CHANDRAN @ MANICHAN @ MANIYAN versus STATE OF KERALA

32. Shri Radhakrishnan, learned Senior Counsel very seriously argued that even if the evidence of this witness is C entirely accepted, it does not suggest that A-7 himself mixed the methyl alcohol with the spirit and, therefore, there could be no question of his being booked under Section 57A of the Abkari Act. We have already explained the real scope of Section 57A. For being convicted under that Section, it is not necessary that the person concerned. must himself do the D mixing. It is obvious. that A-7 was the boss. In fact PW-53 . describes him as the boss.· it is, therefore, obvious that everything was done as per his command and if it was so, then in· order to be convicted under Section 57 A, the prosecution is not required to prove that A-7 physically mixed the methyl E alcohol or the injurious substance with the spirit. In our opinion, even if A-7 commanded his servants to mix up, he is equally guilty under the Section.

In fact illegally importing ethyl alcohol and mixing the same with methanol. was a regular trading activity on the part of A-7. The licences for running the toddy shops was merely a facade. He had undoubtedly put a very tall bid for those licences and could not have afforded to continue merely on the basis of those 26 toddy shops. The High Court has rightly referred to that part and we approve of the High Court's findings in that behalf. Therefore, he gave his business G a complete new turn, that is, instead of selling toddy through these outlets he started selling alcoholic drink prepared from ethyl alcohol and methanol and that illegally imported both and all this was going on with the corrupt cooperation of those who could have checked it. Therefore, it is a proved position from [2011) 8 S.C.R. the evidence of PW-53 that A-7 was the boss of the illegal trade. He got the methanol imported and used his godown which he rightfully possessed on account of his licences for 26 shops. · Therefore, his knowledge that methanol was being mixed, the fact that he was running the business along with his hirelings and the further fact that he used to be present at the time of the mixing are properly proved by the prosecution with the aid of testimony of PW-53 and are enough for a finding about Section 57A (1) (ii).

33. PW-53 very specifically deposed that on 19.10.2000 around midnight mixing was done by A-20, 21, 22 and 23 and that methanol was brought by A-16 in the Fiat car with secrete chambers and ethyl alcohol was brought by PW-48, K. Sivaram in a truck to the Pandaksala godown. There can be no doubt that PW-53 was present there and had seen this. Shri Radhakrishnan tried to take advantage of this evidence suggesting that it was A-20 to 23 who were actually mixing " methanol which was delivered by the workers of A-4 from the godown in the very same night. From this, Shri Radhakrishnan tried .to argue that it was not actually mixed by A-7. It was clear that this mixing took place at Pandaksala godown owned by A-7. Shri Radhakrishnan also pointed out that the High Court had held that the accused No. 7 was liable to be convicted for offence under Section 57A (1) (ii). It was also pointed out by him that the High Court had observed that he could not be convicted under Section 57A (1) (i) and (iii). In short, the :contention is that since according to the evidence of PW-53, A-7 had not himself mixed or did not permit to be mixed noxious substance endangering the human life with any liquor or intoxicating drug A-7 could not be convicted for the offence under Section 57 A 1 (ii) also.

34. The argument is clearly fallacious. We have already pointed out that it was not necessary that A-7 had physically mixed the methyl alcohol for his being convicted. It was actually done on his command and within his knowlege. His offence CHANDRAN @ MANICHAN @ MANIYAN v. STATE 325 OF KERALA could also come within the definition on account of the other words of the· Section 'or permits to be mixed'. While interpreting these words, namely, 'whoever mixes or permits to be mixed' the real import of the words would have to be taken into consideration and thereby if A-7 directed his servants to mix methanol with methyl alcohol that would also be covered within the scope of the words 'mixes or permits to be mixed' in the Section. It has already come in the evidence that all this mixing was done at the Instance of, with the direction of and to the knowledge of the accused No. 7. He was the king pin or the main actor on whom the huge business of liquor trade rested. c It cannot, therefore, be said that the conviction under section 57A (1) {ii) was in any manner incorrect. Of course that would be only and only if the evidence of PW-53 along with other relevant witnesses held to be reliable.

35. There is no reason for us to discard the testimony of PW-53 which was read word to word before us by Shri Radhakrishnan. We find that the evidence was most natural and was not shaken in any manner in his cross-examination. He has given a complete graphic description of what happened. He claimed that he was working with A-7 from March, 2000 in the godown and before that he used to supply spirit in different places for A-7. He gave the names of persons working in the Pandaksala godown. He referred to methanol as 'essence' and pointed out that essence was added to th~ spirit collected in syntax tank to make Kalapani and then if used to be filled in the plastic vessels having capacity of 35 litres. He pointed out that the spirit was poured in the small syntax tanks and little toddy, water, powder etc. were mixed and essence used to be added to it and that substance and then it used to be filled in the bottles.

He gave graphically the details of the operations and also deposed that apart from the 26 toddy shops, his boss was running 75 shops without licences and it was a small scale industry. He asserted that it is only the things supplied by the boss which are sold in those shops. He asserted that when the essence was mixed in the spirit the A vitality would increase. He also described the role of Anil Kumar (A-16) who used to bring essence and come only on certain days in month mostly on Thursdays. He also described the Fiat car and the secret tank and pointed out that the essence brought therein used to be filled in plastic vessels having capacity of B 35 litres through pose and by using hand motor and essence used to be added to the spirit in the tank and then the concoction used to be supplied for sale. He spoke about the night when the whole operation took place and involved A-4, A-22 and A-21.

