Supreme Court of India
CHANDRAN @ MANICHAN @ MANIYANversusSTATE OF KERALA
- Citation
- 2011 INSC 264
- Decided
- 4 April 2011
- Disposal
- Disposed off
Holding
A person can be convicted under Section 57A for mixing or permitting the mixing of a noxious substance without personally performing the act, and once the prosecution establishes the accused’s involvement, the burden shifts to the accused to prove the contrary, a provision that is constitutionally valid.
Summary
The case involved a massive spurious liquor tragedy in Kerala where 31 people died and many were injured after consuming liquor adulterated with methyl alcohol. The accused, a group of brothers and their associates, were charged under the Abkari Act, particularly Section 57A, for mixing or permitting the mixing of a noxious substance, as well as various IPC offences. The Supreme Court examined whether conviction under Section 57A required proof that the accused personally mixed the methanol, and clarified that directing or permitting the mixing suffices, with the burden of proof shifting to the accused after the prosecution establishes involvement. The Court also upheld the admissibility of accomplice testimony without a pardon and affirmed the constitutionality of the shifted burden under Section 57A(5). While the convictions of the principal accused were upheld, the Court reduced the life sentences of two distributors (A‑25 and A‑30) to the period already served, finding life imprisonment excessive for them.
Issues considered
- Whether conviction under Section 57A(1)(ii) and 57A(2) requires proof that the accused personally mixed the noxious substance.
- Whether the burden of proof under Section 57A(5) can be shifted to the accused without violating Articles 20(3), 21 and 14 of the Constitution.
- Whether the testimony of an accomplice (PW‑53) is admissible despite the lack of a statutory pardon or prosecution as an accused.
- Whether the convictions under IPC sections 302 and 307 should be set aside.
- Whether the life imprisonment sentences for distributors A‑25 and A‑30 are proportionate.
Legislation cited
- Code of Criminal Procedure, 1973s. 306, s. 342, s. 342A, s. 5
- Constitution of Indias. Article 14, s. Article 20(3), s. Article 21
- Indian Evidence Act, 1872s. 105, s. 106, s. 113-A, s. 1148, s. 114-A, s. 133
- Indian Penal Code, 1860s. 1208, s. 201, s. 302, s. 307, s. 326, s. 328, s. 34
- Kerala Abkari Acts. 55, s. 57A, s. 58
Subjects
spurious liquormethanol poisoningAbkari ActSection 57Aburden of proofaccomplice evidenceconspiracylife imprisonmentillicit liquor trade
Judgment
[2011] 8 S.C.R. 273
CHANDRAN @ MANICHAN @ MANIYAN A
v.
STATE OF KERALA
(Criminal Appeal No. 1528 of 2005)
APRIL 4, 2011
B
[V.S. SIRPURKAR AND CYRIAC JOSEPH, Jj,]
Abkari Act - s.57A - Spurious liquor trade - Improper
mixing of noxious substance (methyl alchohol) with liquor led
to death of 31 persons and blindness and grievous injuries C
to several persons - A/legation that the accused were
engaged in the business of manufacture, storing, sale and
supply of illicit liquor which resulted in the said liquor tragedy
- Conviction of A-7 and his two brothers A-8 and A-4 u/
s.57A(1)(ii), and A-25 and A-30 u/s.57A(2) - All accused D
sentenced to life imprisonment - On appeal, held: Methyl
alcohol was used in mixing the liquor which was under the
control of A-7 who was being helped by his brothers, servants
and relatives - In order to be convicted uls. 57A, the
P.rosecution is not required to prove that A-7 physically mixed E
the methyl alcohol or the injurious substance with the spirit -
If A-7 directed his servants to mix methanol that would also
be covered within the scope of the words 'mixes or permits to
be mixed' in the Section - The knowledge of A-7 that
methanol was being mixed, the fact that he was running the F
business along with his hirelings and the further fact that he
used to be present at the time of the mixing are properly
proved by the prosecution - A-8 is the real brother of A-7 and
there are number of other circumstances to suggest that A-8
was actively engaged in the b.usiness - A-8 was an active G
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
273 H
274 SUPREME COURT REPORTS [2011] 8 S.C.R.
A business - The frequent calls of A-8 to his brother also show
that he was actively involved in the business - It is not
necessary that A-8 had to mix or permit to be mixed the
noxious substance himself - A-4 was also thoroughly in the
business like his brothers A-7 and A-8 - Conviction of A-8,
B A-7 and A-4 u/s.57A(1)(ii) and sentence of life imprisonment
imposed thereunder accordingly maintained - As regards A-
25, it is established that he used to take the liquor
manufactured by A-7 and the same used to be supplied to
him by A-4 and the same was distributed by him further - A-
C 25 does not seem to have taken care that it was not mixed
with methyl alcohol - Once this fact regarding the possession
of methyl alcohol is proved, A-25 cannot argue that the
possession of methyl alcohol was only incidental - The words
"omits to take reasonable precaution" would cast a duty on him
D to see that the liquor that he sells is not mixed with poisonous
substance - Again, under sub-section (5) of s. 57A, he was
bound to prove that he had taken reasonable precaution, as
contemplated in sub-section (2) - No evidence that the
accused discharged his burden in any manner - Therefore,
E his conviction for offence punishable u/s.57A(2) is justified:-
However, he should not be punished with life imprisonment
- This accused has already undergone more than 10 years
of imprisonment - Sentence brought down to the period
already undergone by him - The case of A-30 more- or less
F is identical with A-25 - There is enough evidence to show that
A-30 was involved in the procurement of liquor from A-4 - He
then packed it in the covers and supplied it - A-30 was also
behind the bars for more than 10 years - His life
imprisonment is also set aside and brought down to that
G already undergone by him.
Abkari Act- s.57A - Illicit liquor trade - Burden of proof
- On whom - Held: The prosecution has the initial burden to
suggest that the accused person was involved in the business
of illicit liquor and that he knew the nature thereof - It is only
H then that the burden would shift to the accused to prove that
CHANDRAN @ MANICHAN @ MANIYAN v. STATE 275
OF KERALA
he had no means to know about the nature of the business A
or the fact that the liquor was being mixed with noxious
substance like methanol - On facts, the prosecution had
discharged its primary burden - The accused persons, more
particularly, A-7, A-4 and A-8, did not offer any evidence so
as to discharge the burden put against them.. B
Abkari Act - s. 57A - Mixing of noxious substance with
liquor - Liability under s.57A - Held: S.57-A is extremely
general - Held: Offence under the Section is not limited to
licence holders, but refers to anybody who mixes or permits c
to be mixed any noxious substance or any substance which
is likely to endanger human life with any liquor - In addition
to the mixing or permitting to be mixed, sub-section (2) of
s. 57A brings in the dragnet of the offence, a person who omits
to take reasonable precaution to prevent the mixing of any
0
noxious substance - For being convicted uls.57A, it is not
necessary that the person concerned must himself do the
mixing.
Penal Code, 1860 - s. 1208 - Spurious liquor trade
involving mixing of noxious substance (methyl alchohol) with E
liquor - Leading to death of 31 persons and blindness and
grievous injuries to several persons - Allegations of
conspiracy against accused-appellants - Held: On facts, it
may not have been a conspiracy to mix the noxious
substance but the fact of the matter is that in order to succeed F
in the business which itself was a conspiracy the accused
mixed or allowed to be mixed methanol and used it so freely
that ultimately 31 persons lost their lives - Tl1e prosecution
clearly proved that there was a noxious substance which was
likely to endanger the human life - Secondly, they proved that G
the substance was mixed, permitted to be mixed and was
being regularly mixed with liquor - They thirdly" proved that
the persons mixing had the knowledge. that methanol was a
dangerous substance that aspect would be clear from the fact
that after the tragedy A-7 went and punished his servants and H
276 SUPREME COURT REPORTS (2011] 8 S.C.R.
A remonstrated them for 'not properly' mixing methanol with
ethyl alcohol - Lastly, it is proved that as a result of mixing
of methanol with the liquor and as a result of consuming such
liquor as many as 31 persons Jost their lives and number of
others suffered grievous injuries.
B
Criminal Trial - Evidence of accomplice - Admissibility
- Held: The evidence of an accomplice is admissible subject
to the usual caution - On facts, even if the prosecution did
not prosecute PW53 - a close relative of the accused, and
c used his evidence only as an accomplice, it was perfectly
legal - The evidence of PW-53 was most natural and was not
shaken in any manner in his cross-examination - He gave
complete graphic description of the incident in question.
Spurious liquor trade - Role of the State - State
D Government to take definite steps for overhauling the system,
by weeding out the corrupt by punishing them.
According to the prosecution, the accused-
appellants were engaged in the illegal trade of spurious
E liquor adulterated with methyl alcohol which led to a
tragedy in which 31 persons died, 6 persons lost their
eyesight and 500 persons suffered serious injuries due
to consumption of spurious liquor.
The appellants (A-7, his two brothers-A-4 and A-8, A-
F 25, A-30 and one other accused, A-1, who died
subsequently) were convicted by the Sessions Judge for
offences punishable under Sections 1208, 302, 307, 326,
328 and 201 read with Section 34 of IPC as also under
Sections 55(a) (g) (h) (i), 57A and 58 of the Abkari Act (a
G State Act for the State of Kerala) and sentenced to
rigorous imprisonment for life. On appeal, the High Court
set aside the conviction of the appellants under Sections
302 and Section 307, IPC, however, maintained their
convictions under Section 57A(1 )(ii) under the Abkari Act
H
CHANDRAN @ MANICHAN @ MANIYAN v. STATE 277
OF KERALA
along with convictions under Sections 324, 326, 328 and A
201, JP.C as also Section 55 (tl):and (i) and 58 of the Abkari
Act. ,. -0"
