2023 INSC 998 1 | Criminal Appeal Nos. 1134 of 2011 & 567 of 2015

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1134 OF 2011

SAJEEV …APPELLANT(S)

VERSUS

STATE OF KERA LA …RESPONDENT(S)

WITH

CRIMINAL APPEAL NO. 567 OF 2015

J U D G M E N T

SANJAY KAROL J.

1. The present appeals arise from the final judgment and order dated

23.07.2010 passed by the High Court of Kerala at Ernakulam in

REPORTABLE

2 | Criminal Appeal Nos. 1134 of 2011 & 567 of 2015

Criminal Appeal No.72 of 2004, which confirmed the judgment and

order dated 02.04.2004 passed by Sessions Judge, Kollam in

Sessions Case No.1308 of 2003 vide which the present Appellants,

two in number, namely, (i) Sajeev (Accused No. 10) and (ii) Roy

(Accused No.11) were convicted under Sections 302, 307 and 326

read with Section 120B of the Indian Penal Code (hereinafter ‘IPC’),

Section 55(a), (h), (i) and Section 57 (A) (1) (ii) of the Abkari Act.

They were awarded imprisonment for life for the offence under

Section 302 and Section 57(A)(1)(ii), along with other sentences,

ordered to run concurrently.

2. The incident in question relates to alcohol poisoning, resulting in

the death of 7 innocent people, blindness in 11 people, and more

than 40 people sustaining injuries.

3. The prosecution case emerging from the record, as also set out by

the Courts below, is as follows:

i. On 04.04.2003, at about 7 PM, A1, A3, A10, and A11

hatched a conspiracy to mix methyl alcohol with spirit to sell

the same for an unlawful gain through the outlet operated

by A1. In furtherance of this conspiracy, A10 and A11

3 | Criminal Appeal Nos. 1134 of 2011 & 567 of 2015

brought 21 cans (each of 5L) containing methyl alcohol

labeled as 'Biosole’ in the Maruti car owned by A10 to the

residence of A1 and A3 on 05.04.2003.

ii. Thereafter, A2, A7, and A8 brought spirit to the residence of

A1 and A3 in the Ambassador car owned by A2. Methyl

Alcohol supplied by A10 and A11 was mixed with this spirit

by A1 and A3 and sold through A1's outlet. A4, A5, A6, A9

and A12 assisted A1 in this sale.

iii. Seven persons, including A4 and A12, died after consuming

the spurious liquor on 09.04.2003 – 10.04.2003. PWs 1 – 9

and 11 -12 also fell ill after consuming the said liquor. PW70,

DYSP, received information about the incident and

commenced the investigation with PW67, Addl. Sub-

Inspector, Anchalummode Police Station. After recording

statements, PW67 registered FIR (Ex.P186) under Sections

302, 307 read with Section 34 of IPC and Section 57A of the

Abkari Act.

iv. The prosecution examined 76 witnesses and marked

Exhibits P1 to P259 along with material objects (hereinafter

4 | Criminal Appeal Nos. 1134 of 2011 & 567 of 2015

'MO') MO 1 to MO 29. The defence did not adduce oral

evidence. After carefully considering the evidence produced,

the Trial Court convicted the accused persons in the manner

discussed above.

4. The Trial Court, after elaborate consideration, vide common

judgment dated 02.04.2004, convicted the accused persons facing

trial for different offences and awarded sentences there for.

Accused No.1, 2, 5-9, 10 and 11 preferred appeals from the Trial

Court to the High Court. The High Court confirmed the judgment

of the Trial Court against these accused persons. The picture

emerging is depicted in the chart below:

No.

Name

Trial Court High Court

Crime Punishment

Awarded

-

1. A1 – Thampi IPC – S.302

and 120B

Imprisonment for life

(302) and RI for 10

years (120B);

Rs.50,000 fine

Conviction

affirmed for all

offences

IPC - S.307 RI for 7 years; Rs.

50,000 fine

IPC – S.326

RI for 7 years; Rs.

50,000 fine

Abkari Act –

S.57 (A) (1)

(ii)

Imprisonment for

life; Rs. 50,000 fine

5 | Criminal Appeal Nos. 1134 of 2011 & 567 of 2015

Abkari Act –

S.55(a), (h)

and (i)

R.I. for 7 years;

Rs.7,00,000 fine

2. A2 – Saji @

Parippally

Saji

Abkari Act –

S.55(a)(i)

R.I. for 10 years; Rs.

