes the
sufferer to be during the space of twenty days
in severe bodily pain, or unable to follow his
ordinary pursuits.
28. Shri Sanyal urges that for a hurt to be
’grievous’ the same must be one which
endangers life. The background of making this
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submission is that the High Court took the
view that the accused had no knowledge that
the adulteration caused by them would endanger
life because of which the accused persons were
not convicted under Section 302. According to
us, the High Court was not correct in arriving
at this finding; but as there is no appeal by
the State against acquittal of the appellants
under Section 302, we would, instead of
reversing this finding of the High Court,
proceed to examine the submission of Shri
Sanyal that the brew in question did not
endanger life.
29. This submission does not stand a
moment’s scrutiny inasmuch as the requirement
of endangering life mentioned in clause
Eighthly cannot be read in other clauses. To
us, this is so apparent that we really did not
expect a submission of this nature from a
senior counsel. Shri Sanyal, however,
persisted and sought to press into service the
observation made by a Full Bench of the Bombay
High Court in Govt. of Bombay v. Abdul Wahab1.
That observation is:
"The line between culpable homicide not
amounting to murder and grievous hurt is a
very thin and subtle one. In the one case the
injuries must be such as are likely to cause
death; in the other, the injuries must be such
as endanger life......
This has to be read in the context in which it was made; and
the same was that the jury in that case had returned a
unanimous verdict of the accused not being guilty of
culpable homicide not amounting to murder, but only of
grievous hurt. A contention was advanced by the State
before the High Court that as injuries in question were such
which endangered life, the guilt of culpable homicide not
amounting to murder was brought home. As, for this offence
the injuries must be such as are "likely to cause death",
the Full Bench drew attention to the difference in between
the two. The same cannot, therefore, be read to mean that
for a hurt to be designated as ’grievous’ the same must be
such which endangers life. In the present case, as many as
24 persons having lost their eyesight permanently, the hurt
in question has to be regarded as ’grievous’ because of what
has been stated in clause Secondly of Section 320.
30. The two submissions advanced by Shri Sanyal for non-
applicability of Section 326 to the facts of the present
case being not tenable, we uphold the conviction of the five
accused before us under Section 326. This being the
position, nothing further is required to be stated regarding
the guilt under Section 328, because it cannot be urged, as
was faintly sought to be done, that the present was not a
case where the accused persons had ’caused’ liquor
1 (1945) 47 Bom LR 998, 1003: AIR 1946 Bom 38
111
to be taken by the affected persons. We have said so as it
was the liquor supplied by the firm to the shops and sub-
shops which was consumed; and so, it has to be held that the
consumers were made to take the liquor supplied by the firm.
Other requirements of Section 328 being present, the
conviction under Section 328 too was rightful.
COMPETENCY TO ISSUE THE RULE OF ENHANCEMENT
31. Having come to the conclusion that the High Court was
right in convicting the appellants under various sections of
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law noted above, it is required to be seen whether the
sentences as awarded are appropriate on the facts of the
case. When these appeals were being heard earlier, it was
felt that the sentence as awarded needs to be enhanced.
Being of this tentative view, by an order dated 5-1-1994 a
suo motu notice was issued asking to appellants for show-
cause as to why the sentence should not be enhanced.
Similar notice was issued to A-9 on 10-11-1994.
32. As a point has been taken that this Court lacked
competence to issue the notices, the same needs to be
examined first; and we propose to do so in some detail as
there does not appear to be any direct decision of this
Court on this point.
33. Shri Lalit has mainly addressed us on this aspect.
Though at one stage the learned counsel took a stand that an
appellate court seized with appeal against conviction has no
power to suo motu issue rule of enhancement under the
provisions of the new Code of Criminal Procedure, as
distinguished from the provisions which found place under
the old Code, this point was not pursued, after the
attention of the learned counsel was drawn to the judgment
rendered in Rengta Majhi v. State of Assam2 in which one of
us (Hansaria, J.) speaking for a Bench of the Gauhati High
Court held that even under the new Code of Criminal
Procedure the power for issuing a suo motu rule of
enhancement exits. That decision is based on certain
judgments of this Court noted therein. Shri Lalit conceded
that in view of what has been stated in Rengta Majhi case2,
the High Courts do have this power even under the new Code
of Criminal Procedure. Learned counsel, however, urges that
the same power would not be available to this Court as this
Court is not exercising any power conferred or available
under the Code, but under Article 136, which, according to
Shri Lalit, has conferred a limited jurisdiction and is
confined to the examination of legality or otherwise of the
judgment under appeal.