He pointed out that alcohol came in the tanker c at night. The concoction was prepared by accused Vijayan, Suresh, Monkuttan and Rasool. Three cars came thereafter being white Maruti Van, red Maruti car and Blue Maruti car. After mixing, the cars were sent of. The said material was taken to the dealers of A-7. He has also spoken as to what happened 0 on 21.10.2000 when accused Balachandran and A-7 came and A-7 gave a beating to Vijayan asking him as to how mixing was not properly done. He then directed the whole remaining material to be poured into the river and to destroy the cans. Accordingly, as per the direction, the concoction in the Syntex E tank was poured in the river and the cans and the covers were burnt and buried under the sand. He pointed out that the essence mixed spirit was taken to the shed belonging to A-7 Attukadavu. He spoke about the electronic machine, hand machine and the process of filling the concoction in the plastic cans.

He pointed out that on that day all the plastic covers were F burnt by them. A-7 had also directed the witness and the other servants to remain absconding. In his cross-examination, he not only identified A-7 but called him Boss and Annan, ~Ider brother. Some irrelevant questions were put to him which he answered suggesting that the property belonged to A-7 and the god own G also belonged to him and the mixing used to be done there only.

36. We have seen the whole evidence very carefully. Though he was subjected to lengthy cross-examination, the main story about the mixing has not suffered any dent. On the other H hand, the operation of mixing was explained again in the cross- CHANDRAN @ MANICHAN @ MANIYAN v. STATE 327 OF KERALA examination. He owned up that he himself carried Kalapani on number of occasions to the various shops of A-7. The evidence given by this witness sounds truthful because he has not tried to justify himself nor has he· made any efforts to save himself. Most of the cross-examination was stereotyped, limiting to the minor omissions in his statement under Section 161 and 164 Cr.P.C. Even at the instance of the other accused persons, nothing much has come about in his cross-examination. In his cross-examination by A-4, he again explained the role of Anil Kumar who brought methanol and asserted the role played by A-4. In the cross-examination by A-5, A~6. and A-1 also merely C some omissions were brought which were insignificant. However, considering the whole evidence, this witness is creditworthy.

37. Shri Radhakrishnan, however, pointed out that the evidence of this witnes$ is in the nature· of evidence of an accomplice and has to be red in the light of Section 133 C'lnd Section· 1148 'Of the Indian Evidence Act and· that he also reiterated the settled principles that an accomplice must be tested with respect to his reliability and if he is unreliable his evidence cannot be the basis of the prosecution case. Learned counsel further argued that if the witness is .found reliable then his evidence must be corroborated in material particulars. Learned senior counsel relied on Shankar @ Gauri Shankar v. State of Tamil Nadu (1994 (4) SCC 478] as also Rampa/ Pithwa Rahidas v.State of Maharashtra (1994) Suppl. (2) SCC 73, more particularly, in paragraphs 14 and 15 in the previous case and paragraph 9 in the latter case.

38. Shri Radhakrishnan further argued that the witness had stated that he was in good terms with A-7 and that he did not quarrel with A-7. This was suggested as a strange conduct He also pointed out that the witness. had stated that he had acted under the instructions ofhis boss. ltis seen from the evidence that he was a minion of his boss i.e. A-7 and he answered that he gave all the answers to the police as per the in$tructions [2011) 8 S.C.R. given to him by A-7 there is nothing unnatural in it. He was a very small fry as compared to a mighty businessman like A-7 and it was suggested by Shri Radhakrishnan that his evidence did suggest that his behaviour was strange. Shri Radhakrishnan insisted that this witness was insisting that he had good B relations with A-7 and yet he deposed against A-7 and this, amounted to strange behaviour. Under the peculiar circumstances of this case considering the position of this witness vis-a-vis A-7, we do not think that this amounts to a very strange behaviour on account of which this witness should C be stamped with as an unreliable witness.

Shri Radhakrishnan pointed out that PW-53 was under the tutelage of the police from 20th November and was tutored by the police. His Section 164 statement seems to have been recorded on 15th January and Section 161 statement was prior. to that. Shri Radhakrishnan pointed out that both his statements were clubbed together and there he himself admitted having committed the offence under the Abkari Act. Shri Radhakrishanam, therefore, argued that the police should have arrested him but the police neither arrested him nor included him in the array of accused. Instead the prosecution planted him as a prosecuti9n witness. In that the learned counsel further argued that the prosecution did not also resort to the procedure under section 306 for claiming pardon for the witness nor did not prosecution join him later on as an accused under section 319 of the Cr.P·.c. The learned counsel further argued that the police were very soft towards PW-53 who was an accused in two Abkari cases.

He was also immediately granted bail in those cases and, therefore, the prosecution had acted it in an unfair manner. Le~rned senior counsel also suggested that PW-53 was on inimical terms towards A-7 and, therefore, his G evidence would have to be evaluated with caution. Shri . Radhakrishnan also urged that there were number of prevarications, inconsistencies, discrepancies, improvements and omissions in the testimony of PW-53 which were highlighted by the learned counsel. Ultimately it was argued that H his evidence was even not materially corroborated. · CHANDRAN @ MANICHAN @ MANIYAN v. STATE 329 OF KERALA

39. Learned counsel also argued that the evidence of PW- 53 could not materially prove ingredients of offence, namely, mixes or permits to be mixes, under section 57A (1) (i} at Pandaksala godown. Sudheer, PW-60 was described as a planted witness while Dennis A.(PW-61) was said to be a chance witness. It was also argued that at the most A-7 could have been convicted under section 55 (a} (g} (h} (i} and 58 of the Abkari Act as it was not proved that he had mixed or permitted to mix methanol with ethyl alcohol for selling the same in the market. Shri Radhakrishnan also argued that though the burden of proof under Section 57A (5) was on the accused, the C prosecution has miserably failed to project the case of Section57A (1) (i} and (ii} and the accused has discharged his burden under Section 55 by adverting to the evidence in the case in hand.