2,00,000 fine

Conviction

affirmed for all

offences

3. A3 –

Shobhana @

Maya

Abkari Act –

S.55(a)

R.I. for 1 year; Rs.

1,00,000 fine

No appeal

preferred

4. A4 – Shaji @

Jinu Shaji

Died

5. A5 – Rajesh @

Bai

Abkari Act –

S.55(a)(i)

R.I. for 10 years; Rs.

2,00,000 fine

Conviction

affirmed for all

offences

6. A6 - Hussain

7. A7 – Sony

8. A8 – Vipin B.

Nair

9. A9 – Santhosh

10. A10 - Sajeev

A11 - Roy

IPC – S.302

and 120B

Imprisonment for life

(302) and RI for 5

years (120B);

Rs.25,000 fine

Conviction

affirmed for all

offences

IPC - S.307 RI for 5 years; Rs.

25,000 fine

IPC – S.326

RI for 5 years; Rs.

25,000 fine

Abkari Act –

S.57 (A) (1)

(ii)

Imprisonment for

life; Rs. 25,000 fine

11. Abkari Act –

S.55(a), (h)

and (i)

R.I. for 5 years;

Rs.5,00,000 fine

12. A12 –

Prasanthan

Died during Trial

6 | Criminal Appeal Nos. 1134 of 2011 & 567 of 2015

5. Accused No.1 had filed SLP (Crl.)mDiary No.2018/2016 against

the order of the High Court, which came to be dismissed by this

Court vide order dated 29.01.2016. Therefore, the conviction qua

A1 stands affirmed. No other accused preferred appeal to this

Court.

6. Accused Nos.10 and 11 have filed instant separate appeals by

special leave against the final judgment and order of the High

Court of Kerala, upholding their conviction, which were registered

as Criminal Appeal No.1154 of 2011 and Criminal Appeal No.567

of 2015.

7. The question which arises for consideration before this Court is

whether the conviction and sentence imposed by the Trial Court

and High Court on A10 and A11 are sustainable in law or not.

Trial Court and High Court Findings

8. The Trial Court in Sessions Case No.1308 of 2003, after a detailed

consideration of the voluminous evidence, gave the following

findings while convicting A10 and A11:

7 | Criminal Appeal Nos. 1134 of 2011 & 567 of 2015

i. Given the testimonies of the injured persons and family

members of the deceased and the doctors who proved the

post-mortem reports, the Trial Court held the prosecution

to have proved beyond all reasonable doubt that the cause

of death and the persons suffering injuries (except PW21)

were only due to the consumption of spurious liquor mixed

with methyl alcohol.

ii. There is overwhelming evidence on record that A1 ran an

illicit liquor business.

iii. Reliance was placed on Ramanarayan Popli v. CBI

1 and

P.K. Narayanan v. State of Kerala

2 to bring home the

charge of conspiracy and from the material testimonies of

PW23, PW24, PW11 and PW18, it is evident that on

04.04.2003, all three, i.e., A1, A10 and A11, hatched a

conspiracy and in furtherance thereof, 21 cans containing

methyl alcohol (Biosole) were delivered at the house of A1.

1

(2003) SCC (Crl.) 869

2

(1995) 1 SCC 142

8 | Criminal Appeal Nos. 1134 of 2011 & 567 of 2015

Further, on consideration of witnesses, PW25 to 35 and

PW76, the Trial Court adduced that it can be safely held

that 21 cans of Biosole transported to the house of A1 and

A3 contained methyl alcohol. It was also observed that A11

was running the firm RR Distributors which supplied the

methyl alcohol, on behalf of his brother. Reliance was also

placed on the forensic examination conducted by PW44 in

which it was opined that the 21 cans recovered by PW76

(IO) from the residence of A1, MO15 series and MO31

series (Biosole cans produced by PW27) are cast from the

same mould.

iv. The recovery of burnt plastic materials from the paramba

(lawn) of the house of A11, wherein methyl alcohol was

detected, cannot be connected with the occurrence.