In the present appeals, the appellants challenged
their conviction contending that the Courts below had B
mis-interpreted the provisions of Abkari Act, more
particularly, Section 57 A(1 )(i) and (ii) as also Section
57A(2)(ii) and that the Courts below erred in convicting
A-7 and his two brothers A-8 and A-4 u/s.57A(1)(ii), and
in convicting A-25 and A-30 u/s.57A(2). c
· Disposing of the appeals, the Court
HELD:1.1. The original Section 57 of the Abkari Act
provided the punishment for adulteration by the licenced
• vendor or manufacturer. Section 57 A was added in the D
· Act by Amendment Act No.21 of 1984. A plain reading of
the Section would mean that now. the offence is not
limited to the licence holders, but refers to anybody who
mixes or permits to be mixed any noxious substance or
any substance which is likely to endanger human life E
with any liquor. The Section, therefore, is extremely
general. In addition to the mixing or permitting to be
mixed, sub-section (2) of Section 57 A brings in the
dragnet of the offence, a person who omits to take
reasonable precaution to prevent the mixing of any F
noxious substance. Significantly if, as a result of such act
of mixing of the liquor with noxious or dangerous
substance death is caused, the extreme penalty of death
also is provided. Imprisonment provided is for a term not
less than three years but which may· extend to
imprisonment for life as also with a fine of Rs.50,000/-. G
Sub-section 3 is the punishment fOr possession of any
liquor or intoxicating drug which is mixed with noxious
substance or dangerous drug knowing it to be so. Sub-
. section (4) prohibits the bail and the conditions for grant
H
278 SUPREME COURT REPORTS [2011] 8 S.C.R.
A thereof. Sub-section (5) puts the burden of proving that
. the accused has not mixed or permitted to be mixed or
has not omitted to take reasonable precautions to prevent
the mixing, on the accused himself. Similarly, the burden
would be on the accused to prove that while he was in
B possession of such liquor mixed with noxious or
dangerous substance, he did not know that such
substance-was mixed with such liquor. Section 58 speaks
for the possession of illicit liquor. [Paras 18, 19] [306-D;
308-H; 309-A-E]
c 1.2. Since the burden to prove the offence which
normally lies on the prosecution under the criminal
jurisprudence was shifted to the accused, it was but
natural that the constitutional validity of Section 57 A
came to be challenged. However, in P.N. Krishna Lal, this
D Court proceeded to uphold the same. It held that the
provisions did not violate Article 20 (3) of the Constitution
and thus Section 57A was held to be valid. In this locus
classicus this Court has described complete scope of
section 57A as a whole with special reference to Section
E 57A (5). It is in this backdrop of this exposition of law that
the Courts below were expected to decide upon the
criminality of the accused involved. It is seen that in the
instant case, the parameters fixed by this Court in the
aforementioned judgment were scrupulously followed by
F the Courts below. [Paras 20, 22, 23) [309-F-G; 316-C-E]
P.N. Krishna Lal & Ors. v. Govt. of Kera/a & Anr. 1995
Suppl. (2) sec 187: 1994(5) Suppl. SCR 526 - relied on.
R.C. Cooper v. Union of India 1970 (1) SCC 248: 1970
G (3) SCR 530; Kartar Singh v. State of Punjab (1994) 3 SCC
569: 1994 (2) SCR 375; Shambu Nath Mehra v. State of
Ajmer [1956] SCR 199; C.S.D. Swamy v. The State, [1960]
1 SCR 461 - referred to.
H Salabiaku v. Grance 1988 13 EHRR 379; Woolmington
CHANDRAN @ MANICHAN @ MANIYAN v. STATE 279
OF KERALA
v. Director of Public Prosecutions, (1935) A.C. 462; Mancini A
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. B
p. 658; Barnes v. United States, 412 US 837; In County
Court of Ulster, New York v. Samuel Allen, 442 US 140;
Herman So/em v. Jerry Buckley Helm, 463 US 277; Timothy
F. Leary v. U.S., 395 US 6 - referred to.
2.1. A-7 appears to be the boss who was running this
c
illegal business of liquor along with his family members
including A-4 and A-8 and even their wives were not left
behind which is clear from the fact that they were arrayed
as accused along with others but could not be brought
to book as they were absconding and hence their cases D
were separated. It appears to be an admitted position that
26 shops meant for selling toddy-were being managed
by this accused. He had the licence for running those
toddy shops. He had obtained them in the auction using
his own money. From the statements of the accused and E
from the documents, it is clear that a full-fledged business
in illicit liquor was going on. The High Court referred to
the oral evidence and also referred to number of
documents to show that several buildings were owned,
possessed and controlled by A-7 and his wife wherefrom F
A-7 conducted his liquor business. The High Court also
made reference to other properties which were used by
A-7 for the purpose of illicit business, which properties
belonged to the mother-in-law of A-7. The High Court
rightly came to the conclusion that it was A-7 who was G
controlling the whole affair. It is clear that methyl alcohol
which was the main culprit, was not only a dangerously
poisonous substance but was also used in mixing the
liquor which was under the control of A-7 who was being
helped by his brothers, servants and relatives. A-7 was H
280 SUPREME COURT REPORTS [2011] 8 S.C.R.
A the captain of the whole team. [Paras 24, 25, 27, 28] [316-
F-H; 318-F-G; 319-G-H; 320-G]
2.2. The reason why accused No.7 had to mix the
methyl alcohol and/or methynol is not far to see. It is
8 clarified from the evidence of PW-96 that A-7 had put the
bid of Rs. 4 crores for the 26 toddy shops and even if all
the toddy shops had worked in their full capacity he
could not have recovered even half the amount and it
was, therefore, that this idea of bringing ethyl alcohol,
C mixing it with methyl alcohol and creating various drinks
like Kalapani etc. was mooted. The result thereof was for
all to see which resulted in death of 31 persons. The High
Court correctly observed that the basic reason for
bidding for 26 shops·for toddy was to get the legitimate
godown for toddy. It is proved that those godowns,
D 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.
E Thus, there was a full liquor industry going on under his
captainship. [Para 30] [321-C-F]
2.3. The last nail in the coffin is the evidence of PW-
53, a close relative of A-7. He was supplying spirit to A-7
F from various places. He has graphically described in his
evidence as to how the spirit business was being done
inasmuch as he deposed that the spirit used to be
brought from the tankers and used to be collected in the
syntex tanks and was filled in 35 litres cans. This spirit
G was used for making a drink called Ka/apani by mixing
with essence and some toddy. It was then filled in the
cans and dispatched in the vehicles. The evidence of this
witness further goes on to show the position of godown
which was used for the storage of ethyl alcohol and
H methyl alcohol. He referred to methyl alcohol as
CHANDRAN @ MANICHAN @ MANIYAN v. STATE 281
OF KERALA
'essence'. He described that the spirit was brought from A
Karnataka ·and essence used to come on Thursdays in
a white Fiat car. The Fiat car had a secret chamber. That
car was identified as M.0.-24. The tank and the platform
were built in the back seat and the front seat of the car.
There were three valves attached to the same and 35 B
litres of methyl alcohol i.e. the essence could be carried
in the said car. He gave a graphic description of mixture
with spirit which ultimately was sold. He specifically
named A-20, A-22, A-23 and A-21 who were supervising
the mixing. In his evidence he has also specifically C
referred that he had seen M.0.-24, the car, importing the
essence i.e. the methyl alcohol precisely two days prior
to the liquor tragedy. He has also named A-16 and
another boy who were the occupants of the said car. He
also suggested that he and the other employees were o
filling up the essence in 10 cans. The High Court has
referred to the further evidence on the part of th is witness
that in the night at about 10.30 p;m. the tanker lorry came
with spirit and the said spirit was filled in the syntex tank
and cans. Those half filled cans were then filled with the E
methyl alcohol meaning thereby it was mixed. He then
went on to depose that the employees of A-4, namely, A-
5, A-6, A-9 and A-10 came there with three vehicles and
essence and they mixed up the essence with the spirit.
He claimed that in all 60 cans were filled up and were F
dispatched in three cars for transporting to various
places for sale. According to him after the tragedy, on the
instructions of A-7, what was left in the syntex tank was
poured in the river, un-used cans were removed and
plastic covers were disposed of by setting fire and that
A-7 had also taken adequate care to send away the G
employees for sometime and it was through him that the
witness came to know that people had died by drinking
the spirit supplied by A-4 and his employees due to a
mistake in mixing by A-20 and A-22. (Para 31) (321-G-H;
322-A-H; 323-A-B] . H
282 SUPREME COURT REPORTS [2011) 8 S.C.R.
A 2.4. For being convicted under Section 57 A, it is not
necessary that the person concerned must himself do the
mixing. It is obvious that A-7 was the boss. In fact PW-53
describes him as the boss. It is, therefore, obvious that
everything was done as per his command and if it was
B so, then in order to be convicted under Section 57 A, the
prosecution Is not required to prove that A-7 physically
mixed the methyl alcohol or the injurious substance with
the spirit. Even if A-7 commanded his servants to mix up,
he is equally guilty under the Section. In fact illegally
C importing ethyl alcohol and mixing the same with
methanol was a regular trading activity on the part of A-
7. The licences for running the toddy shops was merely
a facade. He had undoubtedly put a very tall bid for those
licences and could not have afforded to continue merely
D on the basis of those 26 toddy shops. Therefore, he gave
his business a complete new turn, that is, instead of
selling toddy through those outlets he started selling
alcoholic drink prepared from ethyl alcohol and methanol
and that illegally imported both and all this was going on
E with the corrupt cooperation of those who could have
checked it. Therefore, it is a proved position from the
evidence of PW-53 that A-7 was the boss of the illegal
trade. He got the methanol imported and used his
godown which he rightfully possessed on account of his
F licences for 26 shops. Therefore, his knowledge that
methanol was being mixed, the fact that he. was running
the business along with his hirelings and the further fact
that he used to be present at the time of the mixing are
properly proved by the prosecution with the aid of
testimony of PW-53 and are enough for a finding about
G Section 57A(1)(ii). It was not necessary that A-7 had
physically mixed the methyl alcohol for his being
convicted. It was actually done on his command and
within his knowlege. His offence could also come within
the definition on account of the other words of the
H Section 'or permits to be mixed'. While interpreting these
CHANDRAN @ MANICHAN @ MANIYAN v. STATE 283
OF KERALA
words, namely, 'whoever mixes or permits to be mixed' the A
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 B
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 c
in any manner incorrect. [Paras 32, 34] [323-D-H; 324-A-
B-G-H; 325-A-C]
2.5. There is no .reason to discard the testimony of
PW-53; The evidence was most natural and was not
shaken in any manner in his cross-examination. He has D
given a complete graphic description of what happened.
