JOSEPH KURIEN PHILIP JOSEversusSTATE OF KERALA

A                       JOSEPH KURIEN PHILIP JOSE
                                         Y.
                              STATE OF KERALA

                                OCTOBER 4, 1994

B         [M.M. PUNCHHI AND K. JA YACHANDRA REDDY, JJ.]

         Indian Penal Code, 1860, S. 27~Adulteration of drink for sal~Ap­
  pellant in control of depot which sold adulterated arrack causing death-Held,
  the offence stood committed on the very day appellant found in possession
C of adulterated arrack.

         Kerala Abkari Act, SS, 55(a), (i) and 57-fllegal possession and sale
  of adulterated arrack-Appellant not licensee but in control of depot that sold
  adulterated arrack-Held, mere possession of liquor by the appellant sufficient
D to attract offence.

           Indian Penal Code 1860, S. 328--Causing hurt by poison-Trial CouTt
    holding accused not aware that arrack being sold likely to cause death and
    ruling out offence under Ss. 302 and 304-Trial CouTt neveTtheless convicting
    accused for causing huTt by poison-Held, in the absence of mens rea or
E   evidence that accused administered poisoned liquor to the deceased offence
    not made out.

          Indian Penal Code 186G, S. 1~betment-Trial CouTt convicting and
    sentencing co-accused for substantive offence under Ss. 272 and 328
F   fPC-High Court acquitting co-accused of substantive offence but convicting
    and sentencing him for abetment-Held, when. direct involvemen.t not estab-
    lished accused cannot without a fonnal charge be held guilty of abet-
    ment-Criminal triaL

         Arising out of the Punalur Liquor Tragedy in Kerala in which certain
G   persons died after consuming poisonous adulterated arrack, the first
    Appellant who was in control of the Punalur arrack depot and the second
    appellant who was its manager were convicted and sentenced by the Trial
    Court for offences under Ss. 272 and 328 IPC for adulteration and causing
    burt by poison respectively. The Trial Court held that the appellants were
H   not aware that the arrack they sold was likely to cause death and accord-
                                        U2
                       JOSEPH KURIEN v. STATE                            123
ingly ruled out the offence of causing death punishable under S302 or even      A
S304 IPC. The appellants were also convicted and sentenced under the
Kerala Abkari Act for possessing and selling adulterated liquor.

     The High Court confirmed the conviction and sentence of the first
appellant but converted the conviction of the second appellant into one for     B
abetment and sentenced. him to two years' rigorous imprisonment al·
though he was ,.ever charged with that offence in the first place. Hence this
appeal.

      Allowing the appeal of the second Appellant and partly the appeal
of the first appellant, this Court                                              C
      HELD : 1. The offence under S.272 IPC stood committed by the first
appellant on the very day he was found in possession of adulterated arrack.
The offence under S.272 was complete on introduction of the adulterant in ·
the food or drink, provided it was meant for sale, actual or likely.
                                                             [1Z7A, 126-8] D
      2. The first appellant having been in possession of adulterated
liquor, the offences under Ss.SS(a) and (i) of the Kerala Abkari Act stood
rightly prove.d against him. The scheme of the Abkari Act did not exclude
the unlicensed possessor of liquor, in permitting him rdulteration.
                                                            [128-C, 128-B]      E
      3.1 The first appellant had to be acquitted of the charge under S328
IPC in the absence of positive evidence that be administered the poisoned
liquor to. the deceased directly or indirectly with the necessary mens rea.
Important links in the prosecution case remained missing. [131-C, Dl
                                                                                F
     3.2 The finding of the trial court that the accused did not have guilty
knowledge of causing death cannot stop in that slide and take within its
arms hurt also. [131-B, C}

      4. S.l09 IPC could in no case be attracted and more so without a          G
charge to that effect put to th_e second appellant. The roles of the per·
petrator and abettor of the crime are different. When the direct involve-
ment ·of the second appellant could not be established, he could not be
taken to have 1\nswered the charge of abetment and convicted on that basis.
There would be serious miscarriage of justice to the accused causing great
prejudice to his defence, [13l·D, G, Fl                                         H
    124                 SUPREME COURT REPORTS (1994) SUPP. 4 S.C.R.