9. The High Court observed that the testimony of PW11 establishes

A10 and A11 having delivered Biosole at the residence of A1 in 21

cans in a maruti car in furtherance of the conspiracy hatched with

A1. Also, records of RR Distributors, an enterprise of A11, were

9 | Criminal Appeal Nos. 1134 of 2011 & 567 of 2015

falsified by making specific entries with an endeavor to conceal the

delivery of 21 cans of Biosole to A1. Further, the Court found that

on an overall perusal of the materials on record, it cannot be said

that there was any serious infirmity or illegality in the

investigation. In view of the above findings, vide the impugned

judgment, the conviction and sentence handed down to A10 and

A11 were confirmed.

Submissions on behalf of accused persons

10. Learned senior counsel and learned counsel for both these

convicts (Appellants) submit that by no stretch of imagination can

the act of conspiracy be attributable towards them.

11. Assuming hypothetically, these convicts can be said to have

supplied spirit, which is ethanol, as an independent business

transaction. Even then, the factum of mixing and illegally selling

the end product is not attributable to them, more so, in the

absence of any element of conspiracy established beyond a

reasonable doubt; hence, there is no question of conviction under

the penal laws of the land.

10 | Criminal Appeal Nos. 1134 of 2011 & 567 of 2015

12. In so far as Section 57(1)(a) of the Abkari Act is concerned, it

was submitted the same is not applicable, for they have neither

sold nor mixed the banned product.

Submissions on behalf of the State of Kerala

13. On behalf of the State of Kerala, learned senior counsel has

submitted that the prosecution has placed sufficient evidence on

record to bring home the charge of conspiracy against A10 and

A11. A10 is a close associate of A11 and together, in a conspiracy,

they sold methyl alcohol to A1, with full knowledge of the material

being sold illegally and the purpose of its purchase.

Submissions on behalf of Amicus Curiae

14. Learned Counsel, Mr. Gaurav Aggarwal, was appointed by this

Court as an Amicus Curiae vide order dated 20.07.2023 to assist

the Court. The Amicus Curiae has submitted his submissions in

four parts, placing on record: (a) the relevant testimonies; (b) the

relevant exhibits; (c) the relevant portion of the testimonies; and

(d) a chart indicating the role played by A10 and A11.

11 | Criminal Appeal Nos. 1134 of 2011 & 567 of 2015

Our View

15. The Courts below have held A1 to be the kingpin of the illicit

liquor business. The conviction qua A1 has come to be confirmed

right up to this Court. Hence, the issues requiring consideration

are: (a) the relationship between A10 & A11, and their relationship

with A1; and (b) the role played by each one of them in hatching a

conspiracy, if any, supply of Biosole and subsequent malice in the

supply and sale of illicit liquor.

16. Undisputedly, the cause of death of the deceased is poisoning

caused by methyl alcohol. So also the persons suffering injuries

on their body parts as a result of such consumption.

17. Against this backdrop, we now proceed to examine the case of

the prosecution with respect to A10 and A11, as has unfurled

through the testimonies of the prosecution witnesses.

18. PW11, Rajesh in his testimony, has deposed that he knew A1

for having worked with him as a mason. On 05.04.2003, he was

present at the residence of A1, for doing such work. At that time,

A10 (whom he had also seen earlier) and A11 arrived at the

residence at around 7 PM in an ash-coloured maruti car. From

the car, 3-4 cardboard boxes were taken out. Also, A3 and A4

12 | Criminal Appeal Nos. 1134 of 2011 & 567 of 2015

brought 3 cans of 35L each, which were filled up with the contents

of the cans taken out from the cardboard boxes taken out by A3

and A4 from the car. After this process was over, PW11 assisted

A4, in carrying the cans to the property of Kamalamma. Further,

A10 and A11 received cash from the residence of A1 and left.

Pertinently, PW11 was one of the injured as a result of the incident

and has identified A10 and A11 in Court. He correctly identifies

the big vessel in which the cans were emptied, marked as MO14

series; the cans from the cardboard box, marked as MO15 series

(21 in number) and the maruti car of A10, marked as MO16.

Nothing material or significant is brought out in the cross-

examination part of his testimony, rendering his version to be

doubtful in any manner.

19. PW18, Vincent is a neighbor of A1. Even though this witness

turned hostile, for not remembering having seen A10 and A11, yet,

pertinently, he identified the car (MO16) of A10 in which the

methyl alcohol was brought at the residence of A1 by the

appellants. It is the settled law that the testimony of a hostile

witness can be accepted to the extent that the version is found to

be dependable on careful scrutiny thereof. Testimony of such a

13 | Criminal Appeal Nos. 1134 of 2011 & 567 of 2015

witness can be relied upon and cannot be treated as being washed

off the record. [Refer: Mohd. Naushad v. State (NCT of Delhi)

3 (3-

Judge Bench); Hari and Anr. v. State of UP.