34. Shri Nambiar does not agree with this submission.
According to him the power conferred on this Court by
Article 136 is of wide amplitude and is plenary. Learned
counsel also submits that the power of an appellate court is
normally coextensive with that of the lower court; and so,
if the High Court in a case of the present nature could have
issued the rule of enhancement, such a power would be
available to this Court, when it hears appeal from the
judgment of the High Court. The final contention in this
regard is that, in any case, Article 142 of the Constitution
would be available for the purpose
2 (1988) 1 Gau LR 481
112
at hand, if this Court were to be of the view that to do
complete justice the sentence needs to be enhanced.
35. As Shri Lalit has conceded, and rightly, that despite
lack of appeal by the State relating to the quantum of the
sentence, a High Court is competent, while hearing appeal
against conviction, to issue rule of enhancement even under
the new Code, we would have thought that to deny such a
power to this Court, which is higher in hierarchy, would be
incompatible with the well-accepted judicial principle, as
normally it should be within the competence of an appellate
court to do what the subordinate court could do. We may
mention here that though Shri Lalit took the right stand
that nonfiling of appeal by the State on the question of
sentence is not material, a contention has been advanced in
the written submission filed on 22-11-1994 on behalf of A-
IO that this Court will not (meaning cannot) interfere with
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the question of sentence in the absence of appeal by the
State Government. (See page 21.) In support of this
submission reference has been made to two decisions: Satbir
v. State of Haryana3 and State of Mysore v. C.N. Vijendra
Rao4. A perusal of these decisions shows that they have not
dealt with this aspect at all.
36. The aforesaid view of ours on the question of power of
an appellate court receives some support from what was
stated by a Constitution Bench in Nagendra Nath Bora v.
Commr of Hills Division5. It was held there that the powers
which were available to appellate authorities under the
Eastern Bengal and Assam Excise Act were coextensive with
the powers of the primary authorities. In coming to this
conclusion, what was observed by another Constitution Bench
in Ebrahim Aboobakar v. Custodian General of Evacuee
Property6 was also noted. In that case this Court was
concerned with the extent of the power of the tribunal which
had been constituted to hear the appeals; and after noting
the terms of constitution of tribunal it was observed that
like all courts of appeal exercising general jurisdiction in
civil cases, the tribunal had been constituted as appellate
court in words of widest amplitude and the legislature had
not limited its jurisdiction by providing that such exercise
will depend on the existence of any particular state of
facts.
37. What was held in the aforesaid two Constitution Bench
decisions would indicate that where an appellate authority
is conferred with power, without hedging the same with any
restriction, the same has to be regarded as one of widest
amplitude and the power of such an appellate authority would
be coextensive with that of the lower authority. It is
apparent that the appellate power available to this Court
under Article 136 is not circumscribed by any limitation.
We are, therefore, inclined to think that being a court to
whom appeals lie from the judgments of the High Court, it
3 (1981) 4 SCC 508: 1981 SCC (Cri) 860
4 (1976) 1 SCC 286: 1976 SCC (L&S) 49: (1976) 2 SCR 321
5 AIR 1958 SC 398: 1958 SCR 1240
6 AIR 1952 SC 319: 1952 SCR 696
113
would have the same power which is available to a High
Court; and in exercise of such a power the rule of
enhancement could have been issued.
38. We do not, however, propose to uphold the legality of
the rule issued on the aforesaid ground inasmuch as there
can be really no dispute that the power given by Article 136
is plenary in nature. This has been the view of this Court
for about four decades by now inasmuch as such a vista was
first opened by a Constitution Bench in Durga Shankar Mehta
v. Thakur Raghuraj Singh7 by stating that power given by
Article 136 is worded in the widest terms possible and it
vests in the Supreme Court "a plenary jurisdiction" and is
in the nature of special or residuary power exercisable
outside the purview of the ordinary law in cases where the
needs of justice demand interference. Durga Shankar case7
was relied by a Division Bench in Arunachalam v. P.S.R.
Sadhanantham8 in which a doubt having been raised about the
competence of a private party, as distinguished from the
State, to invoke jurisdiction under Article 136 against a
judgment of acquittal by the High Court, it was observed
that there was no substance in the doubt inasmuch as the
appellate power vested under Article 136 is not to be
confused with ordinary appellate power exercised by
appellate courts and the same is plenary.
39. Shri Nambiar has also brought to our notice the
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Constitution Bench decision in Union Carbide Corpn. v. Union
of India9 in which it was observed in para 58 that Article
136 vests in this Court a plenary jurisdiction and the power
so conferred can be exercised in spite of the limitations
under the specific provisions for appeal contained in the
Constitution or other laws, which power could be exercised
in cases where the needs of justice demand interference.
The Constitution Bench further stated in paragraph 62 that
the plenitude of the powers of the Apex Court is intended to
be coextensive in each case with the needs of justice and to
meeting any exigency. The submission of Shri Lalit that the
power conferred by Article 136 is one of limited
jurisdiction is, therefore, untenable; it has no merit.