A        CR!¥1NAL APPELLATE JURJSDICflON: Criminal Appeal No.
    472 of 1990 etc.

         From the Judgment and Order dated. 9.4.90 of the Kerala High
    Court in Crl. A. No. 416 of 1985.

B         G. Ramaswamy, V J. Francies, Thomas Mathew for the Appellant in
    Crl. A. No.545!90

          E.M.S. Anam and C.C. Thomas for the Appellants in Crl. A. No.
    472/90.
c         M.T. George for the Respondent.

          The Judgment of the Court was delivered by

          PUNCBHI, J. These are two criminal appeals arising out of the
D   judgment and orders of the High Court of Kerala dated April 9, 1990
    passed in Criminal Appeal No. 416 of 1985. The respective appellants
    herein are Joseph Kurian, A-4 and Philip Jose, A-1 described as such in
    the courts below.

          These appeals arise out of a phase of sporadic incidents referred to
E in Kerala as the "Punalur Liquor Tragedy" in which certain persons died
  and others ~eceived injuries due to consumption of poisonous adulterated
  arrack, Methyl alcohol adulterated with methyl alcohol. Pursuant to wide
  spread rumours of poisonous arrack sales, the Circle Inspector of Police,
  Punalur on 19-2- 1981 raided a few pan shops in the town and seized small
F polythene pouches containing arrack kept for unauthorised sale supplied
  by Punalur arrack depot. Two cases were registered on the basis of the
  said recovery. The following day on 20th February, 1981, the Sub-Inspector
  of Police, Punalur effected a search of the arrack depot at Punalur con-
  trolled and managed by A -1 and took samples of arrack in order to have
G them tested by chemical analysis. Case under section 2721.P .C. and Section
  57(a) of the Kerala Abkari Act was registered. Two days thereafter, i.e. on
  22-2-1981, three persons, one Sreedharan Pillai and two others, were
  reported to have died allegedly due to consumption of adulterated arrack.
  Three cases were registered on account of the unnatural death of these
  persons. During the course of investigation of these cases conducted by the
H Circle Inspector of Police, Punalur, two more cases were registered.
                   JOSEPH KURIEN v. STATE [PUNCHHI, J.]                    125

              Pursuant to the registration of these related cases 10 accused A
      persons were arrested and the crimes investigated. Six cases were separate-
      ly put up for trial before the Court of Session but they were ordered to
      be trial jointly. At the trial, the prosecution produced as many as 91
      witnesses and 101 documents to establish its case. Finally the court of
      Session on October 29, 1985 found A-1 and A-4 guilty of offences punish- B
      able under sections 272 and 328 of I.P.C. as also for offences punishable
      under Sections 55(a) and 55(i) of the Kerala Abkari Act and imposed
      sentences of imprisonment on them therew1der. Accused nos. 2, 3, 6 and
      7 were found guilty for offences punishable under the Abkari Act and were
      imposed nominal sentences of fme only. The remaining four accused nos. C
      5, 8, 9 and 10 were found not guilty and were thus acquitted. The High
      Court on appeal by A-2, A-3, A-6 and A-7 confirmed the conviction and
       sentence of A-3, A-6 and A-7 and dismissed the appeal of A-2 as abated
       on account of his death. We have nothing to do now with the afore-referred
       to eight accused. Fate of A-1 and A-4 alone remains to be dealt with.
                                                                                  D
            The High Court confirmed the convictions and sentences of A-1 as
      imposed by the Court of Session. It however set aside the similar convic-
      tions and sentences of A-4 recorded by the Court of Session and instead
      convicted him under section 109 I.P.C. for having .tbetted the commission
      of offences punishable under sections 272 and 328 I.P.C. whereunder,        E
      without specificity, he was awarded rigorous imprisonment for a period of
      two years. It is in this form that these appeals are before us.