4 (3-Judge Bench)

and Koli Lakhmanbhai Chanabhai v. State of Gujarat

5 (2-Judge

Bench)]

20. PW23, Vinod is an acquaintance of A1. He testified being privy

to the process of procuring the spirit and converting it into arrack

and seeing A10 and A11 at the residence of A1 multiple times.

Further, he corroborates the version of PW11 to the effect that both

A10 and A11 brought cardboard boxes at the residence of A1 on

05.04.2003. Also, out of these cardboard boxes, cans containing

spirit, resembling the MO15 series were emptied into huge cans.

Also, he correctly identified all the accused present in the Court.

21. PW24, Saros, a friend of A1, fully corroborates the version of

PW11 and PW23, with respect to the visit of A10 and A11 to the

residence of A1 and delivery of M015 series cans, which were

poured into 3 larger cans containing methanol, measuring 35L

each.

3

2023 SCC Online SC 784

4

2021 SCC Online SC 1131

5

(1999) 8 SCC 624

14 | Criminal Appeal Nos. 1134 of 2011 & 567 of 2015

22. From a conjoint reading of the testimonies of the above

witnesses, what comes to be established is that: (a) A10 and A11

were known to A1; (b) A10 and A11 visited the residence of A1 on

05.04.2003, in the presence of other accused

persons/independent persons; and (c) some material which is

alleged to be methyl alcohol was supplied in 21 cans, which were

emptied into 3 cans of 35L each and stored at the residence of A1.

Keeping this in mind, we proceed to examine the next set of

witnesses.

23. PW25 Sheeja, in her testimony, states that she provided her

pharmacy license to A11, which enabled him to start his firm RR

Distributors.

24. PW26, Violet worked as a receptionist in the firm of A11 by the

name of, RR Distributors at Attingal. As per her version, though

A11 is running this firm but the license is in the name of his

brother Roni (PW35). In Court, he correctly identifies A11, who is

in the business of distribution of surgical spirit, chemicals, needles

and lab equipment for which a stock register was maintained. The

firm had purchased 24 cans, being 5L each of Biosole from another

15 | Criminal Appeal Nos. 1134 of 2011 & 567 of 2015

firm in Veli. She testifies to the order book (Ex.P4), the stock

register (Ex.P5) and the bill book (Ex.P6) and to the following

transactions being recorded in the bill book concerning Biosole (21

cans in total):

i. Medical Lab purchased 5 cans on 01.03.2003, Ex.P6(a).

ii. Southern Lab purchased 2 cans on 06.03.2003, Ex.P6(b).

iii. Saj Hospital purchased 1 can on 08.03.2003, Ex.P6(c).

iv. KV Hospital purchased 2 cans on 12.03.2003, Ex.P6(d).

v. Holy Cross purchased 1 can on 14.03.2003, Ex.P6(e).

vi. Parvathy Lab purchased 4 cans on 15.03.2003, Ex.P6(f).

vii. Koshy Dental Clinic purchased 1 can on 22.03.2003,

Ex.P6(g).

viii. City Hospital purchased 2 cans on 26.03.2003, Ex.P6(h).

ix. Metro Lab purchased 1 can on 31.03.2003, Ex.P6(i).

x. Cosmos Lab purchased 1 can on 02.04.2003, Ex.P6(j).

xi. Modern Lab purchased 1 can on 04.04.2003, Ex.P6(k).

25. PW27 Ramesan is the owner of the firm that sold Biosole to RR

Distributors firm as deposed by PW26. He testifies the factum of

placing the order of and delivery of 24 cans of 5L each to the said

firm, vide bill (Ex.P12). He unrefutedly identified A11 in Court and

16 | Criminal Appeal Nos. 1134 of 2011 & 567 of 2015

pertinently, testified that the Biosole delivered by him was in the

cans similar to MO15 series, which were marked as MO31 series,

being the sample jar containing Biosole containing 100% methyl

alcohol.

26. With the transaction of purchase and delivery of Biosole having

been established beyond reasonable doubt, what needs to be

examined further is also whether the record maintained by the

firm of A11 was fabricated or not. In doing so, we examine the

testimonies of the alleged purchasers, as depicted in the record.