40. Lastly, it was pointed that there was no question of any D conspiracy and even if there was any conspiracy all the links in the conspiracy were snapped by A-13, 14 and 48. It was pointed out that in fact it was A-17 who had placed the order for methanol with the chemical company and entrusted the two barrels of methanol to A-16 to import the same to Kerala. However, A:17 stood acquitted. So also A-12, 13, 143 and 48 . who were alleged to have brought ethyl alcohol for mixing were also acquitted. Therefore, it was suggested that no ethyl alcohol was brought at all and the methanol was also not mixed much less at the instance of A-7.

41. Before we consider the other contentions which we have referred to in the earlier paragraphs, we must first consider the argument of Shri Radhakrishnan regarding PW-53 being an accomplice and the so-called unfairness on the part of G prosecution in not prosecuting him or not proceeding under section 306 Cr.P.C. The learned Counsel was vociferous in further suggesting that the evidence of this witness firstly is not reliable as it is not corroborated in material particulars as required under section 133 and 114 B of the Indian Evidence H [2011) 8 S.C.R. Act. We have already pointed out that his evidence was generally found to be reliable as there is very little in his cross- examination which will destroy his testimony or would even affect it in any manner. In fact it was not our task, in the Supreme Court to re-appreciate the evidence, particularly, when both the Courts below have not only appreciated it but have accepted the same after thoroughly discussing the intricacies and the small little details of his evidence.

However, we have done that exercise in the light of the contention raised that this witness was not reliable and was not corroborated in material c particulars. In fact there are very weighty corroborations to the evidence of this witness. We must refer to the evidence of PW- 60, Sudheer who is the driver. He deposed that he got acquainted with A-16, Anil Kumar and he assured him of a job. It was at his instance that he went to Husur and he was engaged to drive the Fiat car which was to collect some material from there to Chirayinkeezhu. He thus, went to Chirayankeezhu in the car having registration No. TMY 87 46. He referred to the secret chamber in that car and through his conversation with A-16, he also came to know that the material that he was carrying in the secret chamber was poison. He referred to the godown of A-7 which was 6-7 Kms. away from Atitingal Junction. He also met A-7 and said that he used to pay the price of the stuff and in his absence, Manikantan@ Kochani (A-4) used to make the payment.

He referred to the last Thursday when claimed that he had brought the stuff to Chirayinkeezhu and came to know about the liquor tragedy on Sunday when he was in Husur. He has deposed that the stuff which he brought on Thursday in the car was unloaded in A-7's godown and on that day A-7's workers were there. This evidence is in complete corroboration of the evidence of PW-53 in whose presence the car was brought by A-16, Anil Kumar. He described that the stuff which was purchased used to be filled in the secret chambers of the car and after the tragedy, he was also told by A-16 to leave the place. The witness had also identified A-7 and A-16 as also A-4, Kochani. He also identified the Fiat car. It is to be noted that when the samples were taken from this car, it was positive CHANDRAN @ MANICHAN @ MANIYAN v. STATE OF KERALA for methanol. Shri Radhakrishnan also did not contest this position.

Most of his cross-examination is irrelevant. Some irrelevant and inadmissible questions were also put to him in the cross-examination in relation to his statement to the police. It was tried to be suggested that the stuff that he had brought in that car was not methanol or poison. However, his evidence on the whole establishes that he had met Anil Kumar and was working for him. Apart from A-7, there was cross-examination at the instance of A-17, A-16 and A-4. There will be no question about A-17 since he has already been acquitted. However, we do not find anything suspicious in the evidence of this witness c even in his cross-examination of A-16 and A-4. This witness has been believed by the Trial Court and the appellate Court and, in our opinion, the evidence of this witness provides complete corroboration to the evidence of PW-53. This is apart from the fact that there is another piece of evidence which corroborates the evJdence of PW~53 which is to be found in the evidence of K. K. Joshua, PW-270.

The description given by the I nvestigatirig Officer, K. K. Joshua on his searches of the places and, more particularly, of the places as described by PW-53 completely tallies. These are also material particulars which would lend support to the testimony of PW-53. Shri Joshua has given the graphic description of all the places where the activity of mixing used to go on. He has also spoken about all the six vehicles found on the spot and some of which were with fake registration number. He has spoken about the search at Tabuk Industries where a black can having capacity of 10 litres was found and on eastern side of that building there was a platform build and near it pump sets and hoses were also kept. He has referred to the liquid which was collected. He has also spoken about the synthetic tank having capacity of five thousarid litres which was kept on the platform. He has also referred to the synthetic tank with spirit found there.

He had taken samples D-1 to D-18 which were ultimately found with ethyl alcohol. He had also searched the toddy godown in Ushus building which was on the southern side of Ushus building at Pandaksala. He has also spoken about the Pattarumadom A house of A-7 at Kunthalloor where also two underground cellars were found wherefrom also he collected samples. He has also referred to Chirayinkil where cans were recovered. On the whole there are number of other corroborations to the evidence of PW-53. The Trial Court and the appellate Court have referred B to the said corroborations and have given a finding that his evidence was materially corroborated in material particulars. In that view we need not take on ourselves the task of referring to all the corroborations. In paragraph 69 of the judgment of the appellate Court, the discussion has come about the evidence c of this witness and we are satisfied by that.