He has also spoken as to what happened when A-15 and
A-7 came and A-7 gave a beating to A-20 asking him as
to how mixing was not properly done. He then directed
the whole remaining material to be poured into the river E
and to destroythe cans. Accordingly, as per the direction,
the concoction in the Syntex tank was poured in the river
and the cans and the covers were burnt and buried
under the sand. He pointed out that the essence mixed
spirit was taken to the shed belonging to A-7. He spoke F
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- G
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 god own also
belonged to him and the mixing used to be done there H
284 SUPREME COURT REPORTS [2011] 8 S.C.R.
A only. 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
B occasions to the various shops of A-7. The evidence
given by this witness sounds truthful because he has not
tried to justify himself nor has he made any efforts to save
himself. Considering the whole evidence, this witness is
creditworthy. [Paras 35, 36] (326-C-H; 327-A-C]
c 2.6. The evidence of PW-60 provides complete
corroboration to the evidence of PW-53. This is apart from
the fact that there is another piece of evidence which
corroborates the evidence of PW-53 which is to be found
in the evidence of the Investigating Officer, PW-270. The
D description given by PW-270 on his searches of the
places and, more particularly, of the places as described
by PW-53 completely tallies. These are also material
particulars which would lend support to the testimony of
PW-53. On the whole there are number of other
E corroborations to the evidence of PW-53. [Para 41] (331-
C-E]
2.7. It cannot be said that th;, evidence of PW-53
could not be taken into consideration because this
F witness, though an accomplice, was neither granted
pardon under Section 306 Cr.P.C. nor was he
prosecuted. Even if the prosecution did not prosecute
PW-53 and used his evidence only as an accomplice, it
was perfectly legal. The evidence of such witness subject
G to the usual caution was admissible evidence. [Para 42]
(332-E-G]
2.8. The Trial Court and the appellate Court were right
in convicting A-7. The High Court rightly confirmed the
same. [Para 46] [339-G-H]
H
CHANDRAN @ MANICHAN @ MANIYAN ·v. STATE 285
OF KERALA
Laxmipat Choraria & ·Ors. v. State of Maharashtra AIR A
1968 SC 938: 1968 SCR 624 - relied on.
Shankar @ Gauri Shankar v. State of Tamil Nadu 1994
(4) SCC 478; Rampa/ Pithwa Rahidas v.State of Maharashtra
(1994) Suppl. (2) SCC 73: 1994 (2) SCR 179; Rattan Singh B
v. State of Himachal Pradesh 1997 (4) SCC 161: 1996 (9)
Suppl. SCR 938; Smt. Laxmi v. Om Prakash AIR 2001 SC
2383: 2001 (3) SCR 777 - referred to.
3. The prosecution has the initial burden to suggest
that the accused person was involved in the business of c
illicit liquor and that he knew the nature thereof. It is only
then that the burden would shift to the accused to prove
that he had no means to know about the nature of the
business or the fact that the liquor was being mixed with
noxious substance like methanol. In the present case, A- o
8 is the real brother of A-7 and there are number of other
circumstances to suggest that A-8 was actively engaged
in the business. It is clear from the evidence of discovery
regarding the fake car number plates that A-8 was neck
deep Into the business of spurious liquor. He was an E
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 F
by his real brother A-7 and in which he was an active
partner. The contentions raised that he may at the most
be booked for transporting the spurious liquor is also not
acceptable because if that is established then his active
participation in the business also comes to the forefront.
Thereby his knowledge that the liquor was being mixed G
with methanol has also to be presumed. There was no
necessity for keeping the fake unattached number plates
in his premises and the whole objective is clear of
shielding the cars by attaching fake number plates to
them. The High Court thoroughly discussed about the H
286 SUPREME COURT REPORTS [2011] 8 S.C.R.
A vehicle which was sold by PW-68 and was found in the
possession of this accused. The High Court also
discussed about the transaction of his house, which was
in front of the half built house where obnoxious liquor
trade was going on. A-8 had taken a house right in front
B of the aforementioned half built house and it was at his
instance that the real number plates of the car which had
the traces of methanol were found. Therefore, no reason
is found to discard the evidence of this discovery. It is
obvious that A-8 was engaged in the business of
c manufacture, storing, sale and supply of illicit liquor
along with A-7 which resulted in liquor tragedy. A-8 was
well aware of the nature of the business as he was
thoroughly into it. Therefore, the offence under section
57 A (1) (i) and (ii) as also the other offences unde.r
Sections 324, 326 and 328 read with Section 34, IPC have
0
been rightly held proved against him. It cannot be said
that the discovery w~s unnatural and was farcical since
both the Courts hav~ held the said discovery to have
been proved. Again his frequent calls to his brother
would cut both ways and would also show that he was
E actively involved in the business. It is not necessary that
the accused had to mix or permit to be mixed the noxious
substance himself. He could be booked on the same
basis as A-7 has bee~ booked on the same logic. It
cannot be accepted thi.t A-8 had no idea that methanol
F is a noxious substance. If a huge business was going on
and methanol was being imported along with ethyl
alcohol in huge quantity and if the car which brought the
methanol was in his possession and further if the
methanol is established to be a noxious substance, it
G would be a travesty to hold that A-8 did not know that
methanol was obnoxious substance. It is also well
established that this accused could be convicted with the
aid of Section 1208, IPC and also independently of the
offence under Section 57 A (1) (ii) as he was not only the
H part of the business but had actively taken part in it. That
CHANDRAN @ MANICHAN @ MANIYAN v. STATE 287
OF KERALA
by itself is sufficient to hold that he had the knowledge A
about the mixing of the ethyl alcohol with the noxious
substance like methanol and in spite of it,continued. His
offence would be covered fully in the phraseology 'or ·
permits to be mixed' and accordingly, his conviction is
confirmed. The Trial Court and the appellate Court did not B
commit any illegality in booking him under section
57A(1)(ii) also. Considering the number of deaths caused
on account of the business in which this accused was
neck deep, no leniency can be shown. The appeal of A-
8 is accordingly dismissed. [Para 49, 50 and 52] [343-F- c
H; 344-A-F; 345-B-H; 346-A-D]
4.1. A-4 is another brother of A-7 and A-8. The part
played by A-4, is not less than the part played by A-8, if
not more. It is clear that this witness was thoroughly in
the business like his brothers A-7 and A-8. It is, therefore; D
clear that this was nothing but a conspiracy to run a
patently illegal business along with his two brothers and
others. A-5 and A-11 along with A-6 and A-10 are proved
to have physically transported the mixed substance to
various places. However, they are not the persons who 'E
took active part in the business as its proprietors as A-4
did. In fact A-4 was at the helm of the affairs unlike those
accused who merely transported the liquor. The case of
A-4, therefore, is quite different. It was argued that he
himself had not transported the noxious substance F
which was done by A-15. That may not be so, but he was
practically managing the whole show. It has rightly been
held· by the Trial Court and the appellate court that A-5
was a worker of A-4 and took active part in the
transportation of methanol. His involvement in the G
business is so deep that it was clear that he was a
conspirator and it was in pursuance of conspiracy that
the whole liquor business which essentially involved the
mixing of methanol with the ethyl alcohol was being
conducted. [Para 53] [346-E; 348-C-H] H
288 SUPREME COURT REPORTS [2011] 8 S.C.R.
A 4.2. The language of Section 57A(1) of the Abkari Act
is wide enough and A-4 will fit in the broad language.
Reading the language of Section 57 A (1) as it is, it is more
than proved that all these accused persons entered into
a conspiracy to do the illegal liquor business and in order
B to succeed in their business, took recourse to mixing
methanol with ethyl alcohol and brought out a new type
of spurious liquor. In order to increase the potency of the
drink and .in order to probably give taste, they mixed the
methanol. Once ethyl alcohol is proved to be a noxious
c drug, if they are found to be mixing or permitting mixing
methanol with ethyl alcohol then the offence would be
complete whether they had the knowledge regarding the
qualities of methanol or not. That is apart from the fact
that in this case itself to say that the accused did not
know about the properties of methanol would be wrong.
0
If that had been so they would not have been running
between Hosur and Kerala to bring methanol in the cars
which had fake registration numbers and secrete
chambers. [Para 54) [349-C-G)
E 4.3. There can be no question about the absence of
conspiracy. The whole business itself was a conspiracy.
It may not be the conspiracy to mix the noxious
substance but the fact of the matter is that in order to
succeed in the business which itself was a conspiracy
F they mixed or allowed to be mixed methanol and used it
so freely that ultimately 31 persons lost their lives. The
prosecution has discharged its primary burden. The
accused persons, more particularly, these three brothers
have not offered any evidence so as to discharge the
G burden put against them under section 57 A(1 )(v). In this
case the prosecution has clearly proved that there was
a noxious substance which was likely to endanger the
human life. Secondly, they have proved that substance
was mixed, permitted to be mixed and was being
H regularly mixed with liquor. They have thirdly proved that
CHANDRAN @ MANICHAN @ MANIYAN V. STATE 289
.OF KERALA
· the persons mixing had the knowledge that methanol A
was a dangerous sub~tance that aspect would be clear
from the fact that after the tragedy A-7 went and punished
his servants and remonstrated them for 'not properly'
mixing methanol with ethyl alcohol. Lastly, it is proved
that as a result of mixing of methanol with the liquor and B
as a result of consuming such liquor as many as 31
persons lost their lives and number of others suffered
grievous injuries. The appeal filed by A-4 is dismissed.
[Para 55] [350-E-H; 351-A-D]
c
5. It is well proved by the prosecution that A-25 was
a major link used to purchase liquor from A-4 and he was
the one to distribute the same. A-25 was selling liquor in
retail through A-32, A-35 etc. A-25 and A-10 were the
employees of A-4 who were supplying the liquor•. It is 0
established that A-25 used to ·take the liquor
manufactured by A-7 and the same used to be supplied ·
to him by A-4 and the same was distributed by hirri ·
further. The sale on the part of A-25 and his active
participation in the business run by A..4 and A-7 was
E
, clearly brought out. He was convicted for the offence
under Sections 57A(2)(i) and was heavily fined for
Rs.50,000/-, Rs.25,000/- and Rs.2 lakhs on different
counts including Section. 55(a)(i) as also under Section
58 of the Abkari Act. He was, thus, in a position for
distributors and it has come out in the evidence that the F
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 G
care that it was not mixed with methyl alcohol. There is
no doubt that A-25 was acquitted of the offence under
Section 1208, IPC by the Trial Court and there is no
appeal against it. The conviction of this accused is for
offence punishable under Section 57A(2) and on that H
290 SUPREME COURT REPORTS [2011) 8 S.C.R.
A account, he has been awarded life imprisonment. There
can be no dispute that this witne~s had no control over
the business run by A-7 and, therefore, he was rightly
acquitted for the offence under Section 1208, IPC i.e.
conspiracy. However, it cannot be said that his conviction
B under Section 57 A(2) is incorrect on that count. From the
evidence of PW-252, it is found that there was a search
in the house of this accused on 23.10.2010 and a bottle
was seized which was mixed with ethyl and methyl. This
was substantiated by Chemical Analysis Report (Exhibit
G .. P-784). He was also in possession of pure methyl alcohol,
which is substantiated by Exhibit P-417, a disclosure
made by him to PW-269 as per Exhibit P-1019. Even this
was found to be methyl alcohol. Once this fact regarding
.the possession of methyl alcohol is proved, A-25 cannot
0 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 convicted for
E the offence under Section 57 A(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
F reasonable precaution, as contemplated in sub-Section
(2). There is no evidence to the contrary nor has the
accused discharged his burden in any manner.