            The prosecution was able to prove not only by its own evidence but
      also by admissions of A-1 in his statement under section 313 Cr. P.C. That
      he was the person incharge of the liquor business_initially belonging to his
                                                                                   F
      father, which had been taken over by him in management. It has not been
      disputed that during the year 1980-81 A-1 had Abkari licences for vending
      arrack in more than one range and had also the licence for wholesale
      dealership in Indian made foreign liquor throughout the State. It is also
      not disputed any more that he was incharge and in control of the Punalur G
      Depot, even though the licencee was A-2, wherefrom arrack samples had
      been taken by the investigation on 20th February, 1981. It also stand
.·•   undisputed that these samples were found to be adulterated inasmuch as
      ethyl alcohol (arrack) was found to be adulterated with 2.64 per cent of
      methyl alcohol. Any procedural fault in the collection of the samples, in H
    126                   SUPREME COURT REPORTS [1994J SUPP. 4S.C.R.

A their despatch for analysis to the chemical examiner, in his analysis and the
    report thereon would now have to remain unchallenged because two courts
    below have trusted the seizure and have recorded the finding that the
    sampled arrack was adulterated with the poisonous substance known as
    methyl alcohol. We would now proceed on the footing that adulterated
B   arrack was found in the depot controlled and managed by A-1.

          The allegation of the prosecution further is that when the seizure of
    samples was made on 20-2-1981, A-4 was then the manager of the Punalur
    Depot. There is pointed evidence that when samples taken, A-4 was
    present. A-4 is even proved to have signed search list Ex. P-9. The plea of
C   A-1, and correspondingly that of A-4, that the later was only an appointed
    representative of A-4 to settle some labour disputes of the management
    and not in any managerial capacity at the Punalur Depot, was negatived by
    both the courts below and we find no reason to differ from that view that
    A-4 was so placed. We would therefore proceed on the footing that A-4
D   was then the Manager of the Punalur Depot.

          Section 272 of the Indian Pimal Code reads as follows :

             "272. ADULTERATION OF FOOD OR DRINK INTENDED
             FOR SALE - Whoever adulterates any article of food or drink so
E            as to make such article noxious as food or drink, intending to sell
             such article as food or drink, or knowing it to be likely that the
             same will be sold as food or drink, shall be punished with imprison-
             ment of either description for a term which may extend to six
             months, or with fine which may extend to one thousand rupees, or
F            with both."

    In order to establish that an offence under section 272 I.P.C. has been
    committed, the prosecution has to prove that the article involved was food
    or drink meant to be consumed by live persons, that the· accused adul-
    terated it; that such adulteration rendered it noxious as food or drink, and
G   that the accused at the time of such adulteration intended to sell such
    article as food or drink, or knew it to be likely that such article would be
    sold as food or drink. Now noxious rendering is making it poisonous or
    harmful or both. As is plain the offence is complete on introduction of the
    adulterant in the food or drink, provided it is meant for the purposes of
H   sale, actual or likely. That A-1 in particular keeping ap~ A-4, for the
              JOSEPH KURIEN v. STATE [PUNCHHI, J.]                       127

moment, was found to be in possession of adulterated arrack on 20th . A
February, 1981 would lead to the conclusion that the offence under Section
272 I.P.C. stood committed on that day itseJf. Likewise offence under
sections 55(a) and (i) of the Abkari Act can safely be concluded to have
been committed on 20th of February, 1981 itself. These provisions as are
relevant are reproduced below :
                                                                                B
       "55. FOR ILLEGAL IMPORT, ETC. -Whoever in contravention
       of this Act or of any rule or order made under this Act or any
       license of permit obtained under this Act.