The appellate Court has also discussed about the ill-effects of methanol and has recorded a fjnding that the samples taken from the place belonging to A-7, more particularly, the syntax tanks, cans and other equipments, it was found that there was ethyl alcohol and 0 methanol. We are satisfied with the findings given by the appellate co4rt and the Trial Court and, therefore, we accept the evidence of this witness.

42. The argument raised was that this evidence could not be taken into consideration and it would be inadmissible E because this witness, though was an accomplice he was neither granted pardon under Section 306 Cr.P.C. nor was he prosecuted and the prosecution unfairly presented him as a witness for the prosecution. The contention is clearly incorrect in view of the decision of this Court in Laxmipat Choraria & F Ors. V. State Of Maharashtra [AIR 1968 SC 938]. While commenting on this aspect, Hidayatullah, J. observed in paragraph 13 that there were number of decisions in the High Courts in which the examination of one of the suspects as the witness was not held to be legal and accomplice evidence was G received subject to safeguards as admissible .evidence in the case. The Court held: "On the side of the State many cases were cited from the High Courts in India in which the examination of one of the suspects as a witness was not held to be illegal and CHANDRAN @ MANICHAN @ MANIYAN v. STATE 333 . OF KERALA accomplice evidence was received subject to safeguards A as admissible evidence in the case. In those cases, s. 342 of the Code and s. 5 of the Indian Oaths Act were considered and the· word 'accused' as used in those sections was held to denote a person actually on trial before a court and not a person who could have been so B tried. The witness was, of course, treated as an accomplice. The evidence of such an accomplice was received with necessary caution in those cases. These cases have all been mentioned in In re Kandaswami Gounder (2), and it is not necessary to refer to them in C detail here. The leading cases are: Queen Emperor v. ·Mona Puna (3), Banu Singh v. Emperor (4), Keshav Vasudeo Kortikar v. Emperor (5) , Empress v. Durant (6), Akhoy Kumar Mookerjee v. Emperor (7), A. V. Joseph v. Emperor () Amdumiyan and others v. Crown(8), D Galagher v. Emperor (10), and Emperor v. Har Prasad, Bhargava (11 ). In these cases (and several others cited and, relied upon in them) it has been consistently held that the evidence of an accomplice may be read although he could have been tried jointly with ~he accused. In some of E these cases the evidence was re-ceived although the procedure of s. 337, Criminal Procedure Code was applicable but was not followed. It is not necessary to deal with this question any further because the consensus of opinion in India is that the competency of an accomplice is not destroyed because he could have been tried jointly with the accused but was not and was instead made to give evidence in the case. Section 5 of the Indian Oaths Act and s. 342 of the Code of Criminal Procedure do not ·G stand in the way of such a procedure." The Court finally observed: "It is not necessary to deal with this question any further because the consensus of opinion in India is that the H (2011] 8 S.C.R. competency of an accomplice is not destroyed because he could have been tried jointly with the accused but was not and was instead made to give evidence in the case." c The Court has also observed in paragraph 11: The position that emerges is this : No pardon could be tendered to Ethyl Wong because the pertinent provisions did not apply.

Nor could she be prevented from making a disclosure, if she was so minded. The prosecution was not bound to prosecute her, if they/thought that her evidence was necessary to break a smugglers' ring. Ethyl Wong was protected by s. 132 (proviso) of the Indian Evidence Act even if she gave evidence incriminating herself. She was a competent witness although her evidence could only be received with the caution necessary in all accomplice evidence. The expression 'criminal proceeding' in the · exclusionary clause of s. 5 of the Indian Oaths Act cannot be used to widen the meaning of the word accused. The same expression is used in the proviso to S. 132 of the Indian Evidence Act and there it means a criminal trial and not investigation. The same meaning must be given to the exclusionary clause of s. 5 of the Indian Oaths Act to make it -conform to the provisions in pari materia to be found in Ss. 342, 342A of the Code and s. 132 of the Indian Evidence Act.

The expression is also not rendered superfluous because if given the meaning accepted by us it limits, the operation of the exclusionary clause to criminal prosecution as opposed to investigations and civil proceedings. It is to be noticed that although the English Criminal Evidence Act, 1898, which (omitting the immaterial words) provides that "Every person charged with an offence …… shall be a competent witness for the defence at every stage of the proceedings'' was not interpreted as conferring a right on the prisoner of giving evidenre on his own behalf before the grand jury or in other words, it received a limited meaning; see Queen v. CHANDRAN @ MANICHAN @ MANIYAN v. STATE 335 OF KERALA Rhodes (18.99) 1 QB 77;" · This case would bring about .the legal position that even if the prosecution did not prosecute PW-53 and used his evidence only as an accomplice, it was perfectly legal.

The evidence of such witness subject tO the usual caution was admissible 8 evidence. Jhe contention of Shri Radha Krishnnan that his evidence would be inadmissible because he was not granted pardon or he was not made accused would, thus, be of no consequence and is rejected. In this backdrop, after considering the whole material and the findings of the Trial Court and the C appellate Court, we have no hesitation to hold that the Trial Court and the appellate Court were rigllt in convicting A-7.

43. At this juncture itself we must also refer to the Trial Court's judgment which has painstakingly dealt with the huge evidence led on behalf of the prosecution against all the D accused. We appreciate the efforts and the interest shown by the Trial Court in carefully analyzing and appreciating the evidence of as many as 271 witnesses as also 1105 · documents and 291 material obje.cts. Apart from the evidence of investigation witness from the police department, several E injured witnessed were examined who were injured on account of drinking of the illicit liquor prepared and sold through agencies of A-7. The other batch of the witnesses are the attesting witnesses to the mahazars, the inventories and officers of the telephone department who were examined to F prove the telephone calls made from various telephones to the accused as also the accused persons using the mobile phones. Officers of the mobile companies were also examined.