Therefore, his conviction for offence punishable under
Section 57 A(2) is justified. However, he should not be
G punished with life imprisonment. This accused is
convicted for offence punishable under Section 55 as
also under Section 58, the maximum punishment for
which Section is 10 years and he has already undergone
more than 10 years of imprisonment. This Court,
H
CHANDRAN @ MANICHAN @ MANIYAN v. STATE 291
OF KERALA
therefore, deems it fit while confirming his conviction for A
the other offences and the sentences therefor to bring
down the sentence from life imprisonment to what is
undergone by him. [Para 56) [353-A-H; 354-A-G]
6. The case of A-30 more or the less is identical with 8
A-25. As per the prosecution version, this accused had
filled the liquor supplied by A-4 through A-5 and A-10 in
covers and on the fateful night (on 20.10.2000), he carried
the same in Car to the residence of A-39 and she, in turn,
sold the same to the customers. The evidence of PW-153
is clear enough, who complained that the liquor was C
found to be stronger and when he asked what the matter
was, it was pressed by A-39 that the liquor was supplied
by A-30. In fact, as per the evidence of PW-153, he had
himself found A-30 bringing the liquor. Similar is the
evidence of PW-154 who felt uneasy after drinking the D
liquor; He was required to be hospitalized. Even he has
deposed that A-39 used to sell the liquor which was
supplied to her by A-30 and A-31. He has also seen the
liquor being supplied. In fact, he also spoke about the
happenings on 20.10.2000. PW-164, the father of A-39 had E
also consumed the liquor and he also suffered. He also
established the connection of A-30. Thus, there is enough
evidence to establish that on the fateful day, A-30
accompanied by A-31 supplied three bundles of
covers, each having 100 covers. He has made a F
disclosure statement that alcohol was poured in the
closet of a latrine recently constructed on the eastern side
of the Senior Orthodox Church. The liquid in this closet
which was having smell of liquor was collected and it was
established that it contained methyl alcohol. M.O. 256 is G
the sample while Exhibit P1001 is the chemical analysis
report. There can be no dispute that there is enough
evidence to show that A-30 was involved in the
procurement of liquor from A-4. He then packed it in the
covers and supplied to A-39. The High Court did not find H
292 SUPREME COURT REPORTS [2011) 8 S.C.R.
A him guilty under Section 304 or Section 307, IPC. Instead,
the High Court booked him for offence under Section
57A(2)(ii), Section 55(a), (h) and (i) and Section 58 of the
Abkari Act. The contention raised that his conviction
should not be maintained under Section 57A(2)(ii) as he
B did not have knowledge and he was not concerned with
the preparation of the spurious liquor is liable to be
rejected on the same reasoning as given for rejecting the
similar contentions raised on behalf of A-25. The role
played by both is almost the same. The contention raised
c that he could have been booked only under Sections
55(a), (h) and (i) and under Section 58, is also rejected.
The statement made that this accused was also behind
the bars for more than 10 years, was not seriously
disputed on behalf of the Government. Therefore, his life
0 imprisonment is set aside and brought down to that
already undergone by him. The appeal filed by A-30 is
dismissed with the modification in the sentenc·e as
indicated. [Para 58] [355-C-H; 356-A-H; 357-A]
7. This Court is not only perturbed by the
E 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
F business. It is hoped and expected that the Kerala
Government takes up this issue and takes definite steps
for overhauling the system. It will be, therefore, for the
administrators and the Government to take positive steps,
firstly, to overhaul the system by weeding out the
G corrupts by punishing those who are responsible for the
whole system looking sideways. This Court is not aware
as to whether such an exercise is taken up, but if it has
not been taken up the government is directed to take
such steps. [Para 59) [357-E-H; 358-A]
H
CHANDRAN @ MANICHAN @ MANIYAN v. STATE 293
OF KERALA
State of Maharashtra v. Mayer Hans George 1965 (1) A
SCR 123; State of Gujarat v. Acharya D. Pandey & Ors.
(1970) 3 SCC 183: 1911 (2) SCR 557; Sanjay Dutt v. State
Through CBI (1994) 5 sec 410: 1994 (3) Suppl. SCR 263;
Kalpnath Rai v. State (through CBI) (1997) 8 SCC 732 :....
distinguished. B
Lim Chin Aik v. Reginam (1963] 1 All ER 223; Sweet v.
Parsley (1969] 1 All Er 347; B (a minor) v. Director of Public
Prosecutions (2000] 1 All 833 - referred to.
Case Law Reference: c
19·94 (5) Suppl. SCR 526 relied on Para 20,48,49,55
1970 (3) SCR 530 referred to Para20
1994 (2) SCR 375 referred to Para 20 D
1988 13 EHRR 379 referred to Para 21
(1935) A.C. 462 referred to Para 21
(1942) A.C. 1 referred to Para 21
E
[1975] Q.B. 27 referred to Para 21
(1981) A.C. 648 referred to Para 21
26 D.L.R, (4th) 200 referred to Para 21
(71) L.Ed. 749 referred to Para 21 F
78 Law. Ed. 664 referred to Para 21
412 us 837 referred to Para 21
442 us 140 referred to Para 21 G
395 us 619 referred to Para 21
1960 SCR 461 referred to Para 21
1994 (2) SCR 179 referred to Para 37
H
294 SUPREME COURT REPORTS [2011] 8 S.C.R.
A 1994 (4) sec 478 referred to Para 37
1994 (2) SCR 179 referred to Para 37
1968 SCR 624 relied on Para 37
1996 (9) Suppl. SCR 938 referred to Para 37
8
2001 (3) SCR 777 referred to Para 37
1994(5) Suppl. SCR 526 referred to Para 37
1971 (2) SCR 557 referred to Para 37
c
1994 (3) Suppl. SCR 263 referred to Para 37
1968 SCR 624 referred to Para 42
1996 (9) Suppl. SCR 938 referred to Para 43
D 2001 (3) SCR 777 referred to Pata 43
1963) 1 All ER 223 referred to Para 54
1965 (1) SCR 123 distinguished Para 54
E 1969] 1 All Er 347 referred to Para 54
(1970) 3 sec 183 referred to Para 54
1971 (2) SCR 557 distinguished Para 54
(1994) 5 sec 410 referred to Para 54
F
1994 (3) Suppl. SCR 263 distinguished Para 54
(1997) 8 sec 132 distinguished Para 54
[2000) 1 All 833 referred to Para 54
G
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1528 of 2005.
From the Judgment & Order dated 8.10.2004 of the High
Court of Kerala at Ernakulam in Criminal Appeal No. 824 of
H 2002.
CHANDRAN @ MANICHAN @ MANIYAN v. STATE 295
OF KERALA
WITH A
Criminal Appeal Nos. 1530,1531, 1532 of 2005 and 864 of
2011.
K. Radhakrishnan, V. Shekliar, A. Sharan and J.C. Gupta,
K.K. Mani, Abhishek Krishna, R. Shivkumar, Adolf Mathew,
Siddarth Dave (for A. Raghunath), Jemtiben AO, Malini Paduval, B
Babita Sant, Mohd. Sidduque, Rajasree Ajay, S. Ganesh,
Deepakshi Jain, V.K. Sidharthan, Geetha, R. Satish and G.S.
Mani for the appearing parties.
The following Judgment of the Court was delivered
c
JUDGMENT
1. This judgment will dispose of Criminal Appeal No.1528
of 2005 (Chandran @Manichan @ Maniyan v. State of Kerala)
filed by Chandran (accused No.7), Criminal Appeal No.1530
of 2005 (Manikantan @ Kochani v. State of Kerala) filed by O
Manikantan (original accused No.4), Criminal Appeal No.1531
of 2005 (Manoharan v. Kerala State Rep. by Public Prosecutor)
filed by Manoharan (original accused No.30), Criminal Appeal
No.1532 of 2005 (Vinod Kumar @ Vinod v. State of Kerala)
filed by Vinod Kumar (original accused No.8), SLP (Crl.) 842 E
of 2006 (Surest'! Kumar @ Suresh v. State of Kerala) filed by
Suresh Kumar (original accused No.25) and Criminal Appeal
No.800 of 2006 (Herunessa @ Thatha v. State of Kerala) filed
by Herunessa (original accused No.1). Out of all these appeals,
the appeal filed by accused Herunessa @ Thatha has become F
infructuous since accused No.1, Herunessa is reported to have
expired.
2. Leave granted in SLP (Crl) 842 of 2006.
3. All the accused-appellants stood convicted by the
Sessions Judge, Kallam by its judgment dated 16.7.2002 for G
various offences punishable under Sections 1208, 302, 307,
326, 328 and 201 read with Section 34 of the Indian Penal
Code (IPC) as also under Sections 55{a) (g) (h) (i) , 57A and
58 of the Abkari Act. We need not re(er to the punishments
awarded to all these accused persons. Suffice it to say, that H
296 SUPREME COURT REPORTS [2011] 8 S.C.R.
A 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
B 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
c 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
0 imprisonment for 10 years 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
E 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
F 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
G compunction or qualms of conscience, distill illicit liquor and
then to increase the sale and to gain astronomical profits make
their product more potent at least in taste so as to attract the
poor customers. Such poor customers invariably become the
prey of such unholy avarice on the part of the bootleggers and
H in the process even lose their lives at times or suffer such
CHANDRAN @ MANICHAN @ MANIYAN v. STATE 297
-, OF KERALA
injurieswhich are irreparable like total blindness etc. and that A
is precisely what has happened in this case.
5. On 22.10.2000, in the wee hours, Sub-Inspector of
":.1.·
Police, Paripally received information that one Raghunatha
Kurup of Kulathoorkonam and seven others were admitted in
the Medical College Hospital Thiruvananthapuram for treatment 8
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, C
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 D
police station and this was followed by further crimes registered
in the sarne police station being Crime No.809 of 2000, Crime
No.810 of 2000, Crime No.811 of 2000 and Crime No.817 of
2000. All these crimes were consolidated with crime No.268
of 2000 of Parippally police station and the information started E
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 F
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 G
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
H
298 SUPREME COURT REPORTS (2011] 8 S.C.R.
A persons had lost their lives, six persons had suffered total
blindness in Kollam District whereas more than 500 persons
suffered serious injuries on account of the drinking of the illicit
liquor.
6. Unfortunately, all this was going on in God's own
8
country, Kerala which was turned into hell by the liquor mafia.
Eventually, investigation by the SIT was completed and the final
report was filed before the Judicial Magistrate, 1st Class,
Paravoor on 21.1.2001 against 47 persons. After the charge-
sheet was filed, accused No.48 was also added by a
C supplementary charge-sheet. However, as many as four
accused persons, they being accused Nos. 34, 36, 39 and 45
died on account of consumption of their own medicine, the
spurious liquor. Accused No.3 had lost his eye sight completely.