40. What is contained in Article 142 would in any case
provide sufficient power to this Court to pass an order like
one at hand, if this Court were to be of the view that the
same is necessary for doing complete justice. The
contention of Shri Lalit, however, is that despite what is
stated in Article 142 issuance of a suo motu rule for
enhancement would not be permissible because that would be
violative of Article 21 inasmuch as it would be unfair to
the appellant who, having come to this Court for seeking
relief, would face peril in case the sentence comes to be
enhanced after upholding the conviction. The learned
counsel urges that Article 21 would not permit this as that
would be a procedure not mandated by law. In support of
this contention, some assistance is sought to be derived
from what was stated by
7 (1955) 1 SCR 267: AIR 1954 SC 520
8 (1979) 2 SCC 297 : 1979 SCC (Cri) 454
9 (1991) 4 SCC 584
114
a seven-Judge Bench in A.R. Antulay v. R.S. Nayak1O in which
the direction given by a five-Judge Bench in its first
judgment in A.R. Antulay v. R.S. Nayak1O transferring the
cases to High Court was held to be violative of Article 21
as the larger Bench felt that because of the order in
question the appellant would be tried by a procedure not
mandated by law. What was stated by the seven-Judge Bench
has no relevance, because if a High Court can issue a rule
of enhancement, as fairly conceded by Shri Lalit, the power
of issuing rule of enhancement cannot be said to be one not
mandated by law.
41.The further submission that power to enhance the sentence
has to be specifically conferred in case of the present
nature has no legs to stand inasmuch as the Code of Criminal
Procedure has not conferred such a power on High Court when
it is seized with an appeal against conviction. This is
apparent from Section 386 of the Code, which has been
referred by Shri Lalit in this context, as the same gets
attracted when a High Court exercises its revisional power
under Section 401, which power enables a High Court, as per
Rengta Majhi2, to issue a rule of enhancement. In an appeal
from conviction, the appellate court may do any of the
following as per Section 386 (b)-
(i) reverse the finding and sentence and
acquit or discharge the accused, or order him
to be retried by a Court of competent
jurisdiction subordinate to such Appellate
Court or committed for trial, or
(ii) alter the finding, maintaining the
sentence, or
(iii) with or without altering the finding,
alter the nature or the extent, or the nature
and extent, of the sentence, but not so as to
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enhance the same.
(emphasis ours)
So, the submission that power to enhance sentence has to be
specifically conferred before such a rule can be issued
cannot be accepted.
42. This being the position, we entertain no doubt that
this Court has power in an appropriate case to issue suo
motu rule of enhancement. A contention has, however, been
advanced by Shri Lalit that this Court had denied such a
power to it in some of the decisions. Learned counsel first
refers in this context to Naresh v. State of U.P 11 and
brings to our notice what was stated in para 2. In that case
what had happened was that the High Court altered the
conviction of the appellant from under Section 302 IPC to
Section 304 (Part 1). The convicted accused appealed to
this Court, but there was no appeal by the State from
acquittal under Section 302. It was, therefore, observed in
para 2 that nothing could be done about the acquittal under
Section 302, though this Court felt greatly concerned about
the grievous error committed by the High Court. This
judgment had thus not dealt with the power of enhancement of
sentence.
10 (1988) 2 SCC 602: 1988 SCC (Cri) 372: AIR 1988 SC 1531
11 (1981) 3 SCC 74: 1981 SCC (Cri) 631 : AIR 1981 SC 1385
115
43. The next decision to be pressed in service was rendered
in Suraj Bhan v. Om Prakash12. In that case the injured
came to this Court who had approached the High Court in
revision for enhancement of the sentence. The High Court
had been approached by the accused also against his
conviction and sentence. The High Court reduced the
sentence to the period already undergone against which the
State did not prefer any appeal. The injured, however, made
an application to the High Court for a certificate which
having been refused he obtained special leave from this
Court. On these facts it was observed in para 10 that in
the absence of an appeal against the judgment of the High
Court in the criminal appeal filed by the accused that
judgment had become final and the sentence could not be
enhanced. The passing observation in para 11 that nothing
could be done as regards the sentence cannot be taken to be
a decision that power of enhancement is not available to
this Court. The judgment in State of Mysore v. C.N.
Vijendra Rao4 which is the last to be referred by Shri Lalit
to support this contention has no relevance, as it dealt
with a different point altogether.
44. If passing observation has to be borne in mind, what
was recently stated in Narayanamma (Kum) v. State of
Karnataka13 is more to the point inasmuch as it was stated
in para 6 that though the sentence of 3 years’ rigorous
imprisonment for the crime of rape was inadequate, it did
not wish to enhance the same "at this point of time".
45. On the basis of what has been stated above, we
entertain no doubt that it was within the competence of this
Court to have issued the rules of enhancement. Let it now
be examined whether the sentences as awarded merit to be
enhanced.