PWs-197 to 203, 216.and 218 were doctors who conducted the autopsy of the 31 unfortunate men who died because of consumption of spurious liquor. Other doctors who treated the G patients and the doctors who issued the injury certificates were also examined. We must mention PWs-233 and 253 who were the expert from forensic science laboratory, Thiruvananthapuram. Original accused No.27 turned approver H and was examined as PW-173. Apart from these persons, S. Anil Kumar (PW-251), M. Madhu (PW-257), Pramod Kumar (PW-260) and PWs-263 to 278 were members of the special investigating team. As has already been stated, 1101 documents were proved including the mahazars, investigation papers like inquest reports, seizure mahazars, account books, building tax assessment registers, room rent registers, medical certificates, chemical analysis reports etc. We must appreciate the Herculean effort on the part of the investigating agency for collecting the evidence as also the efforts shown by the c Sessions Judge.

Amongst the material objects which came before the Court and were observed and commented upon by it include the pouch fiUing machine, vessels, synthetic cans, plastic cans, bottles etc. The Trial Court returned the finding that firstly it was established by the prosecution that the deaths injuries of the victims were caused because of consumption of spurious liquor with methyl alcohol. The Trial Court furfher recorded a finding that number of the accused persons sold the' same. The Sessions Judge has dealt with the deaths of all the 31 persons and on the basis of the inquest report as also the evidence of other witnesses came to the conclusion that all · these deaths were caused due to the drinking of illicit liquor mixed with methyl-alcohol. The medical ciartificates as also the post-mortem reports have been meticulously dealt with para- wise with the evidence of the witness proving such certificates as also the evidence of the doctors.

The Sessions Judge then went on to appreciate the evidence of the relatives of those persons who lost their lives. The prosecution examined about 33 witnesses on this question. The Sessions Judge went on to accept the evidence of all these witnesses regarding the reason of the death of their kith and kin. On the question of S.32, G Evidence Act the Trial court has relied upon the judgment of this Court in Rattan Singh v. State of Himachal Pradesh [1997 (4) SCC 161] as also Smt. Laxmi v. Om Prakash (AIR 2001 SC 2383]. The Sessions Judge also discussed the evidence of the few of those witnesses who had actually consumed the spurious liquor and suffered injuries because of that. All these CHANDRAN @ MANICHAN @ MANIYAN v. STATE · 337 OJ= KERALA. witnesses, number of which is substantial, deposed about the ill-effects felt after drin~ing from the shops where liquor provided. by A-7 ahd carried by the other accused persons like A-4, A- 8, A-25 and A-30, used to be sold.

On the basis of these witnesses and also on the basis of the doctors who conducted the post-mortem, the Trial Court had no difficulty to arrive at the conclusion that injuries suffered by persons including the accused as also the deaths were occasioned because of the drinking of the spurious and illicit liquor. The Sessions Judge ultimately gave a finding that it is only after drinking the illicit liquor that the concerned persons developed symptoms c characteristics of methanol poisoning.

44. The Sessions judge went on to discuss the evidence regarding the conspiracy of A-7 with the other accused persons .. For ascertaining the ro1e of A~7; the Sessions Judge then referred to the evidence of A; Mohan {PW-127), Deputy P Director of Income Tax (Investigation) as also the .sworn statements of A-7 to A-15 recorded on 14.10.1999 under Section 131 of the Income Tax Act. The Sessions Judge on the basis of all this voluminous evidence recorded the finding on the way the business of A-7 was being managed. His examination and the replies given to the various questions were also considered by the Sessions Judge wherein he admitted about liquor business and his dealing with the Income Tax Department as also the accounts, the huge profits that he made from this business. He also accepted that his two brothers Sunil Dutt and Murleedharan were his partners and that the accounts were written by Balachandran (A-15).

It was an admitted position that A-Twas in this business right from 1984 to 1991 which he continued for seven years and thereby started again in 1997-1998 and that A"7 conducted 16 shops.and his brothers conducted 1 O shops. After dealing with the evidence regarding the accounts as also the various statements made in the income tax enquiries, the Trial Court went on to appreciate the other material regarding the purchase of shops. The Sessions Judge has then given the complete finding [2011) 8 S.C.R. A regarding the business of A-7 and the other accused. These accounts very significantly include the monies paid to the police officers of various ranks as also the excise officers and including. All this was indicated in the accounts in the code language. The internal arrangements of the business with other B accused persons were also discussed and also the financial aspects. He has also discussed about he incriminating circumstances. Accused No. 7 had employed 33 salesmen and 18 toddy tapers who were members of the Union. According to the Sessions Judge these employees used to keep away c from the business and would only receive salary and allowances. All the toddy collected used to be kept in the godowns of A-7 which were raided by the police officers. The Session Judge then in paragraph 220 of his judgment has recorded a finding on the basis of the documents and the 0 accounts that A-7 had meticulously managed his toddy business which was of huge magnitude. The Sessions Judge also recorded a finding that A-7 made huge profits of over 9.5 crores within a span of four months. Ry doing the toddy business alone he could not have earned even 1 per cent of the bid amount of Rs.4 crores. The Sessions Judge then dealt with the E properties including the godowns which were raided and from where samples were collected. We have discussed regarding the properties in the earlier part of the judgment and so we need not repeat the same.