27. PW28, Dr. Neelananda Sarma, running Ansar Hospital, denies

having purchased Biosole from RR Distributors. On similar lines,

PW29 Dr. A.M. Abdul Kuthoor, running City Hospital; PW30, Dr.

Vijaya Chandran Nair, running KV Hospital; PW31 Sunil, running

Cosmos Lab; PW32 Biji B, assistant at Koshy Dental Clinic and

PW33 Dr. Roy George deny having made any purchase of Biosole

from RR Distributors and denied the bill receipts marked by PW26.

Thus, belying the defence set up by the appellants of having

supplied the goods to these persons, rendering such entries being

fictitious.

17 | Criminal Appeal Nos. 1134 of 2011 & 567 of 2015

28. PW35, Roni is the elder brother of A11. He deposed that he is

running a firm called RR Distributors, for which he has obtained

a license. PW26 is the receptionist. This witness denies having

made an earlier statement to the police and is declared hostile.

Hence, in the cross-examination part of his testimony, it is

revealed that the stamp paper of the Rent Deed (Ex.P14) was

purchased in the name of A11.

29. The above witnesses bring to light the fact that actually it is

A11, who is running and managing the firm RR Distributors.

Further, Biosole, which contains 100% methyl alcohol was

procured by A11 through his firm, RR Distributors. This methyl

alcohol is shown to be sold to several different entities. However,

PW28 to PW33, the alleged buyers, have denied making any such

transactions or taking delivery of the alleged cans containing

methyl alcohol.

30. Therefore, it is entirely clear that the transactions reflected in

the register of RR distributors (Ex.P6) were fictitious and the

record prepared was only to show sales ostensibly to genuine

customers, as per the process of law. The natural corally, thereto,

being that A11, through his firm purchased Biosole but failed to

18 | Criminal Appeal Nos. 1134 of 2011 & 567 of 2015

provide any valid source to whom it was supplied or where it was

used, which fact he failed to rebut.

31. We now discuss the forensic evidence against these accused

persons at this stage.

32. PW44, James Philipose is the Joint Director (General) at FSL,

Trivandrum. He verified having prepared the FSL Report (Ex.P30),

which bears his signature. His examination of the plastic cans of

MO15 and MO31 series revealed the same to have been cast from

the same mould. Significantly, this fact remains unrebutted on

record. Also, from this testimony, it is seen that the cans of MO15

series [recovered from the residence of A1 by PW76], which, as

discussed above, stand proved to have been supplied by A10 and

A11 to the residence of A1 and the cans of MO31 series, which is

the sample of the cans provided by PW27 in the sale of Biosole, are

of the same make and mould.

33. The next witness to be discussed is PW51, Sindhu. In his

testimony, he states that he conducted the FSL examination of

MO33 series cans (35L each). Out of the 5 cans tested, ethyl +

methyl alcohol was found in 2 cans and methyl alcohol was found

in 3 cans.

19 | Criminal Appeal Nos. 1134 of 2011 & 567 of 2015

34. These witnesses reveal two pertinent facts: (a) The cans

supplied by A11 to A1 are from the same mould of cans that were

supplied by PW27 to A11, on purchase of methyl alcohol; and (b)

3 out of 5 cans recovered from the residence of A1 tested positive

for methyl alcohol.

35. After consideration of these depositions, we must decide

whether the evidence on record is sufficient to establish a

conspiracy under Section 120B, IPC. The ingredients to constitute

a criminal conspiracy were summarised by this Court in State

through Superintendent of Police v. Nalini & Ors.

6 (3-Judge

Bench). They are as follows:

i. Conspiracy is when two or more persons agree to do or

cause to be done an illegal act or legal act by illegal means.

ii. The offence of criminal conspiracy is an exception to the

general law, where intent alone does not constitute crime.

It is the intention to commit a crime and join hands with

persons having the same intention.

6

(1999) 5 SCC 253

20 | Criminal Appeal Nos. 1134 of 2011 & 567 of 2015

iii. Conspiracy is hatched in private or in secrecy. It is rarely

possible to establish a conspiracy by direct evidence.

Usually, the existence of the conspiracy and its objects

have to be inferred from the circumstances and the

conduct of the accused.

iv. Where in pursuance of the agreement, the conspirators

commit offenses individually or adopt illegal means to do

a legal act that has a nexus to the object of the conspiracy,

all of them will be liable for such offenses even if some of

them have not actively participated in the commission of

those offenses.