Few accused were absconding, their cases were split up. Rest
D ofthe accused were sent for trial before the Sessions Judge
before whom a marathon trial took place wherein 271
witnesses were examined, as many as 1105 documents were
proved and relied upon _and over 291 material objects were
produced. The defence also examined as many as 17
E witnesses and relied on 110 documents being Exhibits D-1 to
D-111.
7. Prosecution alleged that methyl alcohol which is a
poisonous substance used to be brought from Karnataka and
F mixed with Ethyl alcohol. At times, this concoction was mixed
with toddy and other essences resulting in a drink called
Ka/apani. The methyl alcohol used to be mixed with ethyl
alcohol which was also illegally and illicitly procured in order to
add potency to the drink so that more and more people would
G purchase the same. These sales were made from the regularly
licensed toddy shops and from other places. There was 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
iH
CHANDRAN @ MANICHAN @ MANIYAN v. STATE 299
OF KERALA
had servants like Balachandran (A-15), the Manager. Even their A
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) B
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 c
firstly procuring the methyl alcohol and then mixing the same in
the laboratories and then distributing the same in the whole
district, more particularly, to the various outlets for sale of toddy.
Chandran (A-7) used to control these shops which were either
in his nar:ne or some other names. It was alleged by the D
prosecution that all these accused persons hatched a criminal
conspiracy in or about March, 2000 prior to the auction of toddy
shops for the period between 2000-01 and well-oiled machinery
was created forJrnj:lorting·methyl alcoholfrom a place called
Arihant Chemicals, Bangalore. Chandran (A-7) controlled toddy
shop Nos.1 to 26 of Chirayinkil Panchayat so that there were E
· 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 F
barrels of methyl alcohol as part of the criminal conspiracy from
Arihant Chemicals, Bangalore and the same was entrusted to
Anil Kumar (A-16) for import to Kerala for the purpose of its
mixing with the spirit ethyl alcohol and for sale by Manikantan
@ Kochani (A-4), Chandran@ Manichan (A-7), Vined Kumar G
(A-8), Balachandran (A-15), Usha (A-18), Sugathan (A-19),
Vijayan (A-20), Rassuludeen (A-21 ), Suresh @ Sankaran (A-
22), Binu @ Monkuttan (A-23). It was brought by Anil Kumar
(A-16) in a Fiat car which had fake registration number. This
Fiat car was fitted with a secret tank and thus the poisonous H
300 SUPREME COURT REPORTS [2011] 8 S.C.R.
A methyl alcohol was imported and was mixed with 56,200 litres
of spirit which was also imported to Kerala by Mahesh (A-12),
Salil Raj (A-13), Ashraf (A-14) and Sakthi (A-48). All the mixing
was done at Pandakasala and then it was given for distribution
to Manikantan (A-4) who transported it through Anil Kumar (A-
B 5), Shibu (A-6), Santhosh @ Kochu Santhosh (A-9), Santhosh
@Valiya Santhosh (A-10), Mohammed Shaji@ Shabu (A-11),
knowing it to be injurious to health, through various other
vehicles.
8. The said methyl alcohol which was mixed in the
C Pandakasala godown meant for toddy shop Nos.1 to 26 of
Chirayinkil Panchayat and then got distributed by the above
accused persons who all knew very well that it was injurious to
health and was fatal. For this purpose, cars bearing registration
No. PY01 M-6582 and TN-1-R 9283 and a Van bearing
D registration No. KLOQ-2787 were used.
9. It was further the case of the prosecution that from this
poisonous spirit, 35 litres were taken in a car bearing
registration No.TN-1-R 9283 on 20.10.2000 at about 3.30 p.m.
E with the assistance of Anil Kumar (A-5) and Shibu (A-6) and
was given to Herunnesa (A-1 ), Rajan (A-2) and Raju @
Mathllakom Raju (A-3) in the house of A-1 and A-2 at
Kalluvathukkal. It was alleged that accused Nos.1 and 2 and 3
diluted the spirit by adding water and sold it through their outlets
F because of which 18 persons died due to consumption of
spurious liquor. It was pointed out that two persons lost their
eyesight and number of others sustained grievous injuries. It
was further alleged in the charge that Manikantan (A-4) with the
help of Anil Kumar (A-5) and Santhosh (A-10) transported 10
G Kannas full of spurious liquor having capacity of 35 litres in the
car bearing fake registration No. KL 01M 7444 on 20.10.2000
night to Charuvila Puthen Veedu, Anthamon Muri and
Kalyanpuram village at Kottarakkara and there the said liquor
was sold by A-30 with the assistance of A-31 who earlier diluted
the spurious liquor by adding water at the house of A-30 and
H
CHANDRAN @ MANICHAN @ MANIYAN v. STATE 301
OF KERALA
packed liquor in polythene covers containing 100 ml each. The A
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 B
one Soman Pillai and CWs 630 to 634 and on that account
Latha Kumari and Soman Pillai died while others· suffered
serious injuries.
1O. It was further alleged by the prosecution that the
remaining five Kannas full of spurious liquor were then C
transported in the car bearing fake registration No. KL 01 M
7444 with the help of accused Nos. 5 and 10 on the same day
near the shops of CWs 633 and 664 at Pallikkal in Mylom
village at about 8.45 p.m. and entrusted the same to A-25 who
with the help of some other accused like Sujith (A-24), Dileep D
(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 E
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. F
11. Another round of 35 litres of kannas was taken by A-
4 with the help of all on 20.10.2000 in the evening to Attingal
Avanavancheny and was sold to A-42 who along with A-47 took
the spurious liquor in an auto rickshaw driven by A-47 near the G
CRPF camp in Thiruvananthpuram District and sold it to A-45
who further sold about 14 litres of spirit to A-44 and 7 litres of
spirit to A-46 on 25.10.2000 in the evening. The said liquor was
diluted by A-45 with the help of A-43 by mixing water and
converted it into arrack and further sold it to a person called
H
302 SUPREME COURT REPORTS [2011) 8 S.C.R.
A Bhaskaran Kutty Nair. It is alleged that because of the
consumption of the same liquor, A-45 himself died while some
others suffered grievous injuries.
12. The prosecution also allsged that A-44 diluted the
spirit by adding water and sold it on 26.10.2000 near Apollo
8
colony to CWs 433 to 456. They consumed the same liquor and
sustained grievous injuries and one of them lost his eyesight.
13. The prosecution alleged that the conspiracy was
hatched in March, 2000 amongst all the accused and because
C of the criminal act on the part of the accused of mixing
poisonous methyl spirit, death of as many as 31 persons was
caused, as many as 266 persons suffered grievous injuries
while 5 persons lost their eye sight completely. All the accused
persons were, therefore, charged with the offences under
o Sections 302, 307, 326, 328, 201, 1208 read with Section 34
of the Indian Penal Code as also under Section 55 (a) (g) (h)
and (i), Section 57A and Section 58 of Abkari Act. On the basis
of this charge, evidence was led of about 270 witnesses. The
accused persons abjured their g.uilt and claimed to be tried.
E 14. The sessions Judge categorized ~he accused persons
in the following manner:
(1) those who were involved in the manufacture of the
illicit liquor;
F
(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.
G
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
H depending upon the seriousness of the crime as per the
CHANDRAN @ MANICHAN @ MANIYAN v. STATE 303
OF, KERALA
· classifications which have been shown above, Naturally, the A
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 B
imprisonment but imprisonment ranging from 3 years to 10
years was awarded to them. The convicted accused filed
appeals before the High Court. The High Court also acquitted
few of the accused persons and those whose appeals were
dismissed have now come before us by way of separate c
appeals which we have indicated in the first paragraph of this
judgment. The High Court has considered the appeals filed by
various accused before it separately. We also propose to do
the same thing. We have to consider mainly the appeals filed
by accused Nos. A-7, A-4, A-30, A-8 and Suresh Kumar (A- 0
25) who filed SLP {Crl) 842 of 2006. Before we take up this
task, we would analyze the impugned judgment of the High
Court.
16. To begin with, the High Court, after quoting Sections
8, 55, 57 A and 58 of the Kera la Abkari Act, proceeded to E
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 F
sometimes the appreciation of evidence of common witnesses
is repeated in the High Court's judgment but considering the
large number of witnesses, more than 276 in all, that was
inevitable. Still_Jt will be our endeavour to avoid the repetition
while considering the matter at this stage. G
17: These appeals are against the concurrent findings of
fact and, therefore, it is obvious that this Court does not enter
the area of re-appreciation of evidence. That can be done only
in case the appreciation is substantially defective and the
H.
304 SUPREME COURT REPORTS [2011] 8 S.C.R.
A inferences drawn by the Courts below could not have been
drawn in law. This Court has, time and again, declared that even
where the Courts have acted upon inadmissible evidence or
have left out of the consideration some material piece of
evidence, the defence would be entitled to address this Court
B on those issues, and the Court would proceed to re-appreciate
the evidence and re-examine the factual findings on that basis
alone. We must, at this juncture, [ecord that at least prima facie
such is not the case here. On the other hand, we find that the
evidence has been meticulously appreciated by both the Trial
c and the appellate Court. We also found no instance of
inadmissible evidence having been accepted or some material
evidence having been ignored by the Courts below. The
arguments mostly related to the interpretation of the provisions
of Abkari Act as also the provisions of the l_ndian Penal Code
(IPC). The common feature of the arguments was that the
0
Courts below have mis-interpreted the provisions of Abkari Act
and, more particularly, of Section 57A (1) (i) and (ii) as also
Section 57A (2) (ii). It has been again the common feature of
arguments that the Courts below have erred in convicting the
accused persons for offences under those Sections as the
E essential ingredients of those Sections were not proved by the
prosecution as against the accused persons. It will be,
therefore, proper to first examine the scope of Section 57 A.
However, such scope will have to be examined in the light of
some other provisions of the Act as also the Statement of
F Objects and Reasons and the history of the Legislation. Suffice
it to say, at this.juncture, that the original nomenclature of the
Act was Cochin Abkari Act, Act 1 of 1077 and Abkari Act
(Travancore) 4of1073. These acts provided for the levy offees
for the licences for manufacture and sale of liquor and
G intoxicating drugs. Three acts were operating, they were Cochin
Abkari Act, Travancore Abkari Act and Madras Abkari Act.
Since that was causing difficulty, an Ordinance came to be
promulgated on 01.05.1967. This was replaced by a Bill and
that is how Abkari Act was born.