45. The Sessions Judge as also referred to the material objects found in some of these properties and has also referred to the fact that methanol was detected in the vehicles found parked in this plot. Accused No. 7 was also found to be frequent purchaser of polythene pouches from the evidence of K.S. G Harish Kumar (PW-264), C.G. Perera (PW-78) and Exhibit P- 83 of mahazar. Similar is the evidence of Peter Jacob (PW- 81) referred by the Sessions Judge. The Sessions Judge then referred to the incriminating articles seized from the very premises occupied by A-7 analysis of which gave indication H of nature of his business. These premises include Sreekrishna CHANDRAN @ MANICHAN @ MANIYAN , V..ilSIT"ATE 339 OF KERALA Tabuk Industries. After referring to various sections, the Trial Court traced the role of A-7 and other accused persons like A-4. His vehicles were found to be fitted with additional spring leaves and it was obvious that they were being used for carrying spurious liquor. The Sessions Judge also recorded Exhibit P- 855 and 859 which were search lists and Exhibit P-860 which is the mahazar prepared by him in this regard. Some of the items seized by this search list showed traces of methyl alcohol. Exhibit P-861 was relied upon for this. The Sessions Judge refuted the contention raised by the counsel of A-7 that considering the scientific properties of methyl alcohol it Was c impossible for them to find the trace in some of the vehicles or in the cans etc. as they would have evaporated. For this, the Sessions Judge relied on evidence of PW-233, Sindhu, Assistant Director of Forensic Science Laboratory who had collected the trace evidence. Her assertion that methylalcohol 0 could be traced even after ten days could not be shaken and was rightly accepted by the Sessions Judge. Her evidence that ·methyl alcohol was found in the three chambers fitted in the car bearing registration No. TMY 8748 cannot be assailed on any count. From all this voluminous evidence ultimately the Sessions · E Judge came to the conclusion that A-4, A-8, A-25, 30, and others were the close associates of accused No. 7 and were also· involved in the illicit manufacture and transport of arrack: The sessions Judge also held that some accused were involved in manufacture of the illicit arrack. We have carefully gone through the evidence referred to by the Sessions Judge and endorse his judgment.

46. We have deliberately referred to the judgment in details as one of the arguments by Shri Radhakrishnan against the High Court's judgment was that the High Court has dealt with G the whole matter in a perfunctory manner and that it has not considered the findings by the Trial Court nor has the High Court dealt with the main objections raised in their defence. We are satisfied with the judgment of the Trial Court insofar as this accused is concerned and the High Court has rightly confirmed H the same. We accordingly dismiss the appeal filed by A-7.

47. We shall now consider the appeal filed by accused No.8, Vinod Kumar. He has been convicted for offences under Sections 324, 326 and 328 of the Indian Penal Code as also for the offence under section 57 A (1) (ii) of the Abkari Act and has been sentenced to undergo life imprisonment along with the fine of Rs.50,000/-. Has also been separately convicted under Section 57A (1) (i) as also under Section 55 (a) (i) and Section 58 of the Abkari Act. His conviction insofar as offences under Sections 302 and 57A (1) (iii) are concerned, the High Court has set aside the same. There is a specific finding in respect of his conviction under Section 1208 IPC. The main evidence relied upon by the Courts below against this accused is PW-257, Mr. M. Madhu who conducted search being search mahajar Exhibit P .135. It is the contention of the prosecution D that a search was conducted of a house which was under construction at that time and it belonged to A-8. It is claimed that plastic cans M0-32 and M0-39 to 43 vehicles were found in the premises. Exhibit P-782 which is the chemical analysis · report suggests that traces of methyl alcohol and ethyl alcohol were detected in the cans as also in the samples taken from floor of the vehicles found parked in the said premises.· The prosecution has come out with a.case that since his house was being constructed, A-8 took a house in front of this house, namely, Roshini on rent. This house was also searched and Exhibit P-111 was executed whereby a mono block pump set and a telephone bill was recovered. Fake number plates being MOs 83 to 86 were seized from the premises under Exhibit P- 191. Some of these number plates related to some of the vehicles recovered from the premises i.e. the plot where the G house was being constructed. Exhibit P-135 is the search mahazar and report relied on in this regard.

48. It is to be understood that A-8 is the real brother of A-. 7 and it is the contention of the prosecution that A-8 was fully involved in the said business of illicit liquor which was headed CHANDRAN@ MANICHAN@ MANIYAN v. STATE 341 OF KERALA by his brother, A-7. The High Court in paragraph 81 of its A judgment has held that the evidence adduced by the prosecution sufficiently established his complicity in the crime. The High Court has also relied· on Section 58 A (5) of the Abkari Act which casts a burden on the accused to prove that he had not mixed or permitted to be mixed any noxious substance with the liquor. According to the High Court such burden has not been discharged. It was tried to be argued by Senior counsel Shri V. Giri that there is no veracity to the evidence relating to the presence of methyl alcohol in the floors of the cars or in the material objects found in the search on 30.10.2000.

Shri Giri c further strenuously asserted that even if Exhibit P-135 and the testimony of PW-257 and PW-253 are accepted still the accused could not have been booked for offence under section 57 A (1) (ii) of the Abkari Act. He suggested that there is no evidence to show that the accused had either mixed or 0 permitted to be mixed any noxious substance. The learned Senior counsel also argued that the accused must himself know that whatever is being mixed with the liquor is itself a noxious substance which has the potential of endangering the human life and it is only when he mixes it in spite of the said knowledge then alone the offence under section 57A(1) (ii) could be established. The learned counsel was at pains to argue that there is nothing to prove that A-8 had any such idea that methanol is a noxious substance. The learned counsel then pointed out that there is no direct witness to depose about the steps taken by this accused for mixing methyl alcohol with ethyl alcohol or as the case may be toddy for making Kalapani.