46. Let it now be seen whether the sentences on the
appellants merit need to be enhanced. On this aspect,
according to us, there cannot be two opinions, as the
appellants by their nefarious activity, prompted only by
lust for money, sold such a brew which contained even a
poisonous substance. And see the enormity of consequences:
70 deaths and 24 losing their eyesight permanently. What
can be more shocking to the conscience? If greed for money
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makes people so unconscionable, so unconcerned with human
happiness and makes them behave like devils and to destroy
human lives, they have to be dealt with appropriately,
sternly and with a steel heart not yielding to any plea of
softness on any ground, not relenting to discharge the
onerous duty which falls on a court in such cases. The need
to rise to the occasion becomes great and imperative when it
is noted that liquor barons have long been playing with
destinies of many with impunity for one reason or the
other, which has encouraged them to indulge in such an
activity without fear of law haunting them. This is
abundantly clear from deaths due to consumption of spurious
liquor in different parts of the country. This has become
almost a regular feature and hooch tragedy has been taking
heavy toll of human lives almost every year in one part or
the other of this vast
12 (1976) 1 SCC 886: 1976 SCC (Cri) 208
13 (1994) 5 SCC 728 : 1994 SCC (Cri) 1573
116
country. To mention about such recent tragedies, it was
Gujarat which saw this disaster in 1991 in a big way; it
fell on Cuttack in 1992 to see loss of more than 100 lives;
and very recently this tragic drama was enacted in Patna,
where too about 100 persons became victims.
47. So, retribution itself demands enhancement. Deterrence
lends further support to the demand. Let us all strive
to check such atrocious acts. We would be indeed failing
in our duty if we were not to do so. And the least we can
do in the cases at hand is to see that the maximum sentence
visualised by our law-makers is awarded to all the
appellants before us. There can hardly be more appropriate
occasion than the one at hand to award the maximum sentence.
48. So far as the A-9 is concerned, we have on record his
written submission stating that he had been released from
the Central Prison, Trivandrum on 15-6-1994 after having
undergone the whole term of punishment. He has further
stated that he being an old man aged 72 years and absolutely
deaf and being also financially very weak-, his punishment
may not be enhanced. Being not represented by any counsel,
we thought it appropriate to provide him legal aid, to which
effect we requested the Supreme Court Legal Aid Society to
appoint a counsel for him. Shri R.K. Jain, Senior Advocate
appeared accordingly. We have heard him.
49. We acquainted Shri Jain with what had been stated by us
while issuing enhancement notice and the same being that it
would be open to this accused even to urge that he is
entitled to acquittal. Shri Jain submitted that on the face
of dismissal of the special leave petition filed by this
accused, followed by dismissal of the review petition, he is
not in a position to urge that the conviction of this
accused was not justified. The learned counsel, however,
urged that keeping in view the old age of this accused and
his financially weak position, because of which even before
the trial court as well as in the High Court he was given
legal aid, we may not enhance the sentence. His deafness is
also brought to our notice.
50. We have duly considered the aforesaid submissions of
Shri Jain. As to the advanced age we would say though this
is a mitigating circumstance, there exists an aggravating
circumstance as well the same being that it was this accused
who was the prime mover, as would be apparent from the facts
noted above and as pointed out by the High Court in para 157
of the judgment. Thus the age factor has been neutralised
by the active role played by this accused in the conspiracy.
As regards financial weakness of the accused which required
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providing of legal aid in the courts below, the same cannot
be said to have in any way prejudiced him inasmuch as his
case was adequately taken care of by the other accused who
were well defended by eminent lawyers. Further, the accused
has now got assistance of Senior Counsel like Shri Jain who
is known for his legal acumen. Insofar as deafness is
concerned, that is not relevant for the purpose at hand.
51. Because of the above, we have not felt inclined to
treat this accused differently from others. Indeed,
treating him differently would result in a sort
117
of discrimination, which was one of the submissions advanced
by Shri Sanyal appearing for Accused 10. This submission
does have merit inasmuch as the role played by Accused 9 was
in no way less, really it was more, than other accused qua
whom we are satisfied that a case of enhancement has been
made out.
52. For the aforesaid reasons, we are of the view that the
sentence of this accused also has to be enhanced. We,
therefore, enhance the sentence of all the appellants and
Accused 9, named, Ramavarma Thirumulpad, for their offence
under Section 326 to imprisonment for life. In view of
this, we are not interfering with sentences awarded to them
for other offences.
53. For the reasons aforesaid, all the appeals stand
dismissed and rules of enhancement stand disposed of by
enhancing sentences as ordered above. The appellants shall
surrender the bail bonds and undergo the sentence as awarded
by us. The trial court is directed to issue warrants to
arrest all the appellants and Accused 9, Ramavarma
Thirumulpad. The District Magistrate and Superintendent of
Police concerned are directed to execute the warrants.
118