        (a) imports, exports, transports, transits or possesses liquor or any   C
        intoxicating drug, or

       (b) xxxxxxxxxx
       (c) xxxxxxxxxx
       (d) xxxxxxxxxx
       (e) xxxxxxxxxx                                                           D
       (f) xxxxxxxxxx
       (g) xxxxxxxxxx
       (h) xxxxxxxxxx

        (i) sells liquor or any intoxicating drug; shalL on conviction before
        a Magistrate, be punished --                                            E
        (1) for any such offence, other than an offence falling under clause
        (d) or clause (e), with imprisonment for a term whiCh may extend
        to two years and with fine which may extend to five thousand
        rupees:                                                                 F
            Provided that in the absence of special and adequate reasons
        to the contrary to be mentioned in the judgment of the court,-

          (i) such imprisonment shall not be less than six months and fine
       shall not be less than one thousand rupees for a first offence; and      G
            (ii) such imprisonment shall be rigorous and shall not be less
        than one year and fine shall not be less than 1:\Vo thousand rupees
        for a subsequent offence;

        (2) For an offence falling under clause (d) or clause (e), with         H
    128                   SUPREME COURT REPORTS [1994] SUPP. 4 S.C.R.

A            imprisonment for a term which may extend to one year, or with
             fine. which may extend to two thousand rupees, or with both."

    .      Adulteration of liquor is prolubited under section 57 of the Abkari
    Act to a licensed vendor or manufacturer. Even so the scheme of the
    Abkari Act still does not exclude the unlicenced possessor of liquor, in
B    permitting him adulteration. This has barely to be mentioned to counter
     the argument raised on behalf of A-1 that he was not the licensee of
     Punalur Depot, the finding being that A-2 was. He was undoubtedly found
     to be in possession of liquor. It is on the footing that A-1 is not a not a
     licensee of arrack that section 55(a) and (i) have been attracted to hold
C    him · guilty for possession and sale of liquor to various outlets, licensed or
     unlicensed by the courts below. Thus these offences under section 272
     I.P.C. and sections 55(a) and (i) of the Abkari Act stood rightly proved
     against A-1 and this aspect of this case need not detain us any longer.

D         Section 328 of the Indian Penal Code reads as follows :

             "328. CAUSING HURT BY MEANS OF POISON ETC. WITH
             INTENT TO COMMIT AN OFFENCE - Whoever administers
             to or causes to be taken by any person any poison or any stupefying
             intoxicating or unwholesome drug, or other thing which intent to
E
             cause hurt to such person, or with intent to commit or to facilitate
             the commission of an offence or knowing it to be likely that he will
             thereby cause hurt, shall be punished with imprisonment of either
             description for a term which may extend to ten years and shall be
             liable to fine"
F
          In order to prove offence under section 328 the prosecution is
    required to prove that the subst~ce in question was a poison, ·or any
    stupefying, intoxicating or unwholesome drug etc, that the accused ad-
    ministered the substance to the complainant or caused the complainant to
G   take such substance, that he did so with intent to cause hurt or knowing
    it to be likely that he would thereby cause hurt, or with the intention to
    commit or facilitate the commission of an offence. It is , therefore, essential
    for the prosecution to prove that the accused was directly responsible for
    administering poison etc. or causing it to be taken by any person, through
H   another. In other words, the accused may accomplish the act by himself or
              JOSEPH KURIEN v. STATE [PUNCHHI, J.]                         li9

by means of another. ln either situation direct, reliable and cogent evidence A
is necessary. Now on that basis it has to be whether A-1 had any role to
play in directly administering to or causing to be taken the poisonous liquor
by Sreedharan Pillai deceased, who had purchased and consumed liquor
from a retail ship, with intent to cause hurt to him or knowing it to be likely
that it would c~use hurt to him. This has to be solved remaining cognizant B
that sections 272 and 328 are separate offences described in the Indian
Penal Code. On this aspect that trial Court in para 152 of its judgment
has observed as follows ;