H
CHANDRAN @ MANICHAN @ MANIYAN v. STATE 305
OF KERALA
18. Section 2 (6A) of the Act defines 'arrack'. It means any A
potable liquor other than toddy, beer, spirits of wine, wine,
Indian made spirit, foreign liquor and any medicinal preparation
containing alcohol. Section 2 (8) defines 'toddy' to mean
fermented or unfermented juice drawn from a coconut, palmyra,
date or any other kind of palm tree. Section 2 (9) speaks about 8
the 'spirits' meaning any liquor containing alcohol and obtained
by distillation. Sub-section (10) provides the definition of 'liquor'
which includes spirits of wine, arrack, spirits, wine, toddy, beer
and all liquid consisting of or containing alcohol. Section 2(12)
defines country liquor which means toddy or arrack while C
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 • D
export of liquor or intoxicating drug. Section 8 is an important
Section which speaks for the prohibition of manufacture, import,
export, transport, transit, possession, storage and sale of
arrack. The contravention of this Section is punishable with 10
years' imprisonment as also with fine of not less than Rs.1 lakh. E
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.
I
Section 55 speaks about the illegal import F
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 G
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
H
306 SUPREME COURT REPORTS (2011] 8 S.C.R.
A be less than Rs.1 lakh, excepting for clauses (d) and (e), where
punishment is of one year imprisonment. This punishment has
been brought in by way of an amendment by Act 16 of 1997
before which the punishment was merely two years and with
fine of not less than Rs.20,000/-. There was a gruesome liquor
-B tragedy in Earnakulam district in the year 1982 resulting in loss
of eye-sight and physical incapacity in case of several persons
and, therefore, severe penalties were provided for those who
were responsible for adulteration of liquor and its sale. These
punishments were made further stringent by the Amendment
c 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
D . 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:- ·
E "57 A. 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
F 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
G 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
H imprisonment for life, and with fine which may extend to
CHANDRAN@ MANICHAN @MANIYAN v. STATE 307
OFKERALA.
fifty thousand rupees; · · A
(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.
B
Explanation- for the purpose of this section and
section 578 the expression 'grievous hurt' shall have the
same meaning as in section 320 of the Indian Penal Code,
1860 (Central Act 45 of 1860).
c
(2) whoever omits to take reasonable precautions to
prevent the mixing of any noxious substance or any
substance which is likely to endanger human life or to
cause grievo1,1s ·hurt to human beings, with any liquor or .
intoxicating 'drug shall, on conviction, punishable- 0
(i) if as a result of such omission, grievous hurt is
caused to any person, with imprisonment for a term which
shall not be less than two years but which may extend to
imprisonment for life, and with fine which may extend to
fifty thousand rupees: E
•
(ii) if as a result of such omission, death is caused
to any person, with imprisonment for a term which shall not
be less than three years but which may extend to
imprisonment for life, and with the fine which may extend F
to fifty thousand rupees;
(iii) in any other case, with imprisonment for a term
which shall not be less than one year but which may extend
to ten years, and with fine which may extend to twenty-five
thousand rupees. G
(3) whoever possesses any liquor or intoxicating drug
in which any substance referred to in sub-section (1) is
mixed, knowing that such substance is mixed with such
liquor or intoxicating drug shall, on conviction, be H
308 SUPREME COURT REPORTS [2011) 8 S.C.R.
A punishable with imprisonment for a term which shall not be.
less than one year but may extend to ten years, and with
fine which may extend to twenty-five thousand rupees.
(4) notwithstanding anything contained in the Code
of Criminal Procedure, 1973 (Central Act 2 of 1974), no
B
person accused or convicted of an offence under 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
c oppose the application for such release, and
(b) where the prosecution opposes the application,
the Court is satisfied that there are reasonable grounds
for believing that he is not guilty of such offence.
D (5) Notwithstanding anything contained in the Indian
Evidence Act, 1872 (1 of 1872)-
(a) where a person is prosecuted for an offence
under sub section (1) or sub-section (2) the burden of
E. 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;
F
(b) where a person is prosecuted for an offence
under sub-section (3) for being in possession of any liquor
or intoxicating drug in which any substance referred to in
sub-section (1) is mixed, the burden of proving that he did
not know that such substance was mixed with such liquor
G or intoxicating drug shall be on him."
19. A plain reading of the Section would mean that now
the offence is not limited to the licence holders, but refers to
anybody who mixes or permits to be mixed any noxious
H substance or any substance which is likely to endanger human
CHANDRAN@ MANICHAN@ MANIYAN. v. STATE 309
OF KERALA
life with any liquor. The Section, therefore, is extremely general. . A
In addition to the mixing or permitting to be mixed, sub-section
(2) brings in the dragnet of the offence, a person who omits to
take reasonable precaution to prevent the mixing of any noxious
substance. It is significant to note that if, as a result of such act
of mixing of the liquor with noxious or dangerous substance B
death is caused, the extreme penalty of death also is provided.
Imprisonment provided is for a term not less than three years
but which may extend to imprisonment for life as also with a
fine of Rs.50,000/-. Similar such penalties provided in sub-
section 2(ii) and sub-section 2(iii) are also relevant providing c
for residuary cases. Section 3 is the punishment for possession
of any liquor or intoxicating drug which is mixed with noxious
substance or dangerous drug knowing it to be so. Sub-section
(4) prohibits the bail and the conditions for grant thereof. Sub-
section (5) which is the most important section, puts the burden o
of proving that the accused has not mixed or permitted to be
mixed or has not omitted to take reasonable precautions to
prevent the mixing, is on the accused himself. Similarly, ·the
burden would be on the accused to prove that while he was in
possession of such liquor mixed with noxious or dangerous
substance, he did not know that such substance was mixed with · E
such liquor. Section 58 speaks for the possession of illicit
liquor. At this juncture, we need not go to the other offences of
the Indian Penal Code like murder, attempt to murder etc. In
this case, the charge is predominantly under Sections 55 (a), F
(g), (h), (i) 57A and 58 of the Abkari Act.
20. Since the burden to prove the offence which normally
lies on the prosecution under the criminal jurisprudence was
shifted to the accused, it was but natural that the constitutional
validity of the Section came to be challenged. However, in P.N. G
Krishna Lal & Ors. v. Govt. of Kera/a & Anr. reported in 1995
Suppl. (2) SCC 187, this Court proceeded to uphold the same.
-While upholding the constitutional validity, the Court has in detail
explained the mode of proof by prosecution and the extent of
burden of proof which lies on the accused. The challenge which H
310 SUPREME COURT REPORTS [2011) 8 S.C.R.
A
was made to the validity of the Section was on the basis of the
Universal Declaration of Human Rights (UDHR) and the
International Convention for Civil and Political Rights (ICCPR),
to which India is a member which guarantee fundamental
freedom and liberty to the accused. It was suggested that in
8 criminal jurisprudence it was settled law that it was on the
prosecution to prove all the ingredients of the offence with which
the accused has been charged. It was suggested that Sub-
section (5) relieves the prosecution of its duty to prove its case
beyond reasonable doubt which is incumbent under the Code
C and the Evidence Act and makes the accused to disprove the
prosecution case. Thereby, the substantive provisions and the
burden of proof not only violate the fundamental human rights
but, also fundamental rights under Articles 20(3) and 14. The
provision was criticized as arbitrary, unjust and unfair and
D 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
E 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
F precaution to prevent mixing of noxious substance or any other
substance with arrack or Indian made foreign liquor or
intoxicating foreign·drug was made punishable with minimum
sentence was harsh, unjust and excessive punishment offending
Articles 14 and 21 of the Constitution of India. Section .588
G 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
H without any intent to sell, to become a presumptive evidence
CHANDRAN@ MANICHAN@ MANIYAN v. STATE 311
OF KERALA
·-
to impose punishment without the prosecution proving that the A
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 B
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 c
compelled him to be a witness to prove his innocence. While
commenting on Article 20 (3), this Court referred to R.C.
Cooper v. Union of India reported as 1970 (1) sec 248 as
also Kartar Singh v. State of Punjab [(1994) 3.SCC 569] where
it was. held that freedom could not last long unless it was 0
coupled with order, freedom can never existwithout order and
both freedom and order may co-exist. It was observed that
liberty must be controlled in the interest of the society but the
social interest must never be overbearing to justify total
deprivation of individual liberty. It was then stated that liberty E
would not always be an absolute licence but must arm itself
within the confines of law, In other words, there can be no liberty
without social restraint. The Court also observed that the liberty
of each citizen is borne of and must be subordinated to the
liberty of the greatest number. The Court observed that
common happiness is an end of the society, lest lawlessness F
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:
G
"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 H
312 SUPREME COURT REPORTS (2011] 8 S.C.R.
A 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
B 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
C 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
D the accused did not have the absolute right to business or trade
of liquor. The Court also referred to the prohibitions regarding
mixing of noxious substance with liquor or possession thereof
and further held that the State possessed the right to complete
control on all kinds of intoxicants. The Court found that the
E 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
F 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
G 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
H reasonable limits which take into account the importance of that
Ct-IANDRAN@ MANICHAN@ MANIYAN v. STATE 313
OF KERALA
is at stake and maintain the rights of the defence. Providing A
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 B
of proof of the accused. The Court referred to the decisions in
Woolmington v. Director of Public Prosecutions, (1935) AC.
462; Mancini v. Director of Public Prosecutions, (1942) AC.
1; Reg. v. Edwards [1975] Q.B. 27; Ong Ah Chuan v. Public
Prosecutor, (1981) AC. 648; Queen v. Oakes, 26 D.L.R, (4th) C
200; Ed Tumey v. State of Ohio, (71) L.Ed. 749; Morrison v.
•California, 78 Law. Ed.664; United States v. Gainey, 13, Law.
•Ed. 2nd. p. 658; Barnes v. United States, 412 US 837; In
•County Court of Ulster, New York v. Samuel Allen, 442 US
140; Herman Solem v. Jerry Buckley Helm, 463 US 277;
Timothy F. Leary v. U.S., 395 US 6, which were the foreign D
~ourt judgments to the issue of burden of proof. The Court also .
-·eferred to Sections 5, 6, 101, 105 and 106 as also to Sections
~ 13A and 114A of the Indian Evidence Act and relied on the
lbservations made in Shambu Nath Mehra v. State of Ajmer,
1956] SCR 199. Further the Court also referred to C.S.D. · E
3wamy v. The State, [1960] 1 SCR 461 and commented on
•he presumptions raised under the Prevention of Corruption Act.
"he Court observed in para 39 as under:
"39.lt is the cardinal rule of our criminal jurisprudence that F
the burden in the web of proof of an offence would always
lie upon the prosecution to prove all the facts constituting
the ingredients beyond reasonable doubt. If there is any
reasonable doubt, the accused is entitled to the benefit of
the reasonable doubt. At no stage of the prosecution case, G
the burden to disprove the fact would rest on the defence.
However, exceptions have been provid~d in sections 105
and 106 of the Evidence Act, as stated hereinbefore.
