Supreme Court of India
P.N. KRISHNA LAL AND ORS. ETC. ETC.versusGOVT. OF KERALA AND ANR. ETC. ETC.
- Citation
- 1994 INSC 524
- Decided
- 17 November 1994
Holding
Sections 57A and 57B of the Kerala Abkari Act, as introduced by the 1984 amendment, are constitutionally valid and the reverse‑onus provisions do not violate Articles 14, 20(3) or 21.
Summary
The appellants, licensees of arrack and foreign liquor shops, were convicted under sections 57A and 57B of the Kerala Abkari Act (as amended in 1984) for mixing or permitting the mixing of noxious substances such as methanol with liquor, or for failing to take reasonable precautions, and for possessing adulterated liquor. They challenged the constitutional validity of these provisions on the grounds that the State legislature lacked competence, that the President’s assent was not obtained for the parts impinging on the Evidence Act, IPC and CrPC, and that the statutory reverse‑onus provisions violated Articles 14, 20(3) and 21 of the Constitution. The Supreme Court held that the amendment fell within Entry 8 (with Entries 64 and 65) of List II, that the State legislature was competent, and that the President’s general assent (gazetted on 1 December 1984) rendered the provisions valid even if they incidentally conflicted with central statutes. The Court further ruled that the burden‑of‑proof provisions in s.57A(5) are a permissible statutory presumption and do not offend the Constitution, and that the death‑penalty option and the compensation scheme under s.57B are constitutionally valid. Consequently, the appeals were dismissed.
Issues considered
- The State legislature's competence to enact sections 57A and 57B of the Kerala Abkari Act under the Constitution’s Seventh Schedule.
- Whether the President’s assent was required for the provisions that incidentally modify the Indian Evidence Act, IPC and CrPC, and if the assent obtained suffices.
- Whether the reverse‑onus provision in s.57A(5) violates Articles 14, 20(3) and 21 of the Constitution.
- Whether the mandatory death‑penalty provision in s.57A(1)(ii) is disproportionate and unconstitutional.
- Whether the compensation provision in s.57B infringes the right to equality or due process.
Legislation cited
- Code of Criminal Procedure, 1973s. 315, s. 342-A
- Constitution of Indias. Article 14, s. Article 19, s. Article 20(3), s. Article 21, s. Article 246(3), s. Article 254(2)
- Indian Evidence Act, 1872s. 105, s. 106, s. 5
- Indian Penal Code, 1860s. 299, s. 300, s. 304A
- Kerala Abkari Act, 1077 (as amended by Abkari (Amendment) Act 21 of 1984)s. 57A, s. 57B
Subjects
constitutional validityreverse onusburden of proofadulterated liquorKerala Abkari ActArticle 14Article 20(3)Article 21death penaltycompensationpith and substancelegislative competencepresumption of guilt
Judgment
A P.N. KRISHNA LAL AND ORS. ETC. ETC.
_v.
GOVT. OF KERALA AND ANR. ETC. ETC.
NOVEMBER 17, 1994
B [K. RAMASWAMY AND N. VENKA TACHALA, JJ.]
Kera/a Abkari Act I of 1077 as amended by Abkari (Amendment) Act
21of1984.
Sections 57A and 57B-Adulteration of liquor or intoxicating drug
C with noxious substance-Provisions for prosecution of offenders and
punishment-Held, valid
Constitution ofIndia
Articles 246 (3), 254 (2) Proviso, Seventh Schedule, List II, Entries 8,
64, 65-Legislature ofState of Kera/a enacting Abkari (Amendment) Act 21
D
of 1984-Some provisions incidentally trenching into provisions of
Evidence Act, !PC and Cr. P.C-Held provisions of Amendment Act are
valid and would prevail over relevant provisions ofthe Central enactments.
Articles 14, 19, 20 (3), 21-Under Abkari (Amendment) Act, all
, E offenders are treated as a Class-There is reasonable nexus between
offence created and the case to be dealt with- The procedure, presumption .
and burden of proof placed on accused are not unjust, unfair or
unreasonable-There is no imidious discrimination on proof of charge,
punishment, and prescription of damages-The provisions are not violative
ofArticles 14, 19, 20 (3) and 21.
F Articles 19 (/) (g) and 298-Manufacture, possession, trade and
business ofliquor and intoxicating drug-Held, is privilege ofState-It is a
regulated trade or business.
Criminal law:
G Indian Evidence Act 1872/Kerala Abkari Act 1 of 1077 as amended by
Abkari (Amendment) Act 21of1984.
Sections 105, 106/s, 57A (5)-Provisions regarding presumption and
placing burden ofproof of certain facts on accused-Held, are not unjust,
unfair or unreasonable offending Artic_les 14, 20 (3) or 21 of the
H Constitution.
526
P.N. KRISHNA LAL. v. GOVT. OF KERALA 527
Interpretation of Constitution A
Doctrine of pith and substance-Discussed and applied Doctrine of
reading down-Held; not applicable to sub-s. (5) of s. 57 A ofAbkari Act I
of /077.
The appellants, who were licensees of arrack or Indian made B
foreign liquor retail shops or their employees, were charged under sub-
sections (1) to (3) of section 57A of Kerala Abkari Act l of J.077, for
having mixed or permitted mixing of noxious substance with liquor or
for having failed to take reasonable precautions to prevent such mixing
or for being in possession of such adulterated liquor with the
knowledge that on consumption it was likely to endanger human life or C
cause grievous hurt or cause death. The appellants denied the charges.
Their case was that they did not mix noxious substance nor did they
permit mixing of any ·noxious substance with arrack or Indian made
foreign liquor; and since the liquor was supplied to them by the
agencies controlled by the State or regulated under the Act, there was
no occasion for them to take any reasonable precaution to prevent such D
mixing or being in possession of adulterated liquor. They challenged
the constitutionality of section 57A and 57B of the Act before the High
Court, which upheld the provisions. Aggrieved, the appellants filed the
appeals by special leave.
It was contended by the appellants that the State legislature was E
not competent to legislate the Abkari (Amendment) Act 21 of 1984
introducing sections 57A and 57B to the Kerala Abkari Act and the
same was void inasmuch as the State Government did not expressly
obtain assent of the President of India with reference to any of the
provisions of the Evidence Act, the IPC and the Code of Criminal F
Procedure; provision of section 57A of the Act placing the burd,en of
proof on the accused was violative of fundamental rights under Articles
14, 20 (3) and 21 of the Constitution; conviction for offences under s.
57A for mere possession of arrack or intoxicated drug, without proof
by the prosecution of the intention of the alleged offender that the
liquor was mixed with noxious substance, was contrary to the settled G
principles of criminal jurisprudence and per se arbitrary, unfair and
unconsionable violating Articles 14 and 21 of the Constitution; the
extreme penalty of death under section 57A (1) (ii) without proof of
intention or knowledge to cause death, which is an essential pre-
requisite ingredient both for culpable homicide or murder defined in
sections 299 and 300 IPC, violated the rights gauranteed under Articles H
528 SUPREME COURT REPORTS [1994] SUPP. 5 S.C.R
A 14 and 21 of the Constitution and was grossly disproportionate to the
proved guilt of the accused; and that compensatory justice envisaged in
section 57B was obnoxious to fair trial.
Dismissing the appeals, this. Court
B HELD: 1.1. Sections 57A and 57B of Kerala Abkari Act 1 of 1077
as introduced by the Abkari (Amendment) Act 21 of 1984 are valid.
The scheme of the Act and the Amendment Act is a consistent whole,
regulating production, manufacture, possession, transport, purchase or
sale of intoxicating liquors. The Amendment Act was enacted to
prohibit mixing or permitting to mix methynol in arrack or intoxicated
c drug or failure to take reasonable precautions to prevent acts or
omissions, of mixing methynol in arrack or intoxicated drug or to be in
possession thereof with knowledge of its adulteration or to prevent
deleterious effect on the health of the consumers or to prevent grievous
hurt to human beings or their death. As a part of it, the burden of
proof of the ingredients of the offence being within the special
D knowledge of the accused has also been laid on the accused person.
Therefore, though incidentally it trenches into some of the provisions of
. the Evidence Act, the Indian Penal Code and the Code of Criminal
Procedure, in its pith and substance, it is an integral scheme of the Act,
which falls within Entry 8 read with Entries 64 and 65 of List II of the
7i:h Schedule to the Constitution. Under Article 246 (3), the· State
E Legislature was competent to enact the Amendment Act. Therefore, the
assent of the President is not necessary. (541-C-E)
1.2. Even assuming that some of the provisions incidentally
trespass into the field of operation of the.:central provisions falling in
the Concurrent List, which empower both the Parliament and the State
F Legislature to enact the law, the assent given by the President made
sections 57A and 57B valid. The gazette ._otification of the Amendment
Act shows that the President has given his assent to the Amendment
Act on December 1, 1984. The assent of the President in .general terms
is sufficient compliar.ce with proviso to clause (2) of Article 254 of the
G Constitution, and by its operation, the Amendment Act prevails over
the relevant provisions in the Indian Evidence Act, IPC and the Code of
Criminal Procedure in relation to the State ofKerala. (541-G-H)
1.3. It is not the requirement of law under Article 254 that the
State Government should seek assent of the. President in respect of each
H and every specified provisions of the Central Act or .Acts in respect of
P.N. KRISHNA LAL. v. GOVT. OF KERALA 529
which there would be inconsistency or repugnancy in the operation of A
the Central provisions and the State enactment. It is enough that once
the assent of the P•·esident is sought and given to the State amendment,
though to some extent inconsistency or repugnancy exists between any
provision, part or parts of any Act or Acts of any Central statutes, the
repugnancy or inconsistency ceases to operate in relation to the State in
which assented State enactment operates. (542-A-B) B
A.S.Krishna v. State of Madras, [1957) SCR 399 and Gram Panchayat
of Village, Jamalpur v. Ma/winder Singh, (1985) 2 Supp SCR 28,
followed.
Minoo Framroze Balsara v. ·Union of India, AIR (1992) Bombay 375 C
distinguished.
S.Kanagaraj v. Government of Tamil Nadu, AIR (1991) Madras 182
disapproved and Shri Ji/ubhai Nar. Bhai Khachar v. State of Gujarat and
Anr., JT (1994) 4 SC 473, referred to.
2.1. Manufacture, possession, trade and business of liquor and D
intoxicating drug is the privilege of the State and no one has a right de .
hors the Act, for manufacture, possession or sale of them except on a
licence granted in that behalf by th~ competent officer in accordance
with the porvisions of the Act and the rules made thereunder and
according to the conditions of licence. Thus it is a regulated trade or
business. (535-F) E
2.2. Under the Act . the State has absolute right to regult.te
production, transport, storage, possession and sale of liquor or
intoxicating drug. The Act prohibits mixing of noxious substance with
liquor or possession thereof. The State, therefore, possesses the right of
complete control on all kinds of intoxicants. Equally none has freedom F
or fundamental right to do business in adulterated articles of food.
Cognizant to the contemporaneous large scale deaths or grievous hurt
to the consumers of adulterated liquor mixed with noxious substance,
the Amendment Act aims to prevent their recurrence and accordingly
it came to be made. (552-B-D)
G
2.3 Dealing in liquor inherently pernicious or dangerous goods
which endanger$ the community or subversive of morale, is within the
legislative competence under the Act. The State has thereby the power
to prohibit trade or business which is injurious to the health and
welfare of the public and the elimination and exclusion from the
business is inherent in the nature of liquor business. The power of the H
530 SUPREME COURT REPORTS [1994] SUPP. 5 S.C.R
A legislature to evolve the policy and its competence to raise presumptive
evidence should be considered from this scenario. (552-F-G)
3.1. Sub-section (5) of s. 57 A of the Act, because of its non-obstante
'clause makes inapplicable the relevant provisions in the Indian
Evidence Act regarding proof of a fact, presumption and burden of
B proof. Notwithstanding the bur.den of proof of a fact or disproof or
non-proof of the fact envisaged in the Evidence Act, the onus of proof
thereof though normally on the prosecution, by operation of sub-
section (5) special rule of proof and its burden has been placed on the
person prosecuted for the offences mentioned in sub-sections (1), (2)
and (3) of s. 57A as the facts are within his knowledge. Al! the accused
C under sub-sections (1), (2) and (3) of s. 57A are treated as a class and
there is 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 injust, unfair or unreasonable offending Articles
21and14 of the Constitution. It also does not violate Article 20 (3).
(545 DE; 572 A-B)
3.2. Where a person is prosecuted for an offence. under sub-section
(1) or (2) of s. 57A of the Act, the burden of proof that he has not mixed
or permitted to mix\~oxious substance or any other substance with the
liquor or the intoxicated drug or, as the case may be, omitted to take
reasonable precaution to prevent the mixing of any noxious substance,
E or any other substance falling in sub-sections (1) and (2) of s. 57A with
any liquor or intoxicating drug shall be on him; and when a person is
prosecuted for an offence under sub-section (3) it places the burden on
him to prove that he did not have knowledge that such noxious
substance or any other substance was mixed with such liquor or
intoxicating drug found in his possessiou. In all these cases, the
F .prosecution has to prove that the arrack or intoxicated drug contained
noxious substance or any other substance; and its consumption
endangered human life or. caused grievous hurt or death or other
disability to the consumer; or that the accused was in possession of
adulterated arrack or intoxicating drug and it was an adulterated one
with noxious or other substance. On proof thereof the operation of sub-
G section (5) comes into play, and its non obstante clause takes out the
rigour from the applicability of the provisions of the Evidence Act ..and
the Code of Criminal Procedure. (545 BC; E-H; 546 A-B)
3.3. Even under general criminal jurisprudence sections 105 and
106 of the Evidence Act place a part of the burden of proof on the
H accused t<> prove facts which are within his knowledge. When the
P.N. KRISHNA LAL. v. GOVT. OF KERALA 531
prosecution establishes the ingredients of the offence charged, the A
burden shifts on to the accused to prove certain facts within his
knowledge or exceptions to which he is entitled to. Based upon the
language in the statute the burden of prcof varies. However, the test of
proof of preponderance of probabilities is the extended criminal
jurisprudence and the burden is not as heavy as on the prosecution.
(560-A-B) B .
Sajjan Singh v. State of Punjab, [1964) 4 SCR 630 and K.
Veeraswamy v. Union of India, (1991) 3 SCC 655 and Sanjav Dutt v. The
State through C.B.l [1994) 5 SCC 410, followed.
Men/ca Gandhi v. Union of India, [1978] 1 SCR 568 and A.S. Krishna C
v. State of Madras, [1957] SCR 399; State of Maharashtra v. Wasudeo
Ramachandra Kaidalwar, [1981) 3 SCR 675; Kali Ram v. State of
Himachal Pradesh~ [1974) 1 SCR 722; S.L. Goswami v. State of Madhya
Pradesh, [1972) 2 SCR 948; V.D. Jhangan v. State of Uttar Pradesh,
[1966] 3 SCR 736; C.l Emden v. State of Uttar Pradesh, AIR (1960) SC
548; Dhanvantrai Balwantrai Desai v. State of Maharashtra, AIR (1964) D
SC 575; Harbhajan· Singh v. State of Punjab, (1965) 3 SCR 235; C.S.D.
Swamy v. The State, [1960) 1 SCR 461 and Shambu Nath Mehra v. State of
Ajmer, (1956) SCR 199, referred to.
Timothy F. Leary v. U.S., (395) US 6, 23 Law, Ed. 2nd, 57; Herman
Solm v. Jerry Buckley Helm, (463) US 277 (1983) 77; County Court of E
Ulister, New Yord v. Samuel Allen, 442 US 140 (1979), 60 Law, Ed. 2nd,
777; Barnes v. United States, 412 US 837 (1973), 37 Law Ed. 2nd, 381;
James Turner v. United States, 396 US 398 (1970) 24 L. Ed. 2nd, 610;
United States v. Gainey, 13, Law Ed. 2nd p. 659 (1965); Morrison v.
California, 18 Law Ed. (1933); Ed. Tumedy v. State of Ohio, (71) L. Ed.
510; Que~n v. Sin Yau-ming, [1992) 1 Hong Kong Criminal Law Reports F
p~ .127; l~uis Beaver v. The Queen, (1957) SCR 531; Queen v. Oakes, 26
D.L.R. (4th) 200; Attorney General of Hong Kong v. Lee Kwong-Kut,
(1993) W.L.R, 329; Mok Wai Tak and Anr. v. The Queen, (1990) 2 A.C.
333; Regina v. Hunt (Richard), 1987 A.C. 352; Ong Ah Chuan v. Public
Prosecutor, (1981) A.C. 648; Reg. v. Edwards, (1975) Q.B. 27; Jayesena
v. The Queen, (1970) A.C. 618, Mancini v. The Director of Public G
Prosecutions, (1942) A.C. 1 and Wo/lmington v. Director of Public
Prosecutions, (1935) A.C. 432, referred to.
4.1. The provision of imposition of the death penalty as an
alternative punishment for murder cannot be said to be unreasonable
and it is in the public interest. It, therefore, neither violates Article 21, H
532 SUPREME COURT REPORTS (1994) SUPP. 5 S.C.R
A nor ethoes of Article 19 of the Constitution. It is also not in violation of
Article 6 of the International Covenant on Civil and Polltical Rights.
(569-G)
Bachhan Singh v. State of Punjab, [1980) 2 SCC 684 and Jagmohan
Singh v. State o/V.P., [1973) 2 SCR 541, referred to.
B 4.2. The doctrine of reading down (of sub-section (5) of s. 57A) is
not applicable to the situation arising under the Amendment Act. The
question of intention and the distinction between murder and culpable
homicide under section 300 and 299 IPC and the doctrine of negligence
and culpability under section 304A IPC are not relevant. The question
of intention bears no relevance to an offence under section 57A and
c equally of culpability or negligence. (571-B-q
4.3. The accused charged for offences under s. 57A of the Act stand
as a class and therefore, there is no inviduous discrimination on the
proof of the charge for the punishment envisaged under the relevant
provisions of section 57 A or 57B. It is a reasonable classification to
D subserve the social good. Thereforet- these provisions are not violative
of Articles 14, 20 (3) and 21 of the Constitution. (572-D)
4.4. It is seen that mixing or permitting to mix noxious substance or
any other substance with liquor or intoxicated drug or omission to take
reasonable precaution or being in possession without knowledge of its
E adulteration for the purpose of unjust enrichment would be without
any regard for loss of precious human lives or grievous hurt. The
legislature has noted the inadequacy and deficiency in the existing law
to meet the menace of adulteration of liquor etc. and provided for new
offences and directed with mandatory language protection of the health
and precious lives of innocent consumers. While interpreting the law,·
F 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. Tbese special provisions are to some
extent harsh and are a departure from normal criminal jurisprudence.
But it is not uncommon in criminal statutes. It is a special mode to
G 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~
(571-D-F)
4.5. The trial judge has been given wide discre~ion to impose the.
sentence based on fact s.ituation and circumstances in each case subject .
H to· minimum sentence prescribed under the Act. The object of the
P.N. KRISHNA LAL. v. GOVT. OF KERALA [K. RAMASWAMY, J.) 533
Amendment Act is to put down the menace of adulteration of arrack A
etc. by prescribing deterrent sentences. Individual cases like the victim
suffering from rashes by consumption of adulterated arrack etc. may
be an individual hypothetical case. The statute cannot be struck down
on hypothesised individual case. Under the Code, the accused has the
opportunity before being imposed sentence, to adduce evidence even on
sentence and has an opportunity to plead any mitigating circumstance B
in his favour and it would be for the trial judge to consider on the facts
situation in each case on the sentence to be imposed. (571-G-H, 574-A)
R.C. Cooper v. Union of India, [1970] 3 SCR 530 and Kartar Singh v.
State of Punjab, [1994) 3 SCC 569 at 715 and Mithu, Etc. v. State of
Punjab Etc. Etc., [1983) 2 SCR 690, referred to. C
5. Compensation under section 57B is in the nature of liquidated
damages under tort to mitigate and relieve from the hardship of the
victim or next of kin. The legislature thought it expedient to provide the
minimum of course, subject to law of damages by the aggrieved person
or next of kin at the civil action. Therefore, prescription of the damages D
does not violate either Article 14 or 19. (572-D)
6. In view of the Constitution Bench decision of this Court
upholding the constitutional validity of similar provision of TADA
regarding bail, the validity of sub-section (4) of s. 57A is no longer res
integra. It is, therefore, valid and its validity no longer remains
assailable. E
Kartar Singh v. Union of India, [1994) 3 SCC 569, followed.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 565 of 1994
Etc. Etc.
F
From the Judgment and Order dated 10.12.93 of the Kerala High Court
in O.P. No. 4637of1989.
Altaf Ahmed, Additional Solicitor General, A. Raghvir, R.F. Nariman,
A.S. Nambiar, V.K. Beeran, P.C. Chacko, K.V. Sreekumar, N. Sudhakaran,
E.M.S. Anam, B.V. Deepak, G. Parkash, K.M.K. Nair, Sudarsh Menon,
T.G.N. Nair, M.A. Firoz, Roniychacho, Roy Abraham, Sudhir Gopi and G
Ms. Baby Krishna for the appearing parties.
The Judgment of the Court was delivered by
K. RAMASWAMY, J. Leave granted in S.L. Ps. No. 10248, 9079,
13769/94 and S.L.P. No .................. (CC No. 25558/94). H
534 SUPREME COURT REPORTS [1994] SUPP. 5 S.C.R
A A Division Bench of the Kerala High Court, by its common judgment
dated December 10, 1993 in O.P. No. 4637/89 and batch since upheld the
constitutionality of ss. 57A and 57B inserted by the Abkari (Amendment)
Act 21 of 1984 in the Amendment Act into the Abkari Act l of 1077 (for
short 'the Act'), the correctness of that judgment is questioned in this
appeal.
B
The facts lie in a short compass:-
The appellants are licencees of arrack or Indian made foreign liquor
retail shops or their employees. They have been charged for offences
punishable under one or other sub-ss. ( l) to (3) of s. 57A for having mixed
c or permitted mixing of noxious substance with liquor or for having failed to
take reasonable precautions to prevent such mixing or for being in
possession of liquor in which such a noxious substance has· been mixed
with the knowledge that arrack or Indian made foreign liquors were mixed
with methanol (methyl alcohol), a substance which, on consumption, is
likely to endanger human lite or causes grievous hurt to human beings or
D causes death. Therefore, when the appellants were charged for all or any of
the offences in one or the other case, before competent criminal courts, the
constitutionality of the said two provisions of the Amendment Act was
assailed.
It is the case of the appellants that though they are dealers in arrack or
E Indian made foreign liq:uors either selling in retail shops or under their
management, such arrack or Indian made foreign liquor was being supplied
by the appropriate agencies controlled by the State or regull!-ted under the
Act. They secured the supply only from those recognised sources in sealed
bottles or containers. They did not mix noxious substance nor permitted
mixing of any noxious substance with arrack or Indian made foreign liquor.
F
As such, there was no occasion for them to take any reasonable precaution
to prevent such mixing or for being in possession of such arrack or liquor
mixed with noxious substance with such knowledge and that, therefore,
they had not committed all or any of the offences. However, before being
proceeded with the trial of the offences they filed writ petitions under Art.
G 226 challenging the constitutionality of the aforesaid two provisions, which
a~ said earlier, were upheld by the High Court.
Section 3 (I 0) of the Act defines 'liquor' as including spirits of wine,
methylated spirits, spirits, wine, toddy, beer, and all liquids consisting of or
containing alcohol. Section 3 (14) defines 'intoxicating drugs' means (i) the
H leaves, small stalks and flowering or fruiting tops of the Indian hemp plant
P.N. KRISHNA LAL. v. GOVT. OF KERALA [K. RAMASWAMY, J.] 535
(Connabis Sativa L), including all fonns known as bhang, siddhi or ganja; A
(ii) Charas, that is, the resin obtained from the Indian hemp plant, which
has not been submitted to any manipulations other than those necessary for
packing and transport; (iii) any mixture, with or without natural materials,
of any of the above fonns of intoxicating drug, or any drink prepared
therefrom; and (iv) and other narcotic substance which the (Government)
may, by notification, declare to be an intoxicating drug, such substance not B
being opium, coca leaf, or a manufactured drug, as defined in s. 2 of the
Dangerous Drugs Act, 1930. Sections 6 to 11 in Part III regulate import,
export and transport of liquor or intoxicating drug by a pennit issued in that
behalf. Part IV deals with manufacture, possession and sale of liquor or
intoxicating drug in accordance with the provisions of the Act. (Vide
Sections 12A and 12B). Sub-s (2) of s. 12B expressly postulates that "no C
person shall possess any preparation containing liquor or intoxicating drug,
other than a medicinal preparation for the bona fide treatment, mitigation or
prevention of disease in human beings or animals, in excess of the quantity
specified by the Commissioner." Section 13 prohibits possession of liquor
or intoxicating drug in excess of the prescribed quantity. Section 13A is a
facet thereof. Section 15 prohibits sale without licence of liquor or D
intoxicating drug. Section l 8A gives power to the Government to grant
exclusive privilege or other privileges to manufacture or supply by
wholesale or of selling by retail or of manufacturing or supplying by
wholesale and selling by retail any liquor or intoxicating drugs within the
specified local area, the amount of rental in that behalf fixed from time to
time and the collection thereof, in addition to the duty or tax leviable under E
ss. 17 and 18. Chapter VI and VII prescribe the forms and conditions of
licenses, etc. Chapter VIII deals with the powers and duties of officers
including searches and seizures of the offending contra-band and the
follow-up actions in furtherance thereof. It is thus clear that manufacture,
possession, trade and business of liquor and intoxicated drug is the F
privilege of the State and no one has a right de hors the Act, for
manufacture, possession or sale of them except on a licence granted in that
behalf by the competent officer in accordance with the provisions of the
Act and the rules made thereunder and according to the conditions of
licence. In other words, it is a regulated trade or business.
G
Chapter IX deals with penalties. Sections 55 to 57 deal with offences
committed under the Act. Section 57, in particular, prohibits adulteration,
etc., by licensed vendor or manufacturer of the liquor or intoxicating drug.
Clause (a) excludes from its operation of the offence, namely, mixing or
permitting mixing of any liquor or intoxicating drug, sold or manufactured
by the licensed vendor or manufacturer with any other noxious drug or any H
536 SUPREME COURT REPORTS [1994] SUPP. 5 S.C.R
A foreign ingredients likely to add to its actual or apparent intoxicating
quality or strength, or any article prohibited under the Act from its purview.
Abkari Ordinance 37 of 1983 was issued by the Governor on November l,
1982 bringing on statute ss. 57A and 57B and the Ordinance was replaced
by the Amendment Act with retrospective effect from the said date.
Sections 57A and 57B read thus:
B
"57-A. For adulteration of liquor or intoxicating drug with
noxious substances, etc. (i) 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 life or to cause grievous hurt to human beings, with
c any liquor or intoxicating drug shall, on conviction, be
punishable.
(i) If, as a result of such act, grievous hurt is caused to any
person, with imprfoonment for a term which shall not be
less than two years but which may extend to imprisonment
D for life, and with fine which may extend to fifty thousand
rupees;
(ii) if, as a result of such act, death is caused to any person,
with death or imprisonment for a term which shall not be
less than three years but which may extend to imprisonment
E
for life, and with fine which may extend to fifty thousand
rupees;
(iii) in any other case, with imprisonment for a term which
shall not be less than one year, but which may extend to ten
F years, and with fine which may extend to twenty-five
thousand rupees;
Explanation- For the purposes of this Section and Section
57B, the expression "grievous hurt" shall have the same
meaning as in Section 320 of the Indian Penal Code, 1869
G (Central Act 45of1960).
(2) Whoever omits to take reasonable precautions to prevent
the mixing of any noxious substance or any substance
which is likely to endanger human life or to cause grievous
hurt to human beings, with any liquor or intoxicating drug
H shall, on conviction, be punishable,
J
P.N. KRISHNA LAL. v. GOVT. OF KERALA [K. RAMASWAMY, J.) 537
(i) If as a result of such omission, grievous hurt is caused to A
any person, with imprisonment for a term which shall not
be less than two years but which may extend to
imprison.nent for life, and with fine which may extend to
fifty thousand rupees;
(ii) if RS a result of such omission, death is caused to any B
person, with imprisonment for a term which shall not be
less than three years but which may extend to imprisonment
for life, and with fine which may extend to fifty thousand
rupees;
(iii) in any other case, with imprisonment for a term which C
shall not be less than one year but which may extend to ten
years, and with fine which may extend to twenty five
thousand rupees;
(3) Whoever possesses, any liquor or intoxicating drug in
which any substance referred to in sub-section (i) is mixed, D
knowing that such substance is mixed with such liquor or
intoxicating drug shall, on conviction, be punishable with
imprisonment for a term which shall not be less than one ·
year but which may extend to ten years, and with fine
which may extend to twenty-five thousand rupees;
E
(4) notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (Central Act 2 of 1974), no
person accused or convicted of an offence under sub-
section ( 1) or sub-section (3) shall, if in custody be released
on bail or on his own bond, unless-
F
(a) the prosecution has been given an opportunity to 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. G
(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 ( l) or sub-
section (2), the burden of proving that he has not mixed or
permitted to be mixed or, as the case may be, omitted to H
538 SUPREME COURT REPORTS [1994] SUPP. 5 s.c.R
A take reasonable precautions to prevent the mixing of, any
substance referred to in that sub-section with any liquor or
intoxicating drug shall be on him;
(b) where a person is prosecuted for an offence under sub-
section (3) for being in possession of any liquor or
B intoxicating drug in which any substance referred to in sub-
section (1) is mixed, the burden of proving that he did not
know that such substance was mixed with such liquor or
intoxicating drug shall be on him.
(emphasis supplied).
c 57-B. Order to pay compensation.
(1) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (Central Act 2 of 1974), the
Court when passing judgment in a case calling under
section 57-A may, if it is satisfied that death or grievous
D hurt has been caused to any person or persons by
consumption of liquor or intoxicating drug sold in any place
licensed under this Act, order the licensee of that place,
whether or not he is convicted of an offence under the said
section, to pay, by way of compensation, such amount.as it
E appears to be just, to the legal representatives of the
deceased or to the person or persons to whom grievous hurt
has been caused.
(2) Any person aggrieved by an order under sub-section (I)
may, within ninety days from the date of the order, prefer
F an appeal to the High Court;
Provided that no such appeal shall lie unless the amount
ordered to be paid under sub-section (1) is deposited in tlie
Court which passed such order; ..
Provided further that the High Court may entertain the
G
appeal after the expiry of the said period of niriety days if it
is satisfied that the appellant was prevented by sufficient
cause from preferring the appeal in time."
In the Statement of Objects and Reasons annexed to the Amendment
Act, it was stated that the gruesome liquor tragedy in Vaipeenkara Island in
H
P.N. KRISHNA LAL. v. GOVT. OF KERALA [K. RAMASWAMY, J.) 539
Emakulam District of the State during the Onam Festival of 1982 took a A
heavy toll of life and left many with loss of eye-sight and physical
incapacity. A Committee was constituted to suggest ways and means. It,
therefore, became imperative to enact the Amendment Act to provide
severe penalty for adulteration of liquor or intoxicating drug so as to
prevent recurrence of such tragic incidents.
B
The first question is whether the State Legislature was competent to
enact the Amendment Act. Entry 8 of List II - State List of the Seventh
Schedule to the Constitution read with Article 246(3) of the Constitution,
empowers the State Legislature to enact law relating to intoxicating liquors,
that is to say, the production, manufacture, possession, transport, purchase
or sale of intoxicating liquor. Entry 64 deal with offences against law with C
respect to any of the matter in List II. Entry 65 deals with jurisdiction and
powers of all Courts except the Supreme Court with respect to any of the
matters in List II. It is.true that Sections 272 to 276 of the Indian Penal
Code deal with punishment for adulteration of articles of food, while the
Prevention of Food Adulteration Act, 1954 also deals with the same topic.
As a procedural facet, Chapter 18 of the Code of Criminal Procedure, 1973 D
(for short 'the Code') and the relevant provisions in the Evidence Act 1872
deal with adduction of evidence and consideration thereof by the Court, in
proof of the guilt or its non proof. It is not necessary to burden the
judgment with copious citation of diverse decisions on the scope of the
consideration of an entry in the 7th Schedule. In Shri Jilubhai Nan Bhai
Khachar Etc. Etc. v. State of Gujarat and Anr. Etc. Etc., JT (1994) 4 SC E
473, this Court extensively considered the scope of an entry in the 7th
Schedule and held that such entry is not a power given to the Legislature
but is a field of its legislation. The Legislature derives its power under
Article 246 and other related Articles in the Constitution. The language of
an entry should be given· the widest meaning fairly capable to meet the need F
of the government, envisaged by the Constitution. Each general word
should extend to all ancillary or subsidiary matters which can fairiy and
reasonably be comprehended within it. When the vires of an enactment is
impugned, there is an initial presumption of its constitutionality. If there
exists any difficulty in ascertaining the limits of the legislative power, it
must be resolved, as far a5 possible, in favour of the legislature, putting the G
most liberal construction on the legislative entry so that it is infra vires.
Narrow interpretation should be avoided and construction to be adopted,
must be beneficial and cover the amplitude of the power. The broad liberal
spirit should inspire those whose duty it is to interpret the Constitution to
find out whether the impugned Act is relatable to one or the other entry in
the relevant List. The allocation of the subjects of the entries in the H
540 SUPREME COURT REPORTS [1994] SUPP. 5 S.C.R
A respective lists is not done by way of a scientific or logical definitions but it
is a mere enumeration of broad and comprehensive categqries. The power
to legislate on a particular topic includes the power to legislate on subjects
which are ancillary to or incidental thereto or for purposes necessary to give
full effect of the power conferred by the Entry.
B In determining whether the impugned Act is a law with respect to a
given power, the court has to consider whether the Act, in its pith and
substance, is a law· on the subject in question. If the statute relates in pith
and substance to a topic assigned to a particular legislature, the Act will not
be invalidated even if it incidentally trenches on topics coming within
another legislative list. The fact of incidental encroachment does not effect
c the vires of the law even as regards the area of encroachment. The court has ·
to ascertain the true nature and character of the subject of the Act or its pith
and substance to find whether impugned Act falls within the competence of
the particular legislature. Blind adherence to strict interpretation which
would lead to invalidation of statutes as being legislated in the forbidden
sphere should be avoided, lest all beneficial legislations would be stifled at
D birth and many a subject entrusted to the State legislature rendered
ineffectual divesting the State legislature of its power to deal with particular
subject of entry or topic.
In A.S. Krishna v. State of Madras, [1957) SCR 399, a Constitutional
Bench of this Court held that "when the law is impugned on the ground that
E it is ultra vires the power of the legislature which.enacted it, what has to be
ascertained is the true character of the legislation. To do that, one must have
regard to the enactment as a whole, to its objects and to the scope and effect
of its provisions. If on such examination it is found that the legislation in
substance is one on a matter assigned fo the legislature, then it must be held
to be valid in its entirety, even though it might incidentally trench on
F
matters which are beyond its competence. It would be quite an erroneous
approach to the question to view such a statute riot as an organic whole, but
a mere collection of sections, then disintegrate in into parts, examine under'
what heads of legislation those parts would severally fall, and by that
process determine what portions thereof are intra vires, and what are not."
!G In that case like the facts of this case, it was argued that sections 4 (2) and
28 and 32 of Madra,s Prohibition Act, 1937, were void under section 107
(I) of the Government of India Act, 1935 on the contention that they were
repugnant to the provisions of the Indian Evidence Act and the Code of
Criminal Procedure, 1898 and to Article 14 of the Constitution. This Court
rejected the argument' and held that the Madras Prohibition Act would fall
H under Entry 31 of List II of 7th. Schedule of the Government of India Act,
P.N. KRISHNA LAL. v. GOVT. OF KERALA [K. RAMASWAMY, J.) 541
1935 and the Provincial Legislature had exclusive competence to make the A
Act and it was not repugnant to section 107 (1), of 1935 Act.
A more serious contention raised on behalf of the appellants was that
the High Court found, as a fact, that the State Government, in spite of
giving repeated opportunities, had not produced the file before the Court to
show that the assent of the President was expressly obtained with reference B
to any of the provisions of the Evidence Act, the IPC and the Code and,
therefore, the Act is void. In that regard they placed strong reliance on
Gram Panchayat of Village, Jama/pur v. Ma/winder Singh, [1985] 2 Supp.
SCR 28, Minoa Framroze Ba/sara v. Union of India, AIR (1992) Bombay
375 and S. Kanagaraj v. Government of Tamil Nadu, AIR (1991) Madras C
182. We find no force in the contention.
The scheme of the Act and the Amendment Act is a consistent whole, .
regulating production, manufacture, possession, transport, purchase or sale
of intoxicating liquors. The Amendment Act was enacted to prohibit mixing
or permitting to mix methynol in arrack or intoxicated drug or failure to D
take reasonable precautions to prevent acts or omissions, of mixing
methynol in arrack or intoxicated drug or to be in possession thereof with
knowledge ~f its adulteration or to prevent deleterious effect on the health
of the consumers to prevent grievous hurt to ht!man beings or their death.
As a part of it, the burden of proof of the ingredients of the offence being E
within the special knowledge of the accused has also been laid on the
accused person. Therefore, though incidentally it trenches into some of the
provisions ofthe Evidence Act, the Indian Penal Code and the Code, in its
pith and substance, it is an integral scheme of the Act, which falls within
Entry 8 read with Entry 64 and 65 of Schedule II of the 7th Schedule of the
Constitution. Under Article 246(3), the State Legislature was competent to F
enact the Amendment Act. Therefore, the assent of the President is not
necessary. Even assuming that some of the provisions incidentally trespass
into the field of operation of the central provisions falling in the Concurrent
List, which empower both the Parliament and the State Legislature to enact
the law, the assent given by the President made Sections 57A and 57B
valid. The gazette notification of the Amendment Act has .been pla:ced G
before us which shows that the President has given his assent to the
Amendment Act on December 1, 1984. Therefore, by operation of proviso
to clause (2) of Article 254, the Amendment Act prevails over the relevant
provisions in the Indian Evidence Act, IPC and the Code in relation to the
State of Kerala. H
542 SUPREME COURT REPORTS [1994) SUPP. 5 S.C.R
A It is not the requirement of law under Article 254 that the State
Government should seek assent of the President in respect of each and
every specified provisions of the Central Act or Acts in respect of which
there would be inconsistency or repugnancy in the operation of the Central
provisions and the State enactment. It is enough that once the assent of the
President is sought and given to the State amendment, though to some
B extent inconsistency or repugnancy exists between any provision, part or
parts of any Act or Acts of ·any Central Statutes, the repugnancy or
inconsistency ceases to operate in relation to the State in which the assented
State Government operates.
In Jamalpur Gram Panchayat case, the facts were that specific assent
c of the President was sought, namely, Article 31 and Article 31-A of the
Constitution vis-a-vis Entry 18 of List II of the 7th Schedule of the
Constitution. The President had· given specific assent. The Shamlat-deh
lands in Punjab were owned by the proprietors of the village, in proportion
to their share in the property of the lands held by them. After the partition,
the proprietary interests in the lands of the migrants and proportionate to
D
share of their lands vest in the Union of India. The question arose whether
the Punjab Village Common Lands (Regulation) Act, 1953 prevails over
Evacuee Property Act 1950. It was contended that in view of the assent
given by the President; the State Act prevails over the Central Act. This .
Court in that context considered the scope of the limited assent.
E Chandrachud, CJ, speaking for majority, held that the Central Act, 1950
prevails over the Punjab Act, 1953 and the assent of the President which
was obtained for a specific .purpose cannot be utilised for according
precedence to the Punjab Act. At page 42, placitum 'B' to ''E', this Court
held that "the assent of the President under Article 254 (2) of the
ConstitUtion is not a matter of idle formality. The President has, at least, to
F be apprised of the reason why his assent is sought if, there is any special
reason for doing so. If the assent is sought and given in general terms so as
to be effective for all purposes, different considerations may legitimately
arise." Thus it is clear that this Court did not intend to hold that it is
necessary that in ~very case the assent of the President in specific.terms had
to be sought and given for special reasons in respect of each enactment or
G provision or provisions. On the other hand, the observation clearly indicates
that if the assent is sought and given in general terms it would be effective
for all purposes. In other words, this Court observed that the assent sought
for and given by the President in general terms could be effective for all
purposes unless specific assent is sought arid given in which event it would
H be operative only to that limited· extent.
P.N. KRISHNA LAL. v. GOVT. OF KERALA [K. RAMASWAMY, J.] 543
In Minoo Framroze Balsara v. Union of India, AIR (1992) Bombay A
375, it was contended that the Public Premises Unauthorised Occupants
(Eviction) Act, 1971 prevails over the Bombay Rent Act following the ratio
in Jama/pur Gram Panchayat's case but the division bench held that since
special assent of the President was sought and given in relation to the
Transfer of Property Act, and Small Causes Court Act over the Bombay
Rent Act, the omission to obtain assent in relation to Eviction Act, 1971 B
was eloquent and that, therefore, the Public Premises Unauthorised
Occupants (Eviction) Act, 1971 will not prevail over the Bombay Act. The
ratio therein is not a general proposition of law as contended but is confined
to the factual background.
In S. Kanagaraj 's case, a learned Single Judge of Madras High Court C
held that the scheme in Part IV-A of the Motor Vehicles Act, 1939, was
amended by Tamil Nadu Bill and sought the assent of the President. Before
the assent was/given, the Motor Vehicles Act, 59 of 1988 had come into
force repealing 1939 Act. The subsequent assent given by the President
would not prevail over the Motor Vehicles Act, 1988. In that context, the
learned Judge held that the general assent does not save the State enactment D
unless specific assent is sought for and given. The broad proposition of law
therein is not good law. Accordingly, we hold that the assent of the
President in general terms is sufficient compliance with the proviso to
clause (2) of Article 254 of the Constitution.
The crucial questions canvassed with vehemence in chorus by all the E
counsel for the appellants are the validity of section 57-A and 57-B on the
anvil of Articles 20 (3), 14 and 21 of the Constitution. Before adverting to
their contentions, it is necessary to keep in forefront the need for the
amendments, the ingredients of the offences and the scope of their
operation. It is common knowledge that due to consumption of adulterated F
arrack or toddy with mythenol resulted in large scale loss of valuable lives
and permanent incapacity of many a place in Andhra Pradesh, Orissa, Delhi
and Rajasthan etc. The quest for deterence is to quench the greed for unjust
profits and to save precious lives of innocent consumers of arrack etc. The
Amendment Act was enacted to meet the menace, as section 57 was not
effectual. Section 57-A with the marginal note, "For adulteration of liquor G
or intoxicating drug with noxious substances etc. etc.' says :
(l) 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 life or to cause grievous hurt to human beings, with any
liquor or intoxicating drug, shall, on conviction be punishable ....." The H
544 SUPREME COURT REPORTS (1994] SUPP. 5 S.C.R
A ingredients of the offence are: of mixing or permitting to mix noxious
substance or any other substance with liquor or intoxicating drug, which is
likely to endanger human life or cause grievous hurt to human life or cause
grievous hurt to human beings or death when the adulterated liquor or
intoxicating drug is consumed by an individual. (i) If as a result of such act,
grievous hurt is caused to any person, then the accused on conviction, be
B punishable with imprisonment for a term which shall not be less then two
years but which may extend to imprisonment for life and with fine which
may extend to Rs. 50,000. (ii) If as a result of such act, death is caused to
any person, in other words, on account of consumption of adulterated liquor
or intoxicating drug mixed with noxious substance or any other substance,
the accused, on conviction, be punishable with death or imprisonment for a
c term which shall not be less than three years but which may extend to
imprisonment for life and with fine which may extend to Rs. 50,000. (iii) In
any other case, on conviction, be punishable 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 Rs. 25,000. The expression 'grievous hurt'
D by operation of the Explanation to Sub-section (I) of section 57-A for the
purpose of sections 57-A and 57-B, shall have ,the sanie meaning as
envisaged in section 320 oflPC. Sub-section (2) prescribes 'omission' also
as an offence postulating that whoever omits to take reasonable precaution
to prevent the mixing of any noxious substance or any other substance
which is likely to endanger human life or to cause grievous hurt to the
E human beings with any liquor or intoxicating drug, shall be liable for
conviction. In other words, there should be proof of the liquor or
intoxicating drug mixed with noxious substance and the person responsible
for omission to take reasonable precaution to prevent mixing of noxious
substance or any substance, the consequence of which act of mixing or
omission to take reasonable precaution in that behalf to prevent the mixing
F of noxious substance or any other substance which is likely to endanger
human life or to cause grievous hurt to. human beings or death. On proof
thereof, the accused, on conviction, shall be, (a) as a result of such
omission, grievous hurt is .caused to any person, in . other words, to the
.· consumer, punishable for a term which shall not be less than two yearli but
which may extend to imprisonment for life and with fine which maY. extend
G to Rs . .50,000; (b) if as a result of such omission, death is caused to any
person, in other words, to the ·consumer, shall be punishable for not less
than thre.e years but which may extend to imprisonment for life and with
fine which may extend to Rs . .50,000; (c) .in any other case, with
imprisonment for a teim which shall not be less than one year but which
may extend to ten years and with fine which may extend to Rs. 2.5,000.
H
P.N. KRISHNA LAL. v. GOVT. OF KERALA [K. RAMASWAMY, J.] 545
Sub-section (3) makes a person in possession of any liquor or A
intoxicating drug with the knowledge that liquor or intoxicated drug was
mixed with any noxious or any other subs!ance. On proof thereof, the
accused found in possession of the adulterated liquor or intoxicating drug
mixed with noxious substance or any other substance, shall be liable to
conviction. On recording conviction, he would be punishable with
imprisonment for a term which shall not be less than one yeru- but which B
may extend to ten years and with fine which may extend to Rs. 25,000. In
all these cases the prosecution has to prove that the arrack or intoxicated
drug contained noxious substance or any other substance. Due to
consumption of adulterated liquor, it endangered human life or caused
grievous hurt or death or other disability to the consumer. On proof thereof C
the operation of sub-section (5) comes into play.
Sub-section (4) deals with grant of bail. In view ·of the constitution
bench decision of this Court upholding the constitutional validity of similar
provision of TADA in Kartar Singh v. Union of India, [1994] 3 SCC 569,
the validity of sub-section (4) is no longer res integra and that, therefore, its D
validity no longer remains assailable. The need to elaborately discuss its
validity is obviated. Therefore, it is accordingly held valid and so upheld.
Sub-section (5), because of non-obstanate clause, makes inapplicable
the relevant provisions in the Indian Evidence Act as to fact proved,
disproved or not proved under section 3; may presume, shall presume and E
conclusive proof in section 4 and burden of proof in Chapter 7 in Part III of
the Evidence Act. The special rules of evidence envisaged under sub-
section (5) of section 57-A get attracted. Clause (a) provides that where a
person is prosecuted for an offence under sub-section (I) or (2), the burden
of proof that he has not mixed or permitted to mix noxious substance or any
other substance with the liquor or the intoxicated drug or as the case may F
be, omitted to take reasonable precaution to prevent the mixing of any
noxious substance or any other substance falling sub-sections (I) and (2) of
section 57-A with any liquor or intoxicating drug, shall be on him. In other
words, notwithstanding the burden of proof of a fact or disproof or non-
proof of the fact envisaged in the Evidence Act, the onus of proof thereof
though normally is on the prosecution, by operation of sub-section (5) G
special rule of proof and its burden has been placed on the person
prosecuted for the offences mentioned in sub-sections (I) and (2) as the
facts are within his knowledge. So he has to prove that he has not mixed or
has not permitted to mix or as the case may be, had not omitted to take
reasonable precaution to prevent the mixing of any noxious substance or
any other substance, referred to in sub-sections (I) and (2) of section 57-A H
546 SUPREME COURT REPORTS [1994] SUPP. 5 S.C.R
A with any liquor or intoxicating drug. We would advert to the mode of proof
and the extent of the burden of proof which lie on the accused at a later
stage.
(2) When a person is prosecuted for an offence under sub-section (3),
in other words, the person found in possession of liquor or intoxicating
B drug mixed with noxious substance or any other substance, it places the
burden on him to prove that he did not have knowledge that such noxious
substance or any other substance was mixed with such liquor and
intoxicating drug found in his possession. The burden of such want of
knowledge shall be on him. The primary facts that the accused was in
possession of adulterated arrack or intoxicated drug and that it · was an
c adulterated one with noxious or other substance is on the prosecution.
Section 57-B is a concomitant culmination to the act of mixing or
permitting to be mixed or failure to take reasonable precaution in mixing or
being in possession of adulterated liquor or intoxicating drug with
knowledge that liquor or intoxicating drug was adulterated with noxious or
D any other substance envisaged in section 57-A. On the Court finding that
the prosecution has proved its case, the Judge having satisfied that death or
grievous hurt has been caused to the consumer or endangered human life
and finding that the death or grievous hurt has been caused or endangered
human life, by sale of the adulterated liquor or intoxicating drug \ti any
licence placed under the Act, the licensee becomes liable for payment of
E compensation. Power has been conferred upon the court to order the
licensee of that place whether or not he is convicted of an offence under
section 57-A, to pay by way of compensation as liquidated damages such
amount, as appears to be just, to be paid to the legal representatives of the
deceased or to the person or persons to whom grievous hurt has been
c11used. By operation of sub-section (2), the person aggrieved by an order
F
made under sub-section (1 ), has been given right of appeal to the High
Court within prescribed period of limitation. The proviso imposes as a
condition precedent that the appeal shall not lie unless the amount ordered
under sub-section (1) was deposited in the court of first instance. In other
words, exercise of the right of appeal under sub-section (2) is conditional
G one for pre-compliance with the order of the court made in sub-section (1)
and gives to the High Court the jurisdiction to entertain the appeal only on
proof of the deposit of the amount ordered to be made by the trial court.
Since it is made a condition precedent, the second proviso gives power and
discretion to the High Court to entertain the appeal, after the expiry of the
prescribed period of limitation on the appellants' satisfying the court that he
H was prevented by sufficient cause to file the appeal within time.
P.N. KRISHNA LAL. v. GOVT. OF KERALA [K. RAMASWAMY, J.] 547
The contentions of the counsel for the appellants are that the universal A
declaration of human rights, tlte civil and political rights, Convention to
which India is a Member, guarantee fundamental freedom and liberty to an
accused. The procedure prescribed for trial must also stand the test of the
rights guaranteed by those fundamental human rights. In criminal
jurisprudence, the settled Jaw is that the prosecution must prove all the
ingredients of the offences for which the accused has been charged with. B
The proof of guilt of the accused should be on the prosecution and be
beyond reasonable doubt. At no stage of trial, the accused is under an
obligation to disprove his innocence. Unlike in a trial of civil action, the
burden of proof of a case always rests on the prosecution and it never gets
shifted. Sub-section (5) relieves the prosecution of its duty to prove its case
beyond reasonable doubt which is incumbent under the Code and the C
Evidence Act and makes the accused to disprove the prosecution case.
Thereby, the substantive provisions and the burden ofproofnot only violate
the fundamental human· rights as well as fundamental right under Articles
20(3) and 14. To place the entire burden on the accused by section 57-A (5)
to prove his innocence, therefore, is arbitrary, unjust and unfair infringing
upon his right to life and unfair and unjust procedure violating the D
guarantee under Article 21.
Mere possession of the arrack or intoxicated drug without proof by the
prosecution that it was mixed with noxious substance is per se arbitrary,
unfair and an unconscionable procedure violating Articles 14 and 21. A E
mere appearance of rash on human body due to consumption of arrack or
intoxicated drug mixed with noxious or other innocuous substance entails
the offender with minimum sentence. Intention to commit crime is sine quo
non for the prosecution of an offender. Conviction for offences under
section 57-Awithout proof of the intention of the offender is contrary to the
settled principles of criminal jurisprudence. Sections 299 and 300 of IPC F
make a distinction between culpable homicide and murder but the
Amendment Act has done away with this salutary distinction and mere
death of a person by consumption of adulterated arrack, makes the offender
liable for conviction and imprisonment for life or penalty of death. Mere
negligence in taking reasonable precaution to prevent mixing noxious
substance or any other substance with arrack or Indian made foreign liquor G
or intoxicated drugs is made punishable with minimum sentence is harsh,
unjust and excessive punishment offending Articles 14 and 21. Exclusion of
proof of any mitigating circumstances, want of intention or non-serious or
trivial consequences ensued by consumption of adulterated arrack etc. are
totally excluded from consideration by the court in awarding sentence
which would violate Fundamental Rules of fair procedure guaranteed under H
548 SUPREME COURT REPORTS [1994] SUPP. 5 S.C.R
A Articles 21 and 14. Even the culpability of the negligence proved under
section 304-A while giving discretion to criminal court to impose lesser
sentence, is taken away in the garb of mandatory deterrent sentence
prescribed in section 57-A, compensatory justice envisaged in section 57-B
is obnoxious to fair trial. The consequential omission or failure to deposit
the compensation awarded as a condition to exercise right of appeal is also
B unfair, unjust and illusory offending Articles 14 and 21. The presumptions
envisaged in sub-section (5) of section 57-A per se violate the fundamental
rights and universal declaration. Mere possession of adulterated liquor
without any intent to sell, to become a presumptive evidence to impose
punishment without the prosecution proving that the person in possession
was not a bona fide consumer or had its possession without animus to sell
c 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.
Absence of proportionality in imposition of the sentences consistent
with the proved guilt under section 57-A is also arbitrary and unfair. The
D extreme penalty of death by section 57-A (1) (ii) withoutproofof intention
or knowledge to cause the death which is an essential pre-requisite
iniredient both for culpable homicide or murder defined in sections 299
and 300 oflPC, violates the rights guaranteed under Articles 14 and 21 of
the Constitution and is grossly disproportionate to the proved guilt of the
accused. Any provision which imposes penalty by resorting to statutory
E presumption is per-se unconstitutional. There should always be proof of
· culpable mandatory state of mind on the part of the accused to impose
maximum punishment of death which is rarest of the rare cases for
extremely cruel crime but the innocent man charged under section 57-A
and B is made to prove his innocence or else he would be liable to be
F sentenced to death or other minimal sentence. Therefore, it would be a
savage punishment anathema to civilised jurisprudence. The violation of
the constitutional mandate that no persm shall be deprived of the life or
personal liberty witftt>ut complying with the mandatory provisions of
Articles 21and14, is writ large.
G Compelling the accused to prove the facts constituting offence under
·section 57-A by operation of its sub-section (5) is opposed to the mandate
of Article 20(3), amounts to and compels him to be a witness to prove his
innocence. A reading of the provisions in section 57-A and 57-B do
establish that there is no rational relation or nexus with the object sought to
be achieved by the Amendment Act. The provisions of Prevention of
H Adulteration Act provide an elaborate procedure to take samples of the·
P.N. KRISHNA LAL. v. GOVT. OF KERALA [K. RAMASWAMY, J.] 549
articles of food for getting tested its adulteration and the absence of such A
procedure either in the Amendment Act or in the Act and no rules having
been made in that behalf, the procedure is arbitrary, unjust and unfair
offending Articles 14 and 21 of the Constitution. Mere mixing or permitted
to mix noxious or other substance with liquor or intoxicated drug itself was
made an offence without the same being exposed for sale or intended for
sale or consumed and consumption by the person is contrary to the notions B
of fair criminal jurisprudence. Absence of burden on prosecution to prove
these essential ingredients, makes the Amendment Act totally arbitrary and
per se unjust violating Articles 14, 19 and 21. The presumption by section
57-A(5) read with section 57-A(3) that a person in possession of adulterated
liquor is presumed to know that the same is mixed with noxious substance
is harsh and cruel since as a bona fide purchaser of liquor for consumption C
would also be a person in possession of the liquor or intoxicated drug
without any knowledge that it was mixed with or permitted to be mixed
with noxious or any other substance and it does not satisfy the test of
rational connection. We have given our anxious and deep consideration to
the diverse aspects projected forcefully by all the learned counsel and we
find that they are unacceptable and if given credence, they would frustrate D
the very object of the Amendment Act.
Article W (3) of the Constitution protects that "no person accused of
any offence shall be compelled to be a witness against himself." Article 21
envisages that "no person shall be deprived of his life or personal liberty
except according to the procedure established by law." Article 14 provides E
equality and equal protection of the laws to a person. R.C. Cooper v. Union
of India, [ 1970] 3 SCR 530, accentuated the efficacy of meaningful right to
life guaranteed by Article 21 to full blossom and the fairness. of the
procedure for its deprivation have been woven with civilised jurisprudence
treating all the relevant Articles in Part III as an integral stream of rights to F
make the dignity of the person meaningful with unimpeaded flow of fair
justice to every person and to make each right in its conjoint operation an
effective tool in that process. Equally the founding fathers of the
Constitution structured the scheme in the Constitution in such a way that
not only the liberty, equality and fraternity, i.e. trinity would always
blossom and enliven the flower of human dignity in harmony with social G
good. In Kartar Singh v. State of Punjab, [1994] 3 SCC 569 at 715, it was
held that freedom cannot last long unless it is coupled with order, freedom
can never exist without order, freedom and order may coexist. It is essential
that freedom should be exercised under authority and order should be
enforced by authority which is vested solely in the executive. Liberty of
individual should be subject to social control otherwise it would become H
550 SUPREME COURT REPORTS [1994] SUPP. S S.C.R
A anti-social and would undermine the security of the State. The individual
has to grow within the social confines preventing his unsocial or unbridled
growth which could be done by reconciling individual liberty with social
control. Liberty must be controlled ii:l the interest of the society but the
social interest must never be overbearing to justify total deprivation of
individual liberty. Liberty cannot stand alone but must be paired with a
B companion virtue; liberty and morality; liberty and law; liberty and justice;
liberty and common good; liberty and responsibility which are
concomitants for orderly progress and social stability. Man being a rational
individual has to live in harmony with equal rights of others and more
differently for the attainment of antithetic desires. This intertwined network
is difficult to delienate within defined spheres of conduct within which
c freedom of action may be confined. Therefore, liberty 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. Liberty, therefore, as
a social conception is a right to be assured to all members of a society, the
liberty of some must not involve the oppression of others. If liberty be
regarded a social order, the problem of establishing liberty must be a
D problem of organising restraint which society has over the individual.
Therefore, liberty of each citizen is borne of and must be subordinated to
the liberty of the greatest number, in other words, common happiness is an
end of the society, lest lawlessness and anarchy will tamper social weal and
harmony and powerful courses or forces would be at work to undermine
social welfare and order. Thus the essence of civil liberty is to keep alive
E the freedom of the individual subject to the limitation of social control
which could be adjusted according to the needs of the dynamic social
evolution. The concept of individual liberty in harmony with social order is
in consonance with universal declaration of human rights and international
covenant to civil and political rights and other allied covenants.
F
The reisen di-etre of the State being the welfare of the members of the
society, the whole purpose of the creation of the State would be to maintain
order, health and morality by suitable legislation and proper administration.
The State has the power to prohibit trade or business which ate illegal,
immoral or injurious to the health and welfare of the people. No one has the
G right to carry on any trade or occupation or business which is inherently
vicious and pernicious and is condemned by all civilised 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.
H There is no inherent right in crime. Prohibition of trade or business of
P.N. KRISHNA LAL. v. GOVT. OF KERALA [K. RAMASWAMY, J.] 551
noxious or dangerous substance or goods, by law is in the interest of social A
welfare.
Article 11 ( 1) of the universal declaration of Human Rights provides
that everyone charged with penal offences has a right to be presumed
innocent until proved guilty according to law in a public trial at which he
has had all the guarantees necessary for his defence. Article 14(2) states B
that everyone charged with a criminal offence shall have the right to be
presumed innocent until proved guilty according to law. Article 6(1) of
Convention on Civil and Political Rights states that every human being has
the inherent right to life. This right shall be protected by law. No one shall
be arbitrarily deprived of his life. Article 9(1) says. that everyone has the
right to liberty and security of person. No one shall be subjected to arbitrary C
arrest or detention. No one shall be deprived of his liberty except on such
grounds and in accordance with such procedure as is established by law.
Article 14(2) envisages that everyone charged with a criminal offence shall
have the right to be presumed innocent until proved guilty according to law
and shall be entitled to minimum guarantees detailed .therein. Clause (e) D
thereof posits thus - "to examine, or have examined, the witnesses against
him and to obtain the attendance and examination of witnesses on his
behalf under the same conditions as witnesses against him" and (g)
"provides not to be compelled to testify against himself or to confess guilt."
This Court in Bachhan Singh v. State of Punjab, [ 1980] 2 SCC 684, while
upholding the constitutionality of death sentence under section 302, IPC, E
when contended that it violates Article 6 (1) of the Convention and the
Universal Declaration o( Human Right held that both rights are
substantially the same as the guarantees or prohibition contained under
Articles 20 and 21 of our Constitution. "India's commitment, therefore,
does not go beyond what is prohibited in the Constitution and the Indian
Penal Code and the Criminal Procedure Code." However, the spirit of the F
international convention has to be kept in view in considering the validity
of the impugned provisions and their applications.
It is true and indisputable, as contended by Sri A. Raghuvir, the learned
senior counsel that the golden rule that runs through the web of all the
civilised criminal jurisprudence is that the accused is presumed to be G
innocent unless he is found guilty of the charged offence. The burden to
prove all the facts constituting the ingredients of the offence against the
accused beyond reasonable doubt rests on the prosecution. If there is any
reasonable doubt the accused gets the benefit of acquittal. But the rule gets
modulated with the march of time. Whether the legislature could step in and
provide exceptions, create offences and also place part of the burden of H
552 SUPREME COURT REPORTS [1994) SUPP. 5 S.C.R
A proof on the accused, where the facts are within his special knowledge or
intention is locked up in the mind of the accused to prove the said facts is
unconstitutional and violates fundamental human rights.
Under the Act, the State ·has absolute right to regulate production,
transport, storage, possession and sale of liquor or intoxicant drug. No
B person has any absolute right to sell liquor or intoxicated drug except in
accordance with law which aimed at preservation of public health as well as
to raise revenue. Dealing in liquor or intoxicant drug is, therefore, not an
absolute right to business or trade but is a regulated right in accordance
with law. The Act prohibits mixing of noxious substance with liquor or
possession thereof. The State, therefore, possesses the right of complete
c control on all kinds of intoxicants, namely, manufacture, collection, sale
and consumption thereof. Regulation of sale of potable liquor prevents
reckless propensit)' for adulterating liquor to make easy gain at the cost of
health and precious life of consumer. Equally none has freedom or
fundame'ltal right to do business in adulterated articles of food. Cognizant
to the contemporaneous large scale deaths or grievous hurt to the
D consumers of adulterated liquor mixed with noxious substance, the
Amen~ent Act aims to prevent their recurrence and accordingly it came to
be made.
No civilised society, therefore, would countenance that a citizen has a
fundamental right to trade or business in activities which are criminal in its
E propensity, immoral, obnoxious and injurious to health, safety and welfare
of the general public. It is, therefore, a question of public expedience and
public morality that the State is fully competent to regulate the business in
liquor or intoxicated drug to mitigate its evil or to suppress it in its entirety.
There is no inherent right in a citizen to conduct business or trade in
adulterated intoxicated liquor by retail or wholesale. It is, therefore, obvious
F
that dealing in liquor inherently pernicious or dangerous goods which
endangers the community or subversive of morale, is within the legislative
competence under the Act. The State has thereby the power to prohibit
trade or business which is injurious to the health and welfare of the public
and the elimination and exclusion from the business is inherent in the
G nature of liquor business. The power of the legislature to evolve the policy
and its competence to raise presumptive evidence should be considered
from this scenario.
In Salabiaku v. Grance, [1988] 13 EHRR 379 at 388, the European
Court of Human Rights while dealing with the scope of Article 11 of
Universal Declaration of Human Rights, the scope of the burden of proof
P.N. KRISHNA LAL. v. GOVT. OF KERALA [K. RAMASWAMY, J.] 553
on the prosecution and also its placement on the accused, held that A
presumption of fact or of law operate in every legal system. Clearly, the
Convention of civil and political rights does not prohibit such presumption
in principle. It does, however, require the contracting states to remain
within certain limits in this respect as regards criminal la\.\'., If, as the
Commission wouid appear to consider paragraph 2 of Article 6 merely laid
down a guarantee to be respected by the courts in the conduct of legal B
proceedings, its requirements would in practice overlap with the duty of
impartiality imposed in paragraph I. Above all, the national legislature
would be free to strip the trial court of any genuine power of assessment
and deprive the presumption of innocence of its substance, if the words
'according to law' were construed exclusively with reference to dome.itic
law. Such a situation could not be reconciled with the object and purpose of C
Article 6, which, by protecting the right to a fair trial and in particular the
right to be presumed innocent, is intended to enshrine the fundamental
principle of the rule of law. Article 6(2) does not therefore regard
presumptions of fact or of law provided for in the criminal law with
indifference. It requires states to confine them within reasonable limits
which take into account the importance of that is at stake and maintain the D
rights of the defence. It was therefore held that providing exceptions or to
place partial burden on the accused was not violative of universal
declaration of human rights or even convention on civil or political rights.
Let us trench into the contours of comparable jurisdiction in U.K., E
Hong Kong, Malaysia, U.S.A., Australia and Canada to find the permissive
limits of the burden of proof on the accused. The celebrated judgment of
the House of Lords is of Lord Sankey L.C. is Woo/mington v. Director of
Public Prosecutions, (1935) A.C. 432. It was laid down at pp. 481-482 that
throughout the web of the English criminal law the golden thread is always
to be seen that it is the duty of the prosecution to prove the prisoner's guilt
subject to what I have already said as to the defence of insanity and subject F
also to any statutory exception ...... No matter what the charge or where the.
trial, the principle that the prosecution must prove the guilt of the prisoner
is part of the common law of England and no attempt to whittle it down can
be entertained. This ratio was further explained in the speech of Viscount
Simon L.C. in Mancini v. Director of Public Prosecutions, (1942) A.C. 1 at G
11, Woolmington's case was explained and reinforced that the prosecution
must prove the charge beyond reasonable doubt, and, consequently, that if,
on the material before the jury, there is a reasonable doubt, the prisoner
should have the benefit of it. The rule is of general application in all
charges under the criminal law. The only exception which arises, as
explained in Woolmington's. case, is in the defence of insanity and in H
554 SUPREME COURT REPORTS [1994] SUPP. 5 S.C.R
A offences where onus of pi:oof is specially dealt with by statute. In Jayesena
v. The Queen, (1970) A.C. 618, Lord Devlin speaking for the Privy
Council, commenting upon Woolmington's case at p. 623 stated that the
House laid it down that, save in the case of insanity or of a statutory
defence, there was no burden laid on the prisoner to prove his innocence
and that it was sufficient for him to raise a doubt as to his guilt. In Reg. v.
B Edwards [1975] Q.B. 27, considering the Licence Act of 1964 and section
160 (l} (a), the Court of Appeal held that when the accused was convicted
of selling intoxicating liquor without the licence contrary to law and the
prosecution had not adduced any evidence to show that he did not have the
.licence, the Court of Appeal held that the burden W!lS on the defendant
(accused) to prove that he held a licence and that as he had not done so he
c was rightly convicted. This case followed number of precedents on the
statutory exceptions and ultimately upheld that it is no part of the duty of
the prosecution to prove a negative fact that the accused had a licence.
In Ong Ah Chuan v. Public Prosecutor, (1981) A.C. 648, a case arising
from Singapore Court of Appeal, Lord Diplock speaking for the Board
D considered trafficking in prohibited drug (heroin) and the statutory
presumption of trafficking under the Drugs Act, 1973 vis-a-vis, the Bill of
Rights. The accused had in his possession 15 grams of heroin in violation
of section 3 of the Misuse of Drugs Act, 1973. Under section 29, the death
sentence was mandatory for such an offence. Respondent was c9nvicted
and sentenced to death which was affirmed by the Court of Appeal. Lord
E Dip lock speaking for the Board held that proof of the purpose for which an
act is done, where such purpose is a necessary ingredient of the offence
with which an accused is charged, presents a problem with which criminal
courts are very familiar. Generally, in the absence of an express admission
by the accused, the purpose with which he did an act is a matter of
inference from what he did. Thus in the case of an accused caught in the act
F of conveying from one place to another the controlled drugs in a quantity
much larger than is likely to be needed for the purpose of trafficking in
them, would, in the absence of any plausible alternative explanation by
him, be irresistible - even if there was no statutory presumption such as is
contained in section 15 of the Drugs Act. As a matter of common sense the
larger the quantity of drugs involved, the greater the inference that they
G were not intended for the personal consumption of the person carrying
them, and the more convincing evidence needed to rebut it. Whether the
quantities involved be large or small, however, the inference is always
rebuttable. The presumption, therefore, works that when an accused is
proved to have had controlled drugs in his possession and to have been
moving them from one place to another, the mere act of moving them does
H
P.N. KRISHNA LAL. v. GOVT. OF KERALA [K. RAMASWAMY, J.] 555
not of itself amount to trafficking under the Act. But if the purpose of A
which they were being moved was to transfer possession from the mover to
some other person at their intended destination, the mover is guilty of the
offence of trafficking under section 3. If the quantity of controlled drugs
being moved was in excess of the minimum specified for that drug in
section 15, that section creates a rebuttable presumption that such was the
purpose for which they were being moved, and the onus lies upon the B
mover to satisfy the court, upon the balance ofprobabilities, that he had not
intended to part with possession of the drugs to anyone else, but to retain
them solely for his own consumption. (emphasis supplied). The
con~titutional validity of presumption under section 15 was upheld holding
that a generous interpretation avoiding what has been called 'the austerity
of tabulated legalism', suitable to give to individuals the full measure of the C
fundamental liberties is necessary and most liberal approach to the
construction of the written constitution which i!. sui generis, is necessary. It
was held that one of the fundamental rules of natural justice, in the field of
criminal law, is that a person should not be punished for an offence unless it
has been established to the satisfaction of an independent and unbiased
tribunal that he committed it. .......... What fundamental rules of natural D
justice do require, is that there should be material before the court, that is,
logically probative of facts sufficient to constitute the offence with which
the accused is charged. Upon the prosecution's proving that certain acts
consistent with that purpose and in themselves unlawful were done by the
accused, the court shall infer that they were in fact done for that purpose
unless there is evidence adduced which on the balance of probabilities E
suffices to displace the inference. The purpose with which he did an act is
peculiarly within the knowledge of the accused. There is nothing unfair in
requiring him to satisfy the court that he did the acts for some less heinous
purpose if such be the fact. Presumption of this kind are a common feature
of modern legislation concerning the possession and use of things that F
present danger to society like addictive drugs, explosives, arms and
ammunition. Section 15, therefore, was not inconsistent with the
Constitution, at any rate so far as it relates to proved possession, with
which alone the instant cases are concerned. (emphasis supplied).
Accordingly, the sentence of death imposed by the trial and was confirmed
on appeal, was affirmed. In Regina v. Hunt (Richard), (1987) A.C. 352, G
when the Police Officer found in the appellant's house a paper fold
containing 154 milligrams of a white powder which, when analysed, was
found to be morphine mixed with caffeine and atropin, the appellant was
charged under section 5(2) of the Misuse of Drugs Act, 1971 and section 4
of the Misuse of Drugs Act, 1973, Lord Griffiths, speaking for the House
per majority, interpreting the presumption, during the course of the speech, . H
556 SUPREME COURT REPORTS [1994] SUPP. S S.C.R
A the learned Law Lord, held at p. 376 that whenever burden of proof is
placed upon a defendant by statute the burden should be an evidential
burden and not a persuasive burden. In order to establish the guilt the
prosecution must, therefore, prove t.'1at the prohibited substance is in the
possession of the defendant. At p. 380 construing the dictum of Lord
Sankey and Lord Viscount Simon L.C., it was stated that "I take the word
B 'specially' to mean no more than that the onus of proof is made the subject
of a statutory provision, be this express or implied, Lord Simon was not
purporting to narrow the exception identified by Lord Sankey, but merely
to repeat it. If he had intended to narrow it to express statutory exceptions,
this would have been so stated but the resultant anomaly would then have
required justification. Since, ex hypothesis, Parliament had, by necessary
c implication from the words used in the statute, made known its intention,
by what authority could that intention be ignored? It is a constitutional
platitude to state that where Parliament makes its intention known, either
· expressly or by necessary implication, the courts must give effect to what
Parliament has provided ..... Whenever it is the intention of Parliament to
place a burden of proof upon the accused, so to provide in express terms,
D the proposition advanced by the appellant cannot be sustained. In Mok Wei
Tak and Anr. v. The Queen, (1990) 2 A.C. 333, a case arising from Hong
Kong Prevention of Bribery Ordinance (Laws of Hong Kong, 1980 rev.,
c.201). Sections IO (1) (a), the accused husband and his wife were
maintaining a standard of living above that commensurate with his official
emoluments during the relevant period and on the charge of abatement of
E the crime by the wife; they were convicted of the offences and the Court of
Appeal dismissed the appeal. On further appeal, the judicial committee
speaking through Lord Roskill held per majority that section 10 (I) creates
an offence different from the other offences enacted by Part II of the
Ordinance. It concerns with maintaining an excessive standard of living
F following an earlier event, namely, corrupt acquisition of assets which has
enabled those later events to take place. Therefore, the proof of abeting or
aiding the abatement was to be inferred unless proper explanation was
given. It was held that the wife failed to give that explanation. The
conviction was upheld. In Attorney General of Hong Kong v. Lee Kwong-
Kut, [1993] W.L.R. 329, a case arising from Hong Kong Court of Appeal
G and the High Court, the Privy Council considered Drug Trafficking
(Recovery of Proceeds) Ordinance, section 25 and Hong Kong Bill of
Rights Ordinance 1991, sections 3, 8 and 11. The accused were charged
under section 30 of the Summary Offences Ordinance for being in
possession of cash reasonably suspected of having been stolen or
unlawfully obtained. The second was charged for assisting another to retain
H the benefit of drug trafficking, contrary to section 25 of the Drug
P.N. KRISHNA LAL. v. GOVT. OF KERALA [K. RAMASWAMY, J.] 557
Trafficking (Recovery of Proceeds) Ordinance. Both the accused were A
convicted and their convictions were upheld. In both the cases the High
Court quashed the indictment on the ground that they were violative of
Article 11 of the Bill of Rights. On appeal by the Attorney General, the
Privy Council upheld the judgment in the first case but set aside the
conviction in the second case and held that s~ction 2 (j) is not in violation
of Article 11 of Bill of Rights. The Board held that Article 11 of Bill of B
Rights was intended that the accused will have fair trial and that justice will
be done. Article 11(1) is always subject to implied limitation. It is not the
letter of the language ofthe statute which is important but its substance and
effect is material. If the prosecution retains responsibility to prove the
essential ingredient the less likely it is that an exception will be regarded as
unacceptable. In deciding what are the essential ingredients, the language C
ofthe relevant statutory provision will be important.
(Emphasis supplied).
Analysing the ratio in the judgment of Canadian Supreme Court and
Australian Reports and Article 11 (I), section 30 and section 25 of the Act, D
it was held that the substantive effect of the statutory provision in respect of
the first accused was to place onus on him to establish that he can give an
explanation as to his innocent possession of the property which is a most
significant element of the offence. It reduces the burden on the prosecution
to prove possession by the defendant and facts from which a reasonable E
suspicion can be inferred that the property has been stolen or obtained
unlawfully, matters which are likely to be a formality in the majority of
cases. Therefore, it was held that it contravened Article 11 ( 1) of the Hong
Kong Bill of Rights. But with regard to section 25 it was held that under
sub-section (1) of section 25, the onus is on the prosecution. Unless the
prosecution can prove that the defendant has been involved in a transaction
involving the relevant person's proceeds of drug trafficking within the wide F
terms of section 25(2) as set out in section 25(1) and that at that time he had
the necessary knowledge or had reasonable grounds to believe the specified
facts the defendant is entitled to be acquitted. However, once the defendant
knows or has reasonable grounds to believe that the relevant person is a
person who carries on or has .carried out drug trafficking or has benefited G
from drug trafficking, then the defendant knows that he is at risk of
committing an offence and that he can only safely deal with that person if
he is in a position to satisfy section 25(3) or (4). If the defendant chooses
not to take the precautionary action under section 25(3) then he knows he
can only safely proceed by relying on section 25(4). To be able to achieve
this the defendant will have to take all steps necessary to ensure that he H
558 SUPREME COURT REPORTS [1994] SUPP. 5 S.C.R
A does not have the knowledge or suspicion referred to. If the defendant has
done this then he will be aware of the relevant facts and it is reasonable that
he should be required to establish them. It would be extremely difficult, if
not virtually impossible, for the prosecution to fulfil the burden of proving
that the defendant had not taken those steps. In the context of the war
against drug trafficking, for a defendant to bear that onus under section
B 25(4) is manifestly reasonable and clearly does not offend Article II(/).
Indeed section 30 and section 25 can be regarded as examples ofsituations
close to the opposite ends of the spectrum of what does and does not
contravene Article 11(1). (Emphasis supplied). Accordingly it was held that
the burden of proof could not conceivably contravene Article 11 ( 1).
c In Queen v. Oakes, 26 D.L.R. (4th) 200, the Supreme Court of Canada
considered the constitutionality of the presumption engrafted in section 8 of
the Narcotic Control Act, 1970 on the anvil of section l l(d) of the
Canadian Charter of Rights and Freedoms and held that the 'reverse onus'
laid down in section 8 of the Act violated the presumption of innocence
guaranteed by section l l(d) of the Charter. Since section 8 established a
D mandatory presumption of law and, in using the word 'establish' imposed a
legal burden of proof on the accused, and not merely an evidentiary burden,
by requiring the accused to prove on the balance of probabilities that he was
not in possession of the narcotic drug for the purpose of trafficking, it
compelled him to prove that he was not guilty of the offence of trafficking.
The presumption of innocence is hallowed principle lying at the very heart
E of criminal law which protects the fundamental liberty and human dignity
of any and every person accused by the State of criminal conduct. This is
essential in a society committed to fairness and social justice. H was held
that the Section failed to rationalise the connection between the basic fact of
possession and the presumed fact of possession for the purpose of
trafficking of persons guilty of possession only of narcotic drugs. In Louis
F Beaver v. The Queen, [1957] SCR 531, the same court held that for an
offence of being in possession of Narcotic substance, the element of
knowledge formea part of the ingredient of possession when mere
possession of the substance amounted to an offence and it would be within
the province of the Parliament to create an offence. As s~en, the Privy
Council had-explained the rationale to strike a balance between individual
G
liberty and social order and court is to see whether strict construction would
subserve the legislative purpose and the Court was not inclined to adopt that
strict construction. The decision of the Hong Kong High Court in the Queen
v. Sin Yau-ming, [1992] I Hong Kong Cri.minal Law Reports p. 127, must
be understood in the light of the latter decision of the ?rivy Council referred
H to hereinbefore.
P.N. KRISHNA LAL. v. GOVT. OF KERALA [K. RAMASWAMY, J.] 559
In Ed Tumedy v. State of Ohio, (71) L.Ed. 510, the question arose A
whether certain statutes of Ohio in providing for the trial by the Mayor for
Violation of the Prohibition Act of the State, deprive the accused of due
process of Jaw violating the 14th Amendment to the Federal Constitution.
Tapt, C.J. speaking for the unanimous Supreme Court of the United States
of America held that a statute seeking to stimulate small municipalities to
organise and maintain courts to try persons accused of violation of the B
prohibition Jaw without a jury to try offenders with no review of decision~
except on matters of law and flagrant disregard of the evidence was held
constitutional. There is nothing in the Federal Constitution to prevent a
State from providing such a system of courts as it chooses. There is nothing
in the 14th Amendment to the Federal Constitution that requires jury trial
for every offender. In Morrison v. California, 78 Law. Ed. (1933), the C
question arose whether placing the burden of proof on a co-accused of a
charge of conspiracy so as to violate the Alien Land Law of California was
violative of due process under 14th Amendment. Cardozo, J. speaking for
the unanimous court held that within the limits of reason and fairness, the
burden of proof may be lifted from the state in criminal prosecutions and
cast on a defendant. The limits are in substance these, that the State shall D
have proved enough to make it just for the defendant to be required to repel
what has been proved with excuse or explanation, or at least that upon a
balancing of convenience or of the opportunities for knowledge the shifting
of the burden will be found to be an aid to the accuser without subjecting
the accused to hardship or oppression. Special reasons are at hand to make E
the change permissible. The legislature may go a good way in raising a
presumption or in changing the burden of proof, but there are limits. What
is proved must be so related to what is inferred in the case of a true
presumption as to be at least a warning signal according to the teachings of
experience. It is not within the province of a legislature to declare an
individual guilty or presumptively guilty of a crime. Presumption that are F
not evidence in a proper sense but simply regulations of the burden of
proof. Accordingly it was held that placing the burden on the accused to
prove Jack of guilty knowledge was held to be not violative of due process
of 14th Amendment. In United States v. Gainey, 13, Law. Ed. 2nd. p. 659
( 1965), in a prosecution to carry on an illegal distilling businesses, the court
instructed the jury that the unexplained presence of the accused at the sight G
of illegal distilling business is sufficient evidence to authorise conviction of
the offences unless the accused explains his presence to the satisfaction of
the jury, whether unconstitutional and section 26 USC 560 I (b) (2), violates
due process of 14th Amendment. Steward, J. expressing the opinion for
majority by seven Members of the Court held that the statutory inference is
constitutional. The purpose of section 26 USC 5601 (b) (1) and (2) is to H
I
560 SUPREME COURT REPORTS [1994] SUPP. 5 S.C.R
A provide that the unexplained presence of an accused at the sight where an
unregistered distilling apparatus is set up or an illegal distilling business is
carried out shall be sufficient evidence to authorise conviction, is to meet
the practical impossibility of proving actual participation in such an illegal
activity except by inference drawn from the accused's presence when the
illegal acts were committed. The constitutionality of legislation authorising
B an inference from the certain facts depends on the rationality of the
connection between facts proved and the ultimate fact presumed.
Significant weight should be accorded to the capacity of Congress to amass
the stuff of actual experience and cull conclusions from it in matters not
within specialised judicial competence or completely common place. An
unexplained presence of an accused at a place where an illegal distilling
c business is carried on shall be deemed to be sufficient evidence to authorise
conviction for illegal carrying on the business of distilling permits. A judge
is to submit a case to the jury on the basis of the accused's presence alone
but where presence is the only evidence it does not require a judge to
submit the case to the jury nor preclude the grant of a judgment,
notwithstanding the verdict. And the Appellate Court may review the trial
D judge's denial of motions for a directed verdict or for a judgment. The
presumption was held to be not unconstitutional violating due process of
law. James Turner v. United States, 396 US 398 (1970) 24 L.Ed. 2nd, 610,
the defendant was tried before a jury on a charge with (I) knowingly
receiving, concealing, and transporting heroin and cocaine which he knew
that it had been illegally imported, and (2) knowingly purchasing,
E disposing, and distributing heroin and cocaine which were not in or from
the original stamped package. The evidence indicated that the defendant
had been in possession 9f a 14.68 gram package containing a cocaine with
sugar mixture and a 48.25 gram package containing 275 bags of heroin, and
that no federal tax stamps were affixed to the packages. No evidence was
presented as to the origin of the cocaine or heroin, and the defendant did
F not testify. Relying upon the presumption the trial judge instructed the jury
that the defendant's unexplained possession of the heroin .and cocaine
would support an inference that he knew that they had been illegally
imported and the defendant's possession of heroin and cocaine which were
not in a stamped package constituted prima facie evidence that he
G knowingly purchased, dispensed or distributed such heroin and cocaine. On
finding guilty on all the counts by the jury on conviction and affirmation by
the Court of Appeal, on certiorari, White J. speaking for the majority
affirmed the conviction involving heroin and held that all heroin consumed
in the United States is illegally imported and the jury would properly infer,
as authorised by statute, that the heroin in the defendant's possession had
H been illegally imported and the defendant had knowledge of its illegal
P.N. KRISHNA LAL. v. GOVT. OF KERALA [K. RAMASWAMY, J.] 561
importation. The evidence of the defendant's possession of 275 bags of A
heroin was sufficient to support his conviction for distributing such heroin
because it was extremely unlikely that a package containing heroin would
be legally stamped and because most persons in possession of heroin could
be presumed to have obtained it by purchase, the defendant was properly
convicted for purchasing heroin which was not in or from the original
stamped package. But since cocaine was being also cultivated in the United B
States, it was held that from mere possession the statutory presumption of
unlawfully procured or to infer that cocaine in the defendant's possession
had been illegally imported and that he had knowledge of its illegal
importation cannot be sustained unless there is some evidence adduced by
the prosecution. The ratio in Lawry's case was followed. In Barnes v.
United States, 412 US 837 (1973), 37 Law. Ed. 2nd, 381, in a prosecution C
on a charge of being in possession of US Treasury checks from the mails
knowing them to be stolen, the trial court instructed the Jury that ordinarily
it would be justified in inferring, from the defendant's unexplained
possession of the recently stolen property, that he possesses the mails with
knowledge that it was stolen. On finding guilty by the jury and on
conviction and affinnation by the Dist. Court and the US Court of Appeal D
on the federal side, on certiorari, Powell, J. speaking for the majority, held
that a statutory inference submitted to the jury has sufficient to support
conviction accords with due process if it satisfies the reasonable doubt
standard that the evidence necessary to invoke the inference is sufficient for
a rational juror to find the inferred fact beyond a reasonable doubt as well
as the more-likely-than-not standard that is, it can be said with substantial E
assurance that the presumed fact is more likely than not to flow from the
proved fact on which it is made to depend. Although the introduction of any
evidence, direct or circumstantial tending to implicate the accused in the
alleged crime increases the pressure on him to testify, the mere massing of
evidence against an accused cannot be regarded as a violation of his F
privilege against self-incrimination. The inference from the accused's
unexplained possession of recently stolen property, though he knew that it
was stolen, does not infringe his privilege against self-incrimination and it
may not be fairly understood as a comment on his failure to testify. Where
there Is rational connection between the facts proved and the facts
presumed or inferred, it is pennissible to shift the burden of going forward G
to the defendant where an inference satisfies the reasonable doubt standard.
In County Court of Ulster, New York v. Samuel Allen, 442 US 140 (1979),
60 Law. Ed. 2nd. 777, three adult males and a 16 year old girl were jointly
tried on charges that they illegally possessed two loaded hand-guns which
had been found in a car in which they were riding by a police officer who
had stopped the auto for speeding, the handguns having been positioned H
562 SUPREME COURT REPORTS (1994] SUPP. 5 S.C.R
A crosswise in the girl's open handbag on either the front seat or floor of the
car where the girl had been sitting, the trial judge instructed the jury that
subject to certain exceptions, that the presence of a firearm in an auto is
presumptive of its illegal possession by all persons then occupying the
vehicle and that it was entitled to infer the defendants' possession of the
handguns from their presence in the car, tending to support or contradict
B such inference, and that it was to decide the matter for itself without regard
to how much evidence the defendants introduced. On finding guilty by the
jury and conviction followed and affirmed by Court of Appeal, in a
certiorari Stevens, J., joined by Burger Ch. J., and White Blackmun, and
Rehnquist, JJ., it was held that defendants' claim that it was
unconstitutional for the State to rely on the presumption because the
c evidence was otherwise insufficient for conviction had not been rejected by
the State courts on the basis of an independent and adequate State
procedural safeguards. It was held that the most common evidentiary device
is the entirely permissible inference or presumption which allows, but does
not require, the trier of fact to infer the elemental fact from proof by the
prosecutor of the basic one and which places no burden of any kind on the
D defendant. The basic fact may constitute prima facie evidence of the
elemental fact. A state statutory presumption, providing that the presence of
a firearm in an automobile is generally presumptive evidence of its illegal
possession by all persons occupying the vehicle, is not violative of the due
process under the United States Constitution.
E For the purposes of the constitutionality, in terms of due process, a
statutory presumption regarding a criminal matter, a presumption need not
be accurate in every imaginable case. For the purpose of due process, the
validity of inferences and presumptions varies from case to case, depending
on the strength of the connection between the particular basic and elemental
facts involved and on the degree to which the device curtails the fact
F finder's freedom to assess the evidence independently. In criminal cases,
the ultimate test of any device's constitutional validity in a given case is
that the device must not undermine the defendant's responsibility at trial,
based on evidence adduced by the state, to find the ultimate facts beyond a
reasonable doubt. An inference or presumption involved in a case is
permissive or mandatory for the purpose of analysing its validity in terms
of due process was held not violative of due process. Same view was
reiterated in Herman Solem v. Jerry Buckley Helm, 463 US 277 (1983) 77
Law. Ed. 2nd. 637. In Timothy F. Leary v. U.S., 395 US 6, 23 Law. Ed.
2nd. 57, the petitioner and his daughtet were found in their automobile
when stopped at the American customs inspection area upon driving back
H across the International Bridge between the United States and Mexico. He
P.N. KRISHNA LAL. v. GOVT. OF KERALA [K. RAMASWAMY, J.] 563
was found to be in possession of marijuana. When he was charged for A
having knowingly transported and facilitated the transportation and
concealment of marijuana which had been illegally imported or brought
into the United States, all in violation of 21 USC l 76a and sub-section (2)
upon conviction finding by the jury to be knowingly transported, concealed
etc. and confirmation by the Court of Appeal, on certiorari, Harlan, J. per
majority of 7 Judges, held that but there was no connection between the fact B
proved is to infer that the defendant's possession of marijuana that he knew
of the illegal importation or bringing into United States. However, it was
well settled in the United States that to import a narcotic drug contrary to
law or to receive or conceal or to facilitate any of the acts with knowledge
that drug has been imported unlawfully and also provided that the
production of a narcotic drug should be deemed to authorise conviction C
under the statute unless the defendant explained such s_atisfaction of the jury
under 21 USC 174 and it was held that it does not violate the 5th
Amendment by compelling him to a witness against him. It has to be
remembered that in the Federal Constitution of USA, except the writ of
certiorari, there is no power like our Article 136 to review the legality,
conviction or trial of an offender on merits. So the Supreme Court of USA D
adopted due process technique and reasonable doubt standard to synthesise
the procedure and principles suitable to its judicial review.
Section 5 of the Evidence Act envisages that evidence may be given in
any suit or proceeding of the existence or non-existence of every fact in
issue and such other facts as are hereinafter declared to be relevant and no E
others. Illustration (a) provides that 'A' is tried for the murder of 'B' by
beating him with a club with the intention of causing his death. At A's trial,
the following facts are in issue :-
A's beating B with the club;
F
A's causing B's death by such beating;_
A's intention to cause B's death.
Section 6 provides that facts which though not in issue, are so
connected with a fact in issue to form part of the same transaction, are G
relevant, whether they occurred at the same time and place or at different
times and places.
Section 101 places general burden of proof postulating that whoever
desires any court to give judgment as to any legal right or liability
dependent on the existence of facts which he asserts, must prove that those H
564 SUPREME COURT REPORTS (1994] SUPP. 5 S.C.R
A facts exist. Section I 02 says that the burden of proof in a suit or proceeding
lies on that person who would fail if no evidence at all were given on either
side. Section 105 says that if a person is accused of any offence, the burden
of proving the existence of circumstances bringing the case within any of
the General Exceptions in the Indian Penal Code or within any special
exception or proviso contained in any other part of the same Code, or in
B any law defining the offence, is upon him, and the Court shall presume the
abs;!nce of such circumstances. Section 6 ma.Ices another exception,
providing that any· fact if to be established within the knowledge of any
person, the burden of proof is upon him. The definition of the word
'proved' says that a fact is said to be proved when, after considering
matters before it, the Court either believes it to exist, or considers its
c existence so probable that a prudent man ought, under the circumstances of
the particular case, to act upon the supposition that it exists. A fact is said to
be not proved when it is neither proved nor disproved. A fact is said to be
disproved when, after considering the matters before it, the Court either
believes that it does not exist, or considers its non-existence so probable
that a prudent man ought, under the circumstances of the particular case, to
D act upon the supposition that it does not exist.
It is the cardinal rule of our criminal jurisprudence that the burden in
the web of proof of an offence would always lie upon the prosecution to
prove all the facts constituting the ingredients beyond reasonable doubt. If
there is any reasonable doubt, the accused is entitled to the benefit of the
E reasonable doubt. At no stage of the prosecution case, the burden to
disprove the fact would rest on the defence. However, exceptions have been
provided in sections 105 and 106 of the Evidence Act, as stated
hereinbefore. Section 113-A of the Evidence Act raises a presumption as to
abatement of suicide by a married woman by her husband or his relatives.
Similarly section 114-A raises presumption of absence of consent in a rape
F case. Seve1-al statutes also provided evidential burden on the accused. On
the general question of the burden of proof of facts within special
knowledge of the accused, this Court, in Shambu Nath Mehra v. State of
Ajmer, [1956] SCR 199, laid the rule thus:-
"Section 106 of the Evidence Act does not abrogate the
G well-established rule of criminal law that except in very
exceptional classes of cases the burden that lies on the
prosecution to prove its case never shifts and section 106 is
not intended to relieve the prosecution of that burden. On
the contrary, it seeks to meet certain exceptional cases
where it is impossible, or a proportionately difficult, for the
H prosecution to establish facts which are especially within
P.N. KRISHNA LAL. v. GOVT. OF KERALA [K. RAMASWAMY, J.) 565
the knowledge of the accused and which can be proved by A
him without difficulty or inconvenience."
In C.S.D. Swamy v. The State, [1960] l SCR 461, on a charge for
offence under section 5(1) (a) and 5(1) (b) read with section 5(3) of the
Prevention of Corruption Act, 1947, on the question ofb~rden of proof, this
Court noticing the language in section 5(3) which reads as under : - B
"In any trial of an offence punishable under sub-section (2)
the fact that the accused person or any other person on his
behalf is in possession, for which the accused person cannot
satisfactorily account, of pecuniary resources or property
disproportionate to his known sources of income may be C ·
proved, and on such proof the court shall presume, unless
the contrary is proved, that the accused person is guilty of .
criminal misconduct in the discharge of his official duty and
his conviction therefore shall not be invalid by reason only
that it is based solely on such presumption."
D
It was held that it does not create a new offence but only lays down a
rule of evidence enabling the court to raise a presumption of guilt in certain
circumstances - a rule which is a complete departure from the established
principles of criminal jurisprudence that the burden is always on the
prosecution to prove all the ingredients of the charge and the burden never
shifts to the accused to disprove the charge framed against him. The E
Legislature using the expression "satisfactorily account" in section 5(3) cast
the burden on the accused not only to offer a plausible explanation as to
how he came by the large wealth disproportionate to his known sources of
income, but also to satisfy the court that his explanation was worthy of
credence. The general law where it has been held that the accused could be F
exculpated if he offered a plausible explanation, could have no application.
In Sajjan Singh v. State of Punjab, [1964] 4 SCR 630, the Constitution
Bench considering section 5(3) held that this sub-section provides an
additional mode of proving an offence punishable under sub-section (2) for
which an accused is being tried. This additional mode is by proving the G
extent of the pecuniary resources or property in the possession of the
accused or any other person on his behalf and thereafter showing that this is
not disproportionate to his known sources of income, if the accused person
cannot satisfactorily account for such possession. Sub-section (3) made a
deliberate departure from the ordinary principle of criminal jurisprudence,
under which the burden of proving the guilt of the accused in criminal H
566 SUPREME COURT REPORTS [1994) SUPP. 5 S.C.R
_A proceedings lies all the way on the prosecution. It merely prescribes a rule
of evidence for the purpose of proving the offence of criminal misconduct
defined in section 5(1) for which an accused person is already under trial.
Sub-section (3) places in the hands of the prosecution a new mode of
proving an offence with which an accused has already been charged.
B In Harbhajan Singh v. State of Punjab, (1965] 3 SCR 235, in a
prosecution under section 499 read with exception of section 9 of IPC when
the accused pleads an exception, its scope was considered and held that
under section 105 of the Evidence Act, if an accused person claims the
benefit of Exceptions, the burden of proving his plea that his case falls
under the Exceptions is on the accused but the nature and extent of the onus
c of proof on the accused is not the same as the nature and extent of the onus
placed on the prosecution in a criminal case. He is not required to discharge
that burden by leading evidence to prove his case beyond reasonable doubt.
The test of proof beyond reasonable doubt does not apply to the accused
and if he proves by preponderance of probabilities, the burden shifts_ to the
prosecution which has still to discharge its original burden. Considering the
D Woo/mington 's ratio this Court held that the principle of common law
criminal law jurisprudence would be a part of the criminal law in our
country.
,. ..
In Dhanvantrai Balwantrai Desai v. State " of Maharasthtra, AIR
(1964) SC 575, it was held that in order to raise the presumption under sub-
E section (I) of section 4 of Prevention of Corruption Act, 1947, what the
prosecution has to prove is that the accused has received "gratification other
than legal remuneration" and when it is shown that he has received a certain
sum of money which was not a legal remuneration, then the condition
prescribed by this Section is satisfied and the presumption there under must
be raised. In C./. Emden v. State ofUttar Pradesh, AIR (1960) SC 548, this
F court further held that it _cannot be suggested that the relevant clause in
section 4 (I) which deals with the acceptance of any valuable thing should
be interpreted to impose upon the prosecution an obligation to prove not
only that the valuable thing has been received by the accused but that it has
been received by him without consideration or for a consideration which he
knows to be inadequate. The plain meaning of this clause undoubtedly
G
requires the presumption to be raised whenever it is shown that the valuable
thing has been received by the accused without anything more. In V.D.
Jhangan v. State of Uttar Pradesh, (1966] 3 SCR 736, this court held that
as soon as the prosecution proves acceptance of illegal gratification, it must
be held that the requirement of section 4( I) has been fulfilled and the
H presumption thereunder must be raised. On the nature of the burden of
P.N. KRISHNA LAL. v. GOVT. OF KERALA [K. RAMASWAMY, J.] 567
proof on the accused, this Court reiterated the test of proof on a A
preponderance of probability in favour of the case of the accused and he
need not prove his case beyond reasonable doubt. The onus of proof lying
on the accused person is to prove his case by preponderance of probability.
As soon as he succeeds in doing so, the burden is shifted to the prosecution
which still has to discharge its original onus that never shifts.
B
In S.L. Goswami, v. State of Madhya Pradesh, [1972] 2 SCR 948, on
the general principles of burden of proof, a bench of four Judges held at
page 954 that even in cases where the defence of the accused does not
appear to be credible or is palpably false that burden does not become any
the less. It is only when the burden is discharged that it will be for the
accused to explain or controvert the essential elements in the prosecution C
case which would negative it. It is not however for the accused even at the
·. initial stage to prove something which has to be eliminated by the
prosecution to establish the ingredients of the offence with which he is
charged, and even if the onus shifts upon the accused and the accused has to
establish his plea, the standard of proof is not the same as that which rests
upon the prosecution. Where the onus shifts to the accused, and the D
evidence on his behalf probabilitses the plea he will be entitled to the
benefit of reasonable doubt. The same view was reiterated in Kali Ram v.
State ofHimachal Pradesh, [1974] 1 SCR 722, by a bench of three Judges.
In State of Mahrasthra v. Wasudeo Ramachandra Kaidalwar, [ 1981] 3
SCR 675, considering the question as to the nature and extent of burden of E
proof under section 5 ( 1) (e), this court held that the expression "burden of
proof' has two distinct meanings; (l) the legal burden, that is, the burden of
establishing the guilt and (2) the evidential burden, that is, the burden of
leading evidence. Notwithstanding the general rule that the burden of proof
lies exclusively upon the prosecution, in the case certain offence, the F
burden of proving a particular fact in issue may be laid by law upon the
accused. This burden is not so onerous as that which lies on the prosecution
and is discharged by proof of a balance of probabilities. As soon as the
ingredients of offence under sections 5 (1) and 5 (2) to the extent of the
pecuniary resources or property in his possession or his known sources of
income known to the prosecution are established and its proof that the G
property was disproportionate to his known source of income, the offence
of criminal misconduct would be complete. The burden that shifts to the
accused to satisfactorily account for possession by him of assets
disproportionate to his income. The extended nature of the burden resting
on the public servant cannot be higher than establishing case on
preponderance of probability. H
568 SUPREME COURT REPORTS [1994] SUPP. 5 S.C.R
A It is thus settled law even under general criminal jurisprudence that
sections 105 and 106 of the Evidence Act place a part of the burden of
proof on the accused to prove facts which are within his knowledge when
the prosecution establishes the ingredients of the offence charged, the
burden shifts on to the accused to prove certain facts within his knowledge
or exceptions to which he is entitled to. Based upon the language in the
B statute the burden of proof varies. However, the test of proof of
preponderance of probabilities is the extended criminal jurisprudence and
the burden of proor' is not as heavy as on the prosecution. Once the accused
succeeds in showing, by preponderance of probabilities that there is
reasonable doubt in his favour, the burden shifts again on to the prosecution
to prove the case against the accused beyond reasonable doubt, if the
c accused has to be convicted. From this conceptual criminal jurisprudence,
question emerges whether sub-section (5) placing the burden on the
accused of the facts stated therein would offend Articles 20(3), 21 and 14 of
the Constitution.
Section 315 of Code of Criminal Procedure, 1973 corresponding to
D section 342-A of 1898 Code, makes an accused person to be a competent
witness. He would be a competent witness and may give evidence on oath
in disproof of the charges made <.Jainst him or any person charged together
with him at the same trial, provided that (a) he shall not be called as a
witness except on his own request in writing; (b) his failure to give
evidence shall not be made the subject of any comment by any of the
E parties or the Court or give rise to any presumption against himself or any
person charged together with him at the same trial. He, therefore, could
waive 'his right under Article 20(3) and tender himself as a witness, if he so
chooses.
In A.S. Krishna's case, the Constitution Bench considering
F constitutional validity of the presumption under section 4 (2) of the Madras
Prohibition Act, 1947, held that the presumptions do not offend the
requirement as the equality before law or the equal protection of law under
Article 14 as they have to be raised against all persons against when the
facts mentioned therein are established. After Bank Nationalisation's case
G and Menaka Gandhi v. Union of India, [1978] I SCR 568, the procedure
· prescribed must also stand the test of Article 21. It is settled law that the
procedural as well as substantive law must satisfy the requirements of
Articles 14, 20 and 21.
In K. Veeraswamy v. Union of India, [1991] 3 SCC 655, when the
H constitutionality of section 5 (I) ( e) and section 5 (3) of the Prevention of
P.N. KRISHNA LAL. v. GOVT. OF KERALA [K. RAMASWAMY, J.] 569
Corruption Act was challenged, the Constitution Bench held that a statute A
placing the burden on the accused cannot be regarded as unreasonable,
unjust or unfair nor can it be regarded as contrary to Article 21 of the
Constitution as contended for the appellant. In Sanjay Dutt v. The State
through C.B.I. [ 1994] 5 SCC 410, a Constitution Bench held that on proof
of possession of firearm or ammunition and of conscious possession by the
prosecution, the unauthorised possession in notified area raises statutory B
presumption that it was meant for terrorist or disruption act. Burden is on
the accused to rebut the presumption. The accused has a duty to prove non-
existence of a fact essential to constitute an ingredient of an offence under
section 5 of TADA. Section 5 of TADA was held to be constitutional.
In Jagmohan Singh v .. State of U.P., [1973] 2 SCR 541, Constitution C
Bench was to consider the validity of section 302 of IPC imposing death
sentence. This court held that the decision of the court as regards
punishment is dependent upon consideration of all the facts and
circumstances and that, therefore, the crime widely differ ftom facts and
facts and it hardly be challenged on any ground under Article 14. In D
Bachan Singh 's case considering the validity of the same question under
Article 19(1), 14 and 21, this court held that the provisions of death penalty
as an alternative punishment for the murder under section 302 IPC is not
unreasonable and it is in the public interest. It was also held that whether an
act of that penalty serves any penological purpose is a difficult, complex
and intractable issue. For the purpose of testing the constitutionality of the E
impugned provision on the ground of reasonableness in the light of the
Articles 19 and 21 of the Constitution, it is not necessary to express any
categorical opinion one way or the other as to which of the two antithetical
views held by the Abolitionists and Retentionists, is correct. It is sufficient
to say that the very fact that persons of reason, learning and light are
rationally and deeply divided in their opinion on this issue, is a ground F
among others, for rejecting the petitioners' argument that retention of death
penalty in the impugned provision is totally devoid of reason and purpose.
The provision of imposition of the death penalty as an alternative
punishmen't for murder, therefore, cannot be said unreasonable and it is in
the public interest. It, therefore, neither violates Article 21 or ethos of G
Article 19. It is also not in violation of Article 6 of the International
Covenant on Civil and Political Rights.
In Mithu, Etc. v. State of Punjab Etc Etc., [1983] 2 SCR 690, this
court held that equity and good conscience are the hall-mark of justice. A
provision of law which deprives the court of the use of its wise and H
570 SUPREME COURT REPORTS [1994) SUPP. 5 S.C.R
A beneficient discretion in a matter of life and death, without regard to the
circumstances in which the offence was committed and therefore, without
regard to the gravity of the offence, cannot but be regarded as harsh, unjust
and unfair. The legislature cannot make relevant circumstances irrelevant,
deprive the courts of their legitimate jurisdiction to exercise their discretion
not to impose the death sentence in appropriate cases, compel them to shut
B their eyes to mitigating circumstances and inflict upon them the dubious
and unconscionable duty of imposing a pre-ordained sentence of death. It
was, therefore, held that section 303 IPC imposing compulsory death
sentence on a person undergoing life imprisonment was held to be
unconstitutional. This ratio also reiterates that savage sentence is anathema
to civilised jurisprudence of Article 21 and that, therefore, court has wide
c discretion in imposing punishment in accordance with the magnitude of the
crime. It is for the court to decide whether the procedure prescribed by law
for depriving a person of his liberty or life is fair, just and reasonable. In
Polavarapu Satyanarayana alias Narayana v. Polavarapu Soundaryava/li
and Ors., 1987 (1) Andhra Law Times 762, the Andhra Pradesh High Court
w~s to consider whether section 113-A of the Evidence Act was
D constitutionally valid under Articles 14, 21 and 20(3) of the Constitution.
The High Court held that the presumptive evidence under section 113-A of
the Evidence Act has been drawn keeping in view the paramount social
interest. They are against the interest of the specified class of offenders,
husband or his relatives. Section 113-A does not offend Article 20(3) or 21
or 14 of the Constitution. It was held that when offences are committed
E within the confines of a society of marital home of woman, it becomes
intractable for the prosecution to place the entire material in that regard. It
is for the Court from the totality of the circumstances to find and hold
whether the prosecution has proved its case beyond reasonable doubt.
Section 113-A does not create an offence but it is an evidential part placed
on the accused to adduce evidence in proof of a crime occurred within their
F
confines to meet peculiar circumstances in intractable areas. So it is neither
unfair nor unjust nor unreasonable attracting either Article 14 or Article 21
of the Constitution nor offend right to life. Article 20(3) though accords
immunity from testimonial compulsion or self-incrimination, the i~munity
has its own limitation. It is open to the accused to waive the privilege.
G There is no prohibition to make a voluntary confession or admission.
Equally, ifhe volunteers to give evidence, he waives his privilege and gives
testimony on the point concerned and he has to speak the whole truth. If he
enters into the box and gives evidence, he will be subject to cross-
examination upon his evidence in chief with the same latitude as would be
exercised in the case of an ordinary witness. Though the element of
H compulsion is implicit in section 113-A, it is for the accused to exercise his
P.N. KRISHNA LAL. v. GOVT. OF KERALA [K. RAMASWAMY, J.] 571
privilege engrafted under Article 20(3). It is optional. Production of A
evidence does not necessarily require the accused to examine himself. It is
enough to raise reasonable doubt on preponderance of probabilities. The
presumptive evidence under section 113-A has been drawn keeping in view
of the paramount social interest than the interest of offenders. Accordingly,
its validity was uphefd.
B
The doctrine of reading down sub-section (5) of section 57-A is not
applicable to the situation arising under the Amendment Act. Therefore, it
is not necessary to deal with the decisions on Menaka Gandhi, Kehar Singh
v. Union of India, [1988] Supp 2 SCR 24, D.T.C. v. Union of India, [1990]
Supp 1 SCR 142 and Sunil Batra v. Delhi Administration, [1979] l SCR
392 etc. The question of intention and the distinction between murder and C
culpable homicide under section 300 and 299 IPC and the doctrine of
negligence and culpability under section 304-A IPC and the decisions
arising thereunder are not relevant. The question of intention bears no
relevance to an offence under section 57-A and equally of culpability or
negligence. It is seen that mixing or permitting to mix noxious substance or D
any other substance with liquor or intoxicated drug or omission to take
reasonable precaution or being in possession without knowledge of its
adulteration for the purpose of unjust enrichment would be without any
regard for loss of precious human lives or grievous hurt. The legislature has
noted the inadequacy and deficiency in the existing law to meet the menace
of adulteration of liquor etc. and provided for new offences and directed E
with mandatory language protection of the health and precious lives of
innocent consumers. While interpreting the law, the court must be
cognizant to the purpose of the law and respect the legislative animation
and effectuate the law for social welfare. The legislature enacted deterrent
social provisions to combat the degradation of human conduct. These
special provisions are to some extent harsh and are a departure from normal 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.
It is seen that the trial judge has been given wide discretion to impose
the sentence based on fact situation and circumstances in each case subject G
to minimum sentence prescribed under the Act. The object of the
Amendment Act is to put down the menace of adulteration of arrack etc. by
prescribing deterrent sentences. Individual cases like the victim suffering
from rashes by consumption of adulterated arrack etc. may be an individual
hypothetical case. The statute cannot be struck down on hypothesised
individual case. Under the Code, the accused has the opportunity before H
572 SUPREME COURT REPORTS (1994) SUPP. 5 S.C.R
A 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. All the accused are treated as a class and there is
reasonable nexus between the offence created and the case to be dealt with
the procedure, presumption and burden of proof placed on the aecused, are
B not unjust, unfair or unreasonable offending Articles 21 and 14. It also does
not violate Article 20(3). Section 57-A and 57-B are, therefore, valid. The
possession itself being an offence under sub-section (3) of section 57-A, in
a given case whether the accused was in possession for self, consumption
for exterminating his life would be an hypothetical case and the offence
created cannot be declared to be ultra vires on its basis. The non obstanate
c clause take out the rigour, as stated earlier, from the applicability of the
provisions of the Evidence Act and that of the Code. Compensation under
section 57-B is in the nature of liquidated damages under tort to mitigate
and relieve from the hardship of the victim or next of kin. The legislature
thought it expedient to provide the minimum, of course, subject to law of
damages by the aggrieved person or next of kin at the civil action.
D Therefore, prescription of the damages does not violate either Article 14 or
19. It is a reasonable classification to subserve the social good. The accused
charged for the offence stand as a class and that, therefore, there is no
invidious discrimination on the proof of the charge for the punishment
envisaged under the relevant provisions of section 57-A or 57-B. Therefore,
these provisions are not violati':'e of Articles 14, 20(3) and 21 of the
E Constitution. The appeals are accordingly dismissed with costs quantified
as Rs. 20,000 in each appeal.
R.P. Appeals dismissed.
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