        "The accused have been charged with the offence punishable under          C
        section 302 I .P .C. on the allegation that by adulterating arrack with
        a deadly poisonous substance viz. methyl alcohol, the accused
        committed an act, so imminently dangerous that is must in all
        probability cause death or such bodily injury as is likely to cause
        death; and by such act death was act_ually caused. I have found           D
        that Sreedharan Pillai mentioned earlier died as a result of con-
        sumption of poisonous arrack from Avaneeswaram shop owned by
        the contractors. Although Ramachandran Pillai and Sasidhanarn
        Pillai also have been proved to have died of methyl alcohol poison-
        ing, the evidence methyl alcohol from one of the outlets owned by
        the accused - contractors. The contractors who are in the field of        E
        sale of arrack have to be fixed with knowledge of the toxicity of
        meth)i alcohol Nonetheless it cannot be said that the accused or
        any of them knew that arrack mixed with small quanity of methyl
        alcohol was likely to cause death or serious bodily injury that is
        likely to cause death. The circumstances brought out in the evidence F
        in this case is low that a very large number of persons might have
        consumed poisonous arrack supplied from Punalur depot, but only
        relatively a small number of persons has suffered its ill effects
        noticeably. Therefore, I do not think that the evidence is sufficient to
        find that the accused, even accused 1 and 4 whom I have found to G
        be responsible for adulterating arrack, can be found guilty of having
        committed an act which comes within the purview of section '300
        Fourthly' of I.P.C. It follows that none of the accused can be found
        guilty of the offence punishable under section 302 I.P.C. or even the
        one punishable under section 304 I.P.C. (emphasis supplied)"             H
    130                  SUPREME COURT REPORTS [1994] SUPP. 4 S.C.R.

A The High Court on this aspect has barely observed at para 22 in its
    judgment as follows :

            "22. Accused 1 and 4 were found, guilty of offence punishable
            under sections 272 and 328 IPC and sections 55(a) and 55(i) of
B           the Abkari Act. It is proved beyond reasonable doubt that the 1st
            accused was the licensee and that he had been managing all affairs
            relating to the vending of arrack in Pathanapuram and
            Chadayamanagalam ranges. The prosecution has adduced satisfac-
            tory evidence to show that there was a depot at Punalur wherein
            arrack was stored in large quanity and the same was being dis-
c           tributed to various licensed and unlicensed shops of 1st accused.
            The 1st accused when questioned under section 313 Cr.P.C. was
            specifically asked regarding this aspect. In aiJswer to questions 82,
            84 and 85 the 1st accused admitted that he had been maintaining
            a depot at Punalur and the entire business was carried on by him.
D           The 1st accused owned all responsibility relating to the distribution
            of arrack in Pathanapuram .and Chadayamanglam ranges. At the
            time of examination of various witnesses, the defence specifically
            suggested that the polythene bags containing arrack were being
            distributed from other ranges but there is no direct evidence to
E           that effect. However, it is proved beyond all reasonable doubt that
            to the arrack shop maintained by the 1st accused near Avanees-
            waram Railway Station, arrack from the Punalur depot was sup-
            plied. It is also proved that this arrack was poisoned with methyl
            alcohol. It is proved that the 1st accused was instrumental in
F           adulterating the alcohol supplied from the Punalur depot. It is also
            proved that the 1st accused was responsible in distnbuting this
            arrack to the arrack shop near Aveeswaram Railway Station and
            thereby caused poisoned arrack to be taken by the consumers and
            in that way Sreedharan Pillai, who consumed alcohol, died as a
G           result of the poisoning. Therefore, the 1st accused has been rightly
            found guilty of offence punishable under sections 272, 328 IPC and
            sections 55(a) and 55(i) of the Abkari Act."