Section 113-A of the Evidence Act raises a presumption
as to abatement of suicide by a married woman by her H
..
314 SUPREME COURT REPORTS [2011] 8 S.C.R.
A husband or his relatives. Similarly section 114-A raises
presumption of absence of consent in a rape case. Several
statutes also provided evidential burden on the accused.
On the general question of the burden of proof of facts
within special knowledge of the accused, this Court, in
B 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
c 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
D 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
E
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
F 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 proof of
preponderance of probabilities is the extended criminal
jurisprudence and the burden of proof is not as heavy as
G 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
H to be convicted. From this conceptual criminal
CHANDRAN @ MANICHAN @ MANIYAN v. STATE 315
OF KERALA
jurisprudence, question emerges whether sub~section (5) A
placing the burden on the accused of the facts stated
therein would offend Articles 20(3), 21 and 14 of the
Constitution."
(emphasis supplied)
8
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 c
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 0
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 E
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 F
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.•
G
22. Ultimately, in paragraph 53 the Court noted the object
of the Amendment Act which was to put down the 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 underthe Code, the accused H
316 SUPREME COURT REPORTS [2011) 8 S.C.R.
A 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
s 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
c violate Article 20 (3) of the Constitution and thus Sections 57A
and 578 were held to be valid.
23. In this locus c/assicus this Court has described
complete scope of section 57 A as a whole with special
reference to Section 57A (5). It is in this backdrop of this
D 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 aforementioned judgment have been scrupulously
followed by the Courts below. Our answer to this vexed question
E is in the affirmative.
24. Accused No.7 ·
He appears to be the boss who was running this illegal
F 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
G 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.
H This auction was held for the year 2000-01, in March, 2000. It
CHANDRAN@ MANICHAN@ MANIYAN v. STATE 317
OF KERALA
. was only at that time that he realized that he had paid Rs.4 A
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 being A-12, A-
13, and A-48 helped him. The prosecution alleged that methyl B
alcohol used to be purchased by A-17 outside the state of
Kera la and used to be supplied to A 16 who delivered it to the
godown at Pandaksala bearing door No. Vl/98 of Chirayinkil
Panchayat. Pandaksala was, in one sense, a factory for the
production of the spurious liquor as per the prosecution case. c
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 D
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 E
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 F
these statements and 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 Sewerage Corporation allegedly signed by the G
Excise Commissioner. It came in light that they used to sell
arrack in 150 litre cover indicatec1 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, H
318 SUPREME COURT REPORTS [2011) 8 S.C.R.
A · 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
B 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
C behalf of A-7 did not seriously dispute these findings. It is an
admitted position that the outhouse of A-7 to the building
numbered as door No.Xlll/656 bearing door No.IV/1248 and a
house bearing door No.Xlll/655 were owned by this accused.
PW-270, K.K. Joswa, conducted a search in the outhouse vide
D 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
E 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 li•res were found and
seized. They were buried in the South-Eastern portion of the
F 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
G owned, possessed and controlled by A-7 and his wife
wherefrom A-7 conducted his liquor business. Shri
Radhakrishnan did not seriously contradict this finding of the
High Court.
26. When the factory of A-7 was searched by PW-
H
CHANDRAN@ MANICHAN@ MANIYAN v. STATE 319
OF KERALA
· 270,K.K.Joswa on 18.11.2000 vide Exhibit P106 he detected A
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. B
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 C
in building bearing No.CP 111/580. 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 D
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. Nos.
83, 84, 85 and 86 were seized from these premises. The High E
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 F
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 G
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 H
320 SUPREME COURT REPORTS [2011] 8 S.C.R.
A 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
8
which was in possession of accused 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 the!?e vehicles were seen
C 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
D 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,
E 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
F the main culprit, was not only a dangerously poisonous
substance but was also used in mixing the liquor which was
under the control of A-7 who was being helped by his brothers,
servants and relatives. We will consider separately the evidence·
against A-4 and A-8 who were the brothers of A-7. However,
G 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
H
CHANDRAN@ MANICHAN@ MANIYAN v. STATE 321
OF KERALA
of PW-61, Dennis A. and PW-57, Thulasidar and has also A
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 8
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. c
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 toddy shops and even· if all the toddy
shops had worked in their full capacity he could not have D
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 E
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 F
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, G
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 . H
322 SUPREME COURT REPORTS (2011) 8 S.C.R.
A as to· how the spirit business was being done inasmuch as he
deposed that the spirit used to be brought from the tankers and
used to be collected in the syntex tanks and was filled in 35
litres cans. This spirit was used for making a drink called
Kalapani by mixing with essence and some toddy. It was then
B 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
C essence used to come on Thursdays in a white Fiat car. The
Fiat car had a secrete chamber. That car was identified as
M.0.-24. The tank and the platform were built in the back seat
and the front seat of the car. There were three valves attached
to the same and 35 litres of methyl alcohol i.e. the essence
D 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 tiis evidence he has also specifically referred that he
had seen M.0.-24, the car, importing the essence i.e. the methyl
E alcohol precisely two days prior to the liquor tragedy. He has
also named A-16 and another boy who were the occupants of
the said car. He also suggested that he and the other employees
were filling up the essence in 10 cans. The High Court has
referred to the further evidence on the part of this witness that
F 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
G 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
H properly mixing and A-7 then left the place telling them to destroy
CHANDRAN @ MANICHAN @ MANIYAN v. STATE 323
OF KERALA
the evidence. According to him, thereafter, what was left in the A
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 B
A-4 and his employees due to a mistake in mixing by A-20 and
A-22.
32. Shri Radhakrishnan, learned Senior Counsel very
seriously argued that even if the evidence of this witness is C
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 D
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 E
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 F
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 findings in that behalf. Therefore, he gave his business G
a complete new turn, that is, instead of selling toddy through
these 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 H
324 SUPREME COURT REPORTS [2011) 8 S.C.R.
A 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
B 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
C 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
D Radhakrishnan tried to take 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
E 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
F 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
G 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
H
CHANDRAN @ MANICHAN @ MANIYAN v. STATE 325
OF KERALA
could also come within the definition on account of the other A
words of the· Section 'or permits to be mixed'. While
interpreting these words, namely, 'whoever mixes or permits
to be mixed' the real import of the words would have to be taken
into consideration and thereby if A-7 directed his servants to
mix methanol with methyl alcohol that would also be covered B
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. c
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 D
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 E
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 Pandaksala godown. He referred to methanol
as 'essence' and pointed out that essence was added to th~
spirit collected in syntax tank to make Kalapani and then if used F
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 G
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
326 SUPREME COURT REPORTS [2011] 8 S.C.R.
A 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
B 35 litres through pose 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 out that alcohol came in the tanker
c 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
0 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
E 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
F 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, ~Ider brother.
Some irrelevant questions were put to him which he answered
suggesting that the property belonged to A-7 and the god own
G also belonged to him and the mixing used 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
H hand, the operation of mixing was explained again in the cross-
CHANDRAN @ MANICHAN @ MANIYAN v. STATE 327
OF KERALA
examination. He owned up that he himself carried Kalapani on A
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 8
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 C
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 witnes$ is in the nature· of evidence of an D
accomplice and has to be red in the light of Section 133 C'lnd
Section· 1148 '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 E
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 Rampa/
Pithwa Rahidas v.State of Maharashtra (1994) Suppl. (2) SCC F
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 G
also pointed out that the witness. had stated that he had acted
under the instructions ofhis boss. ltis 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 in$tructions
. H
328 SUPREME COURT REPORTS . [2011) 8 S.C.R.
A 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 Radhakrishnan that his evidence
did suggest that his behaviour was strange. Shri Radhakrishnan
insisted that this witness was insisting that he had good
B 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-a-vis A-7, we do not think that this amounts to a
very strange behaviour on account of which this witness should
C 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
0 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
E him as a prosecuti9n 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 Cr.P·.c. The learned counsel further argued that the
F 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. Le~rned senior counsel also suggested that
PW-53 was on inimical terms towards A-7 and, therefore, his
G 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
H his evidence was even not materially corroborated.
· CHANDRAN @ MANICHAN @ MANIYAN v. STATE 329
OF KERALA
39. Learned counsel also argued that the evidence of PW- A
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 B
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 market. Shri Radhakrishnan also argued that though the
burden of proof under Section 57A (5) was on the accused, the C
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 D
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. E
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. · F
41. Before we consider the other contentions which we
we
have referred to in the earlier paragraphs, must first consider
the argument of Shri Radhakrishnan regarding PW-53 being
an accomplice and the so-called unfairness on the part of G
prosecution in not prosecuting him or not proceeding under
section 306 Cr.P.C. The 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 H
330 SUPREME COURT REPORTS [2011) 8 S.C.R.
A 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
B 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
c 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
0
there to Chirayinkeezhu. He thus, went to Chirayankeezhu in the
car having registration No. TMY 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
E 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
F 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
G 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
H that when the samples were taken from this car, it was positive
.
CHANDRAN @ MANICHAN @ MANIYAN v. STATE 331
OF KERALA
for methanol. Shri Radhakrishnan also did not contest this A
position. Most of his cross-examination is irrelevant. Some
irrelevant and inadmissible questions 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 B
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 c
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
D
corroborates the evJdence of PW~53 which is to be found in
the evidence of K. K. Joshua, PW-270. The description given
by the Investigatirig 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 E
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 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 F
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
thousarid litres which was kept on the platform. He has also G
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 H
332 SUPREME COURT REPORTS [2011] 8 S.C.R.
A 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
B 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
appellate Court, the discussion has come about the evidence
c 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 fjnding 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
0
appellate co4rt 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
E 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 &
F 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 evidence was
G 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
H
CHANDRAN @ MANICHAN @ MANIYAN v. STATE 333
. . OF KERALA
accomplice evidence was received subject to safeguards A
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 B
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 C
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), D
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 ~he accused. In some of E
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 F
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
·G
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 H
334 SUPREME COURT REPORTS (2011] 8 S.C.R.
A 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."
The Court has also observed in paragraph 11:
B 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
c 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
D 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
E 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
F 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
G 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
evidenre on his own behalf before the grand jury or in other
H words, it received a limited meaning; see Queen v.