36. These principles were followed in Yakub Abdul Razak Memon

v. State of Maharashtra

7 (2-Judge Bench), wherein this Court

reiterated that to establish conspiracy it is necessary to establish

an agreement between the parties. Further, the offence of criminal

conspiracy is of joint responsibility, all conspirators are liable for

the acts of each of the crimes which have been committed as a

7

(2013) 13 SCC 1

21 | Criminal Appeal Nos. 1134 of 2011 & 567 of 2015

result of the conspiracy. [See also: Arvind Singh v. State of

Maharashtra

8 (3-Judge Bench); Mohd. Naushad (supra)]

37. Applying these principles to the case at hand, as discussed

above, it is established that (a) A10 and A11 were known to A1; (b)

A10 and A11 visited the residence of A1 on 05.04.2003, in the

presence of other accused persons; (c) Methyl alcohol was supplied

to and stored at the residence of A1, with the knowledge that the

substance being sold was harmful; (d) A11 was running the affairs

of the firm RR distributors which procured methyl alcohol at the

first instance and fabricated record of its sale to different entities;

(e) There is no dispute about the causation of deaths and injuries.

Hence, the argument on behalf of the present appellants that they

did not know A1 and were nowhere connected with the present

crime is untenable and cannot be accepted. Therefore, the

prosecution has succeeded in establishing the offence of criminal

conspiracy of A10 and A11 with A1 (conviction of whom stands

affirmed).

8

(2021) 11 SCC 1

22 | Criminal Appeal Nos. 1134 of 2011 & 567 of 2015

38. Another aspect to be considered is the destruction of evidence

by A11, as submitted by both the learned Amicus Curiae and the

State of Kerala.

39. K.J. Devasia (PW76), the Investigating Officer, has deposed that

in his presence, PW51 collected materials/samples from land at

the southern side of the residence of A11 which was marked as

MO49 to MO53. This was in furtherance of information given by

A11.

40. PW51, FSL Assistant Director tested these samples, who in his

deposition stated that except for MO52, these samples consisted

of burnt plastic and soil, which all pertinently tested positive for

methyl alcohol. This supplements the prosecution story that A11

attempted to destroy evidence at his residence by burning the

incriminating material connecting him to the crime. In similar

circumstances, this Court in State of Haryana v. Krishan

9 (2-

Judge Bench) while convicting the respondents therein placed

reliance on the conduct of those accused in attempting to destroy

evidence to connect them to the larger conspiracy. Applying this

9

(2017) 8 SCC 204

23 | Criminal Appeal Nos. 1134 of 2011 & 567 of 2015

reasoning to the evidence at hand, we disagree with the Trial Court

observation that A11's firm had a license for methyl alcohol and

there is no connection between this piece of evidence and the

occurrence of the incident. Per contra, there is no reason for the

soil sample drawn from the residence of A11 to test positive for

burnt plastic residue and methyl alcohol, connecting this material

to the incident in question.

41. Notably, no less than 627 questions/circumstances were put to

A10 and A11 each under Section 313 of the Code of Criminal

Procedure, 1973. This Court has clarified on numerous occasions

that in law, the accused has a duty to furnish some explanation of

an incriminating circumstance, with the prosecution crossing the

threshold of proving its case beyond reasonable doubt. However,

no explanation, much less, a plausible one, is put forth. In the

event of complete denial or silence, the Court is entitled to draw

an adverse inference against the accused. [Ref: Phula Singh v.

State of Himachal Pradesh

10 (2-Judge Bench); Indrakunwar v.

State of Chhattisgarh

11 (2-Judge Bench)] Applying this to the

10

AIR 2014 SC 1256

11

2023 SCCOnline 1364

24 | Criminal Appeal Nos. 1134 of 2011 & 567 of 2015

case at hand, in the statements under Section 313, the accused

persons failed to justify the incriminating circumstances

appearing against them.