The learned counsel further argued that the evidence of PW-53 is of no consequence as it does not suggest that A-8 was aware of 'the mixing for noxious substance like methyl alcohol. He, therefore, urged that there is no evidence even remotely to G connect A-8 with the mixing of noxious substance. Relying on the language of Section 57 A(1) (ii) it is the argumentthat it is only where the accused is a licencee under the Abkari Act and if any noxious substance is detected from any sample taken . from any of the outlets operated by him then alone the burden of proving that he had neither mixed nor permitted to be mixed will be that of the accused. However, in the case like the present one there would have to be positive evidence to connect the accused with the actual act of mixing. According to the learned counsel, merely because methyl alcohol was detected from the traces of evidence collected from the cans and the cars which was seized on 30.10.2000 that by itself could not be sufficient to attract Section 58A(1) (ii).

It could ·only indicate the involvement of the accused in transportation of the noxious substance mixed with ethyl alcohol. Learned counsel further c contended that the evidence regarding the telephone calls having been made from the said number to the house or other places belonging to or under the control of A-7 which the prosecution sought to prove by producing a telephone bill in the name of Shyamala Kumari was also of no consequence. The learned counsel argued that being the younger brother of A-7 there is nothing wrong if he made calls. The learned counsel further argued that the prosecution has relied on the fact that the number plates were recovered from a shed situated near Pandaksala godown actually belonged to some of the vehicles which were found in the house under construction belonging to A-8. It has been held by the Courts below that the fact that loose unattached number plates were actually recovered from the godown and a shed under the control of A-7 would show that A-8 was an active participant in the business conducted by A- 7 and that he should, therefore, be treated as part of the conspiracy allegedly hatched by A-7.

However, the learned counsel pointed out that firstly, the disclosure statement is inadmissible and secondly, the said discovery was extremely unnatural and artificial. The counsel pointed out that even if the $aid recovery is to the accepted it would be of no consequence G insofar as the offence under Section 57A (1) (ii) is concerned. At the most, it would show that A-8 was a participant in the business and for that A-8 could be booked for the offence under Section 55. However, it will be totally insufficient for booking him for the offence under section 57 A (1) (ii). CHANDRAN @ MANICHAN @ MANIYAN v. STATE 343 OF KERALA. Lastly, the learned counsel argued that there is no clear A finding for the complicity under Section 1208, Indian Penal Code. According to the learned senior counsel the gist of crime though alleged has not· been proved at all and even if it is presumed that accused knew that methyl alcohol was being imported, it will be too much to presume that he knew about 8 the mixing of the same with alcohol.

The learned counsel argued that the agreement for the conspiracy, as the case may be, has not been proved at all and merely because there is a burden on the accused under Section 57A (5), that cannot be used for proving offence under section 1208, IPC. The counsel c then made extensive comments on the law laid down in P.N. Krishna Lal v. Govt. of Kera/a [1995 suppl.(2) SCC 187). His whole stress was on paragraph 39 as also paragraph 46. The learned counsel pointed out that a strictly literal interpretation of the rule was not possible because it would virtually dispense 0 with any burden on the prosecution to prove the offence. Leaned counsel argued that the initial burden of proving always would lie on the prosecution which should suggest the involvement of the accused in mixing of the noxious substance. It is only then that it will be the burden of the accused to prove otherwise.

49. We shall now consider all these contentions in the light of the findings by the Trial Court and the appellate Court. We have already considered the nature of burden of proof on the prosecution as also on the defence in the earlier part of the judgment while considering the case of A-7. The question of F said burden has been discussed thoroughly in Krishna Lat's case (cited supra). There can be no dispute that the prosecution has the initial burden to suggest that the accused person was involved in the business of illicit liquor and that he knew the nature thereof. It is only then that the burden would shift to the G accused to prove that he had no means to know about the nature of the business or the fact that the liquor was being mixed with noxious substance like methanol. Now here in the present case, the accused is the real brother of A-7 and there are number of other circumstances to suggest that he was actively H [2011) 8 S.C.R. engaged in the business.

The High Court as also the Trial Court thoroughly discussed and considered the evidence and all the circumstances therein. In fact in the light of these concurrent findings, we need not discuss the whole evidence. However, it is clear from the evidence of discovery regarding the fake number plates that accused No.8 was neck deep into the business of spurious liquor. He was an active member in carrying the said spurious liquor and the fact that a vehicle under his possession found from his premises had the trace of methanol is sufficient to hold that he had the necessary c knowledge that methanol played a major part in the business which was headed by his real brother A-7 and in which he was an active partner. The contentions raised by Shri Giri that he may at the most be booked for transporting the spurious liquor is also not correct because if that is established then his active participation in the business also comes to the forefront.

Thereby his knowledge that the liquor was being mixed with methanol has also to be presumed. There was no necessity for keeping the fake unattached number plates .in his premises and the whole objective is clear of shielding the cars by attaching fake number plates to them. In paragraph 80, the High Court thoroughly discussed about vehicle PY01 M 2464 which was sold by PW-68, S. Vasudevan and was found in the possession of this accused. The High Court has also discussed about the transaction of his house, namely, Roshini which was in front of the half built house where obnoxious liquor trade was going on. He had also taken a good care to un-authorizedly obtain the telephone number 620069 from Shyamala Kumari, PW-73. It has referred to the evidence of PW-260, Pramod Kumar who had proved the recovery mahazar Exhibit P-191. The evidence of PW-68, S. Vasudevan was also referred to by him. He also G urged that the house did not belong to A-8.