CHANDRAN @ MANICHAN @ MANIYAN v. STATE 335
OF KERALA
Rhodes (18.99) 1 QB 77;" · A
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
8
evidence. Jhe contention of Shri 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 C
appellate Court, we have no hesitation to hold that the Trial
Court and the appellate Court were rigllt 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 D
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 obje.cts. Apart from the evidence
of investigation witness from the police department, several E
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 F
prove the telephone calls made from various telephones to the
accused as also the accused persons 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 G
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 H
336 SUPREME COURT REPORTS [2011] 8 S.C.R.
A 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
B 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
c Sessions Judge. Amongst the material objects which came
before the Court and were observed and commented upon by
it include the pouch fiUing machine, vessels, synthetic cans,
plastic cans, bottles etc. The Trial Court returned the finding that
firstly it was established by the prosecution that the deaths
0 injuries of the victims were caused because of consumption of
spurious liquor with methyl alcohol. The Trial Court furfher
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 ·
E these deaths were caused due to the drinking of illicit liquor
mixed with methyl-alcohol. The medical ciartificates 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
F 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,
G 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
H spurious liquor and suffered injuries because of that. All these
CHANDRAN @ MANICHAN @ MANIYAN v. STATE · 337
OJ= KERALA.
witnesses, number of which is substantial, deposed about the A
ill-effects felt after drin~ing from the shops where liquor provided.
by A-7 ahd 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 B
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 c
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 ro1e of A~7; the Sessions Judge then
referred to the evidence of A; Mohan {PW-127), Deputy P
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 E
examination and the replies 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 F
Dutt and Murleedharan were his partners and that the accounts
were written by Balachandran (A-15). It was an admitted
position that A-Twas 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 G
brothers conducted 1O 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 H
338 SUPREME COURT REPORTS [2011) 8 S.C.R.
A 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
B 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 and
18 toddy tapers who were members of the Union. According
to the Sessions Judge these employees used to keep away
c 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
0 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. Ry 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
E 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.
F 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 from the evidence of K.S.
G 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
H of nature of his business. These premises include Sreekrishna
CHANDRAN @ MANICHAN @ MANIYAN , V..ilSIT"ATE 339
OF KERALA
Tabuk Industries. After referring to various sections, the Trial A
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 B
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 c
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 methylalcohol
0
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 · E
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 F
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 G
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 rightly confirmed H
340 SUPREME COURT REPORTS [2011] 8 S.C.R.
A 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
8
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
C 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 1208 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
D 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 M0-32 and M0-39 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
E were detected in the cans as also in 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
F 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
G 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
H
CHANDRAN@ MANICHAN@ MANIYAN v. STATE 341
OF KERALA
by his brother, A-7. The High Court in paragraph 81 of its A
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 B
the liquor. According to the High Court such 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 c
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
0
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 E
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 F
alcohol or as the case may be toddy for making Kalapani. The
learned counsel further argued 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 G
connect A-8 with the mixing of noxious substance. Relying on
the language of Section 57 A(1) (ii) it is the argumentthat 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 H
342 SUPREME COURT REPORTS [2011] 8 S.C.R.
A 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
B 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
c 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 bill in the
name of Shyamala Kumari was also of no consequence. The
learned counsel argued that being the younger brother of A-7
0
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
E 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
F 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
$aid recovery is to the accepted it would be of no consequence
G 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 section 57 A (1) (ii).
H
CHANDRAN @ MANICHAN @ MANIYAN v. STATE 343
OF KERALA.
Lastly, the learned counsel argued that there is no clear A
finding for the complicity under Section 1208, 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 8
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 1208, IPC. The counsel c
then made extensive comments on the law laid down in P.N.
Krishna Lal v. Govt. of Kera/a [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
0
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 substance. It is only then
that it will be the burden of the accused to prove otherwise.
E
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 F
said burden has been discussed thoroughly in Krishna Lat'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 G
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 H
344 SUPREME COURT REPORTS [2011) 8 S.C.R.
A 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. However, it
is clear from the evidence of discovery regarding the fake
B 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
c 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.
0
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
E thoroughly discussed about vehicle PY01 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 trade was going on.
F 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
G 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
H to discard the evidence of this discovery.
CHANDRAN@ MANICHAN@ MANIYAN v. STATE 345
OF KERALA
50. As if this· was not $ufficient according to PW-49, S. A
Shiju, who was the driv~r 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. B
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 of the business as
he was thoroughly into it. Therefore, the offence under section c
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 0
·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 E
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 F
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 1208, IPC and also independently of the offence G
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 H
346 SUPREME COURT REPORTS [2011] 8 S.C.R.
A 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,
8
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.
C 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
D committed any illegality in booking him under section 57A (1)
(ii) also. Considering the number of deaths caused on account
of the business in which this accused was neck deep, we do
not think that any leniency can be shown. We accordingly
dismiss the appeal of A-8.
E
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
F 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
G 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
H
CHANDRAN@ MANICHAN@ MANIYAN v. STATE 347
OF KERALA
injured witnesses have been examined who were the A
customers of liquor saying that on the fateful day the liquor
tested a little different. PW-53 in his evidence specifically
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 B
stated that this was done under the leadership of A-4 along with
few others. He has specifically deposed that on the fateful day,
M024 car came to the godown ofA-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 c
.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
0
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. Ip the cross examination at the
instance of this accused, beyond putting an innocuous E
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 it was
Anil Kumar who used to do the same. This accused was also
involved by V. Harikumar (PW-167) who also knew this F
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. Vasudevan (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 G
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 H
348 SUPREME COURT REPORTS [2011] 8 S.C.R.
A 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 M0-26 four blue
cans and M0-27, 12 white cans. He along with his brother
B 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
c come in the evidence 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
D 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 dl)served 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
E 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-
F 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
G of A-5 and such a contention has rightly not been accepted by
the trial and the appellate Court. His involvement in the bu_siness
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
H alcohol was being conducted. Shri Dave tried to dub the
CHANDRAN @ MANICHAN @ MANIYAN v. STATE 349
OF KERALA
evidence of PW-53 as a general evidence which argument A
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 8
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. Tlie language of Section 57 A (1) is wide enough as we C
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 0
language of Section 57 A (1) as it is, it is more than proved
that all these accused persons entered into a conspiracy to do
the illegal liquor business and in order 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 E
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 F
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 G
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 ca.~es relied upon by the
learned counsel the case related to an offence like Section 57 H
350 SUPREME COURT REPORTS [2011] 8 S.C.R.
A A (1 ). The whole discussion on mens rea, therefore, is of no
consequence. The following cases were relied on:
(1) Lim Chin Aik v. Reginam [1963] 1 All ER 223
(2). .. State of Maharashtra v. Mayer Hans George, 1965
8 (1) SCR 123
(3) Sweet v. Parsley [1969] 1 All Er 347
(4) State of Gujarat v. Acharya D. Pandey & Ors.
(1970) 3 sec 183
c
(5) Sanjay Dutt v. State Through CBI (1994) 5 SCC
410
(6) Kalpnath Rai v. State (through CBI) (1997) 8 SCC
D 732
(7) B (a minor) v. Director of Public Prosecutions
[2000) 1 All 833
55. There can be no question about the absence of
E 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
F 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
G argument is clearly incorrect. We have already explained the
responsibility on the prosecution in the earlier part of the
judgment. 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
H so as to discharge the burden put against them under section
CHANDRAN @ MANICHAN @ MANIYAN v. STATE 351
OF KERALA
57A (1) (v). In this case the prosecution has clearly proved that A
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 B
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 c
lost their lives and number of others suffered grievous injuries.
We reject the argument of Shri Dave that the initial ~urden 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. ·
D
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 E
of proof and the interpretation of Section 57 A (1) were
concerned. It is well prov.ad 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 F
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 G
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 wa.s told H
352 SUPREME COURT REPORTS [2011) 8 S.C.R.
A 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 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
9 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.
c 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 !:>e given a canister whenever
he beca.me indebted. He used to sell 35 litres of liquor in that
0
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-
E 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 and A-25 came there in a blue Maruti Car
and five canisters of liquor were unloaded there. It was
F 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.
G 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
H appreciated the legal position that evidence of PW-173 could
CHANDRAN@ MANICHAN@ MANIYAN v. STATE 353
OF KERALA
not be accepted unless it is corroborated by other witnesses. A
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 B
under Sections 57A(2)(i) and was heavily fined for Rs.50,000/
-, Rs.25,000/- and Rs.2 lakhs on different counts including
Section 55(a)(i) as also under Section 58 of the Abkari Act. He
was, thus, in a position for distributors and it has come out in
the evidence that the liquor sold by sub-distributors killed number c
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 D
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 E
acquitted of the offence under Section 1208, IPC by the Trial
Court and there is no appeal against it. The conviction of this
accused is for offence punishable under Section 57A(2) and on
that account, he has been awarded life imprisonment. Shri
V.Shekhar, learned senior counsel contended that since this
witness was not a conspirator and had-nothing to do with the F
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 counsel urged that if this accused was selling G
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 1208, IPC i.e. H
354 SUPREME COURT REPORTS [2011] 8 S.C.R.
A 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
8 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. Manila! (PW-269) as per Exhibit P-1019. Even this
was found to be methyl alcohol. Once this fact regarding the
C 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
D 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,
E 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 57 A(2) is justified. However, we
agree with Shri V. Shekhar, learned senior counsel, who
F 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
G 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 leas~ insofar as the punishment is concerned. We, therefore,
H deem it fit while confirming his conviction for the other offences
CHANDRAN @ MANICHAN @ MANIYAN v. STATE 355
OF KERALA
and the sentences therefor to bring down the sentence from life A
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. B
57. We accordingly dismiss his appeal with the
modification in the sentence as indicated. ·
58. This takes us to the Criminal Appeal No. 1531 oi 2005
filed by A-30. His case more or the less is identical with Suresh C
(A-25). As per the prosecution version, this accused had filled
the liquor supplied by A-4 through A-5 and A-10 incovers 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 o
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 E'
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
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 sen F
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- G
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 H
356 SUPREME COURT REPORTS [2011] 8 S.C.R.
A 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 ca·r under hire
purchase agreement. This was none else but car bearing
B registration No. PT01 M 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-175). This accused offered himself as a
defence witness and admitted therein that the car was owned
c 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
0 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
E 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
F 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 prayed for leniency. For the same
G 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 1O years, which contention was not seriously
disputed by Shri J.C. Gupta, learned counsel appearing on
H behalf of the Government. We, therefore, set aside his life
CHANDRAN @ MANICHAN @ MANIYAN v. STATE 357
OF KERALA
imprisonment and bring down the sentence to what has been A
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 B
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 C
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 31 persons have lost their fives, about 5
or more persons have lost their eye-site forever and several D
others have suffered in their health on account of the injuries
caused to them. ft 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 E
not injurious. The use of methanol was a dangerous proposition.
ft only shows that the human avarice could create hell in God's
own country Kerafa. 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 F
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 Kerafa G
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. ft will
be, therefore, for the administrators and the Government to take
positive steps, firstly, to overhaul the system by weeding out the H
358 SUPREME COURT REPORTS [2011] 8 S.C.R..
A 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
B 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
C 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.
D
B.B.B. Appeals disposed of.
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