42. Apart from the offences under the Penal Code, the accused

stand convicted under provisions of the Abkari Act. Thus, it is

pertinent to discuss the relevant Sections of the Abkari Act under

which these accused persons have been convicted. The relevant

portion of Section 57A of the Abkari Act reads as follows:

“S.57A - For adulteration of liquor or intoxicating

drug with noxious substances, etc. -

(1) Whoever mixes or permits to be mixed any

noxious substance or any substance which is likely

to endanger human life or to cause grievous hurt to

human beings, with any liquor or intoxicating drug

shall, on conviction, be punishable-

(i) if, as a result of such act, grievous hurt is

caused to any person, with imprisonment for a term

which shall not be less than two years but which

may extend to imprisonment for life, and with a fine

which may extend to fifty thousand rupees;

(ii) If, as a result of such act, death is caused to

any person, with death or imprisonment for a term

which shall not be less than three years but which

may extend to imprisonment for life, and with fine

which may extend to fifty thousand rupees;

…..

25 | Criminal Appeal Nos. 1134 of 2011 & 567 of 2015

(5) Notwithstanding anything contained in the

Indian Evidence Act, 1872 (1 of 1872),- (a) where a

person is prosecuted for an offense under sub -

section (1) or sub-section (2), the burden of proving

that he has not mixed or permitted to be mixed or,

as the case may be, omitted to take reasonable

precautions to prevent the mixing of, any substance

referred to in that sub-section with any liquor or

intoxicating drug shall be on him"

(Emphasis supplied)

43. This Court extensively dealt with Section 57(A)(1) of the Abkari

Act in Chandran v. State of Kerala

12 (2-Judge Bench). It is

observed that the offence under Section 57A is not limited to the

holders of the license under the Act, but refers to anybody who

mixes or permits to be mixed any noxious substance, likely to

endanger human life with any liquor. The burden of proof on the

accused person under sub -Section 5 of Section 57A stands

constitutionality upheld of which has been upheld by this Court

in P.N. Krishna Lal v. Govt. of Kerala

13 (2-Judge Bench).

44. This Court in Chandran (supra) also dealt with the question of

conspiracy and mens rea for a conviction under Section 57A of the

12

(2011) 5 SCC 161

13

1995 Supp (2) SCC 187

26 | Criminal Appeal Nos. 1134 of 2011 & 567 of 2015

Abkari Act. While confirming the conviction of one of the co-

accused persons along with the main accused, it was held that the

conviction under Section 57(A)(1)(ii) of the Abkari Act is

independently affirmed, as he was not only part of the business of

mixing methanol but had actively taken part in it. Such taking

part was held to be sufficient to infer the knowledge about the

mixing of the spirit. We find it pertinent to reiterate one of the

observations therein, relevant to the case at hand:

“117. There can be no question about the absence of

conspiracy. The whole business itself was a conspiracy.

It may not be the conspiracy to mix the noxious

substance but the fact of the matter is that in order to

succeed in the business which itself was a conspiracy

they mixed or allowed to be mixed methanol and used it

so freely that ultimately 31 persons lost their lives. We

are not at all impressed by the argument regarding

knowledge.”

(Emphasis supplied)

45. Therefore, the argument on behalf of the appellants that the

offence under Section 57(A)(1)(ii) of the Abkari Act is not

attributable to them has to be rejected.

27 | Criminal Appeal Nos. 1134 of 2011 & 567 of 2015

46. Keeping in view the above conspectus and position of law, in res

gestae Section 6 and Section 8 of the Evidence Act applies,

inasmuch as: (a) testimonies of the witnesses highlighted by the

Amicus Curiae indicate the presence of the accused/convicts on

the spot at least few days prior to the occurrence of the incident;

(b) the accused/convicts being present on the spot in relation to

the supply of the spirit; (c) the accused/convicts knowing that they

were being in full knowledge of the substance supplied by them to

be of poisonous/prohibited in nature and permitted the noxious

substance to be mixed with liquor, likely to endanger human life

(d) the convict A11 having forged the record concerning the supply

of the poisonous/prohibited substance.

47. Lastly, the relevant portion of Section 55 of the Abkari Act

reads:

“55. For illegal import, etc. - Whoever in

contravention of this Act or of any rule or order made

under this Act:

(a) imports, exports, [transports, transits or

possesses] liquor or any intoxicating drug;

or

xx xx xx

(h) bottles any liquor for purposes of sale; or

(i) Sells or stores for sales liquor] or any

intoxicating drug.”

28 | Criminal Appeal Nos. 1134 of 2011 & 567 of 2015

48. For the sake of brevity, we need not reiterate the evidence

relating to the transport, bottling and sale of methyl alcohol.

Alcohol as mentioned in Section 55, has been defined under

Section 3(10) as any liquid consisting of or made of alcohol.