We have already referred to the circumstance that A~8 had taken a house right in front of the aforementioned half built house and it was at his instance that the real number plates of the car which had the traces of methanol were found. We, therefore, find no reason H to discard the evidence of this discovery. CHANDRAN@ MANICHAN@ MANIYAN v. STATE OF KERALA 50. As if this· was not $ufficient according to PW-49, S. Shiju, who was the driv~r of A-8, liquor would be brought from the house of A-7 in the maruti car to be carried to the places such as Adoor, Ezhukone and Pathanapuram. It is this witness who established the nexus of A-8 with the two cars PY01 M 2464 and PY01 N 1014, MOs 41 and 43, respectively. Therefore, it is obvious that this accused was engaged in the business of manufacture, storing, sale and supply of illicit liquor along with A-7 which resulted in liquor tragedy. It is obvious that this accused was well aware of the nature of the business as he was thoroughly into it.

Therefore, the offence under section c 57A (1) (i) and (ii) as also the other offences under Sections 324, 326 and 328 read with Section 34, IPC have been rightly held proved against him. We are not impressed with the argument of Shri Giri that the discovery was unnatural and was farcical since both the Courts have held the said discovery to ·have been proved. Again his frequent .calls to his brother would · cut both ways and.would also .show that·he was actively involved in the business. As we have already shown from our earlier discussion that it is not necessary that the accused had to mix or permit to be mixed the noxious substance himself. He could be booked on the same basis as A-7 has been booked by us on the same logic. Again we are not prepared to accept the argument of Shri Giri that A-8 had no idea that methanol is a noxious substance. If a huge business was going on and methanol was being imported along with ethyl alcohol in huge quantity and if the car which brought the methanol was in his possession and further if the methanol is established to be a noxious substance, it would be a travesty to hold that A-8 did not know that methanol was obnoxious substance.

It is also well established that this accused could be convicted with the aid of Section 1208, IPC and also independently of the offence under Section 57 A (1) {ii) as he was not only the part of the business but had actively taken part in it. That by itself is · sufficient to hold that he had the knowledge about the mixing of the ethyl alcohol with the noxious substance like methanol and in spite of it.continued. His offence would be covered fully A in the phraseology 'or permits to be mixed'. We accordingly, confirm his conviction.

51. Shri Giri suggested that the chemical analyzer report was not put to the accused and took us through the examination 8 of the accused. In fact vide the question numbers 51, 63, 131, 141,143, 219, 220, 221, 224, 263, 691, 692, 706 and 709 and, more particularly, question No.624 all circumstances regarding incriminating circumstances have been put to this witness. Therefore, this argument of Shri Giri has to be rejected.

52. Lastly, Shri Giri also argued about the sentence and contended that at the most this accused could be booked for the offence under section 55 (g) and (h). There can be no doubt that he can be booked for those offences, however, in our opinion, the Trial Court and the appellate Court have not D committed any illegality in booking him under section 57A (1) (ii) also. Considering the number of deaths caused on account of the business in which this accused was neck deep, we do not think that any leniency can be shown. We accordingly dismiss the appeal of A-8.

53. This takes us to the case of A-4, who is another brother of A-7 and A-8. In fact the part played by A-4, Manikantan@ Kochani is not less than the part played by A-8, if not more. His connection with the business and A-7 is deposed by A Raju (PW-40), an auto rickshaw driver who had seen A-4 coming out of the house of A-1 in a red maruti car. His business connections have been deposed to by M.M. Ibrahim (PW-65) and it is proved from the evidence of PW-37 that he also arranged for the finance of Rs. 30 lakhs at the instance of A-1. He was also identified by S. Dharmapalan (PW-36) as a person G going to the house of A-1 with spirit in car. It is very important to note here that appeal by A-1 has abated on account of her death. It was A-1, who was the retail distributor of liquor. Allegedly her shop was for sale of toddy but it has come in evidence that liquor used to be supplied from her house.

Few CHANDRAN@ MANICHAN@ MANIYAN v. STATE 347 OF KERALA injured witnesses have been examined who were the A customers of liquor saying that on the fateful day the liquor tested a little different. PW-53 in his evidence specifically involved this accused suggesting that the methanol was first brought in the plastic vessels and then mixed with spirit kept in the tank and thereafter it was supplied for sale. He specifically B stated that this was done under the leadership of A-4 along with few others. He has specifically deposed that on the fateful day, M024 car came to the godown ofA-7 between 10 to 11 O'clock in the morning and that was being driven by Anil Kumar A-16. He further deposed that the essence i.e. methanol was filled in c .10 plastic vessels and they were kept inside the. godown. At that time, probably ethyl alcohol had not come and it was told to them that spirit load would come.

He further deposed that the tanker of.ethyl alcohol came at about 11 O' clock in the night, the driver of which was Shakthi from Tamil Nadu. It was 0 then mixed by the workers of A-4 with the ethyl alcohol. He then suggested that the liquor was then dispatched in three vehicles to the dealers at Attukadavu·and Pulimuttukadavu. Even after the tragedy happened, he deposed about the operations to destroy the spurious liquor. Ip the cross examination at the instance of this accused, beyond putting an innocuous E suggestion that he was telling lies, there was nothing much. The accused was tried to be painted as the chief link of Kayamkulam lobby to which he specifically answered that it was Anil Kumar who used to do the same. This accused was also involved by V. Harikumar (PW-167) who also knew this accused along with four other accused persons who were the driver of A-4. According to this witness, they used to purchase flowers to put in their cars.

S. Vasudevan (PW-68) who is the vehicle broker also recognized A-4, A-7 and A-8 and deposed that he had effected sale of the car to A-8 and arranged two G cars for .the manager of A-7. However, the money for all this was provided by A-4. The High Court has also referred to the evidence of T. Shyjan (