         As it appears both the fin~ings of the Trial Judge as also by the High
H   Court are somewhat vague an confusing. The Trial Court observed, as is
              JOSEPH KURIENv. STATE [PUNCHHI,J.)                       131
evident from the emphasised portion, that it cannot be said that the A
accused or any of them knew that arrack mixed with small quantity of
methyl alcohol (2.64% as found by the chemical analyst) was likely to cause
death or serious bodily injury that is likely to cause death. On this finding
applicability of Section 302 or even that of Section 304 I.P.C. has been ruled
out. This finding on the fact situation is open to doubt. If the finding be B
correct that the accused did not have guilty knowledge of causing death or
of likelihood of causing death or of serious bodily injury likely to cause
death, how could the guilty knowledge stop in that slide or grading not
coming down to take within its arms hurt also. The act of the accused in
adulterating liquor per se, as the law then stood sans amendments, would C
not attract the provision of section 328 of I.P.C. unless there is positive
evidence that A-1 administered the poisoned liquor directly or by Sreed-
haran, deceased indirectly caused it to be taken by Sreedharan indirectly
with the necessary intent and mens rea. This view of the learned Trial
Judge as confirmed by the High Court does not appear to us to be sound
in the back drop of the death actually occurring. But since it has taken that D
view it cannot stop short of hurt and so must slip down to a fall downright
Important Jinks in the prosecution case on this particular remain otherwise
missing. A-1 would thus have to be acquitted of the charge under section
328 IPC in carrying out the findings of the High Court to their logical end.
                                                                              E
      We would digress a little and shift over to the case of A-4. The
High Court in paragraph 24 of its judgment has arrived at the conclusion
to convict A-4 for the offence under section 109 by the following
reasoning:
                                                                              F
        "24. The 4th accused has been found guilty of offence punjshable
        under sections 272, 328 IPC and sections 55(a) and 55(i) of the
        Abkari Act. Even according to the prosecution, the 4th accused is
        an employee of the 1st accused. There is no direct evidence to show
        that 4th accused mixed ethyl alcohol with methyl alcohol. If at all G
        he had done such thing it would have been pursuant to the direction
        of the Jst accused. In the absence of direct evidence regarding the
        involvement of 4th accused, his conviction for the offence punishable
        under sections 272 and 328 /PC is not sustainable. However, there
        is overwhelming evidence to the effect that he was an abettor and he H
    132                   SUPREME COURT REPORTS [1994] SUPP. 4 S.C.R.

A           was mainly responsible for mixing ethyl alcohol with methyl alcohol.
            Hence, he can be convicted for the offence punishable under section
            109IPC. Therefore, the 4th accused is found guilty of offence for
            having abetted the commission of offence punishable under section
            272 and 328 IPC. It is not proved whether he was in fact personally
B           present at the time of the action of mixing ethyl alcohol with
            methyl alcohol. However, it is clear that he was also responsible
            for committing this act. Therefore, the conviction of the 4th accused
            for the offenc~ punishable under sections 272 and 328 !PC and
            sections 55(a) and 55(i) of the Abkari Act is set aside and he is
c           found guilty of offence punishable under section 109 !PC for having
            abetted the commission of offence punishable under sections 272
            and 328 !PC."

                                                            (emphasis supplied).

D         The emphasised findings show that the High Court in the same
    breath has irreconcilably been inconsistent with regard to the participation
    of A-4 in the mixing of ethyl alcohol with methyl alcohol. Going by the
    High Court findings, section 109 IPC could in no case be attracted and
    more so without a charge to that effect put to A-4 to plead at the trial.
E   Section 109 IPC is by itself an offence though punishable in the context of
    other offences. A-4 suffered a trial for substantive offences under the
    Indian Penal Code and Abkari Act. When his direct involvement in these
    crimes could not be established, it is difficult to uphold the view of the
    High Court that he could lopsidedly be taken to have answered the ch<trge
F   of abetment and convicted on that basis. ~ere would, as is plain, be
    serious miscarriage of justice to the accused in causing great prejudice to
    his defenoe. The roles of the perpetrator and abettor of the crime are
    distinct, standing apart from each other. The High Court was thus in error
    in employing section 109 IPC to hold A-4 guilty. We thus set aside the
    conviction of A-4 and orher his acquittal on all charges.
G
          Reverting back to the case of A-1, it needs additionally to be said
    that he was in possession of adulterated liquor, which liquor was not in the
    condition as released to licensee A-2 by the sanctioned breweries. In spite
    of adulteration, the liquor remained as liquor. Section 2 (10) of Abkari Act
H   defines 'liquor' to include sprits of wine, methylated spirits, spirits, wine,
              JOSEPHKURIENv. STATE [PUNCHHI,J.J                       133

toddy, beer, and all liquid consisting of or containing alcohol. Methyl A
alcohol answers at least the description of being a liquid consisting of or
containing alcohol. As an adulterant when it went to join ethyl alcoho~
the compounded substance would remain liquor as such and its sale to be
sale of liquor, coming within the mischief of section 55(a) & (i) of the
Abkari Act. A-1 admits to be in the control of Punalur Depot, wherefrom B
the adulterated samples were taken. He could not thus have escaped the
liability for having committed the aforesaid offences because it has been
found as a fact that various authorised and unauthorised dealers had sold
poisonous pouches of arrack which were supplied for sale from the
Punalur Depot, and hence by A-1. Thus his conviction under section 55(a) C
and (i) of the Ab.kari Act was rightly maintained by the High Court.

       In the absence of any material on the record, sentences of A·l under
section 55 of the Abkari Act would have to be governed by sub-clause (i)
of Clause 1 thereof, whereunder imprisonment of either description is
imposable being not less than six months together with a fine not less than D
one thousand rupees. When the main charge against A-1 under section 328
IPC has failed , we do not see any reason to maintain the sentence of A-1
for the aforesaid two offences more than the minimum prescribed. We,
therefore, altel'the sentences under the Abkari Act to be six months simple
imprisonment and payment of Rs. 1000 fine, in default further simple E
impri$onment for one month, under each count. With regard to the sen·
tence under section 272 IPC, some impression has been created that the
courts. below had wrongly awarded two years' rigorous imprisonment to
A-1 whereas the maximum provided thereunder is six months imprison-
ment of either description. The impression is misfounded. The Trial Court
                                                                             F
had indeed imposed rigorous imprisonment for six months. The High
Court has not been specific on this score. Thus for conviction under section
272 IPC also, we convert the imprisonment to be simple in nature. All the
three sentences of simple impriSonment of six months shall run concurrent-
ly. We leave it open to A-1 to move the State Government for relief under
sub-clause (d) of Section 433 of the Code of Criminal Procedure for G
commutation and conversion to fine. It will be for the State Government
to consider granting relief to A-1 or not. We on our part would go by the
letter of law.

     .BY the foregoing reasons, Criminal Appeal No. 472 of 1990 of Joseph H
    134                  SUPREME COURT REPORTS [1994] SUPP. 4 S.C.R.

A Kurian A-4 is allowed. He is acquitted of aU the charges. Criminal Appeal
    No.545 of 1990 preferred by Philip Jose, A-1 is allowed in part inasmuch
    as conviction and sentence under section 328 IPC is set aside, his convic-
    tion under section 272 IPC is maintained whereunder he is substitutely
    awarded six months simple imprisonment, his convictions under section
B   55(a) and (i) of the Abkari Act are maintained whereunder, he is sub-
    stitutely awarded six months simple imprisonment and a fine of Rs. 1000,
    in default of payment further simple imprisonment of one month, under
    each count; and sentences under all counts are to run concurrently.

          In this manner these two appeals are disposed of.
c S.M.                                                        Appeal allowed.