Therefore, there can be no dispute that Section 55 applies to the

transmission of methyl alcohol. It has been established that the

methyl alcohol was first purchased by A11, then shown to be sold

to different entities, however, it was provided to A1. These accused

persons have been established to be in conspiracy for common

objectives throughout. Therefore, the conviction of A10 and A11

has to be upheld under Section 55(a)(h) and (i) of the Abkari Act.

49. There can be no doubt left about the involvement of the accused

persons before us, in the sale and mixing of methyl alcohol with

spirit as part of the conspiracy, resulting in deaths and injuries to

many innocent persons. The conviction of A10 and A11 unde r

Sections 302, 307, 326 and 120B IPC and 57(A)(1)(ii) of the Abkari

Act has to be upheld.

50. We therefore find that the conclusion and conviction arrived

concurrently by the High Court and Trial Court regarding the role

29 | Criminal Appeal Nos. 1134 of 2011 & 567 of 2015

played by these accused persons in this tragedy does not suffer

from any infirmity and does not warrant interference of this Court.

51. Independent of the above discussion, this Court has time and

again reiterated that interference in concurrent convictions is only

warranted when:

i. The finding is perverse.

ii. The finding is based or built on inadmissible evidence.

iii. The Courts below have not considered or wrongly

discarded vital pieces of evidence that would tilt the

balance in favor of the accused.

[Ref: Mekala Sivaiah v. State of A.P.

14 (2-Judge Bench);

Ravasaheb and Ors. v. State of Karnataka

15 (3-Judge Bench)]

On a perusal of the High Court and Trial Court judgments,

it is our view that the present appellants have made out none

of the above circumstances warranting interference of this

Court.

52. We place on record with appreciation for the assistance

rendered by the Learned Amicus Curiae.

14

(2022) 8 SCC 253

15

(2023) 5 SCC 391

30 | Criminal Appeal Nos. 1134 of 2011 & 567 of 2015

53. In view of the above, the Appellants' challenge to the impugned

judgment fails.

54. After the judgment was dictated, we have been informed vide

letter dated 31.10.2023, that one of the appellants, namely, Sajeev

(A10 - Criminal Appeal No.1134 of 2011), has passed away on

24.09.2023. In that view of the matter, the appeal qua his

conviction stands abated.

55. Criminal Appeal No.567/2015 , preferred by A11 (Roy) is

dismissed. The bail granted to A11 by this Court vide Order dated

30.06.2016 stands cancelled and the appellant is directed to

surrender before the Court concerned forthwith.

56. Before parting with the present appeals, we deem it appropriate

to deprecate the practice of depositions of material witnesses not

being placed on record, as recorded in our order dated 20.07.2023.

We have observed that such practices often cause repeated

adjournments, which goes to the root of pendency and delay in

disposing of appeals. Therefore, it is incumbent upon us to provide

suggestions, in tackling this issue.

57. In this backdrop we must refer to Order XX of the Supreme

Court Rules, 2013 (referred to as ‘the Rules’), which concerns

31 | Criminal Appeal Nos. 1134 of 2011 & 567 of 2015

criminal appeals. A perusal of sub-Rules 2 & 3 of Rule 5 thereof

shows that physical copies of the original records are to be called

for, in criminal appeals involving sentence of life or the death

penalty. In all other cases, the calling of such records is subject to

specific orders of a Bench of this Court.

58. We suggest the following:

i. Sub-Rule 3 be amended to insert the words ‘soft copy’

before the words ‘original records’, resulting in e-copies of

the Original Records being requisitioned. This would

facilitate a much quicker availability of such records to the

court as also further a more environmentally conscious

approach.

ii. Further, vide necessary amendment to the Rules such

requisition of the soft copy of the record be extended to

cases where leave is granted against an order of acquittal

or conviction.

iii. Such soft copy of the records, once received be provided to

the learned counsel appearing for the parties.

32 | Criminal Appeal Nos. 1134 of 2011 & 567 of 2015

59. We direct the Registry to place a copy of this judgment before

Hon’ble the Chief Justice of India for his kind consideration and

appropriate directions, should he deem fit.

60. Interlocutory applications, if any, shall stand disposed of.

…..………………..J.

(ABHAY S. OKA)

…………………….J.

(SANJAY KAROL)

Dated: 9

th

November, 2023;

Place: New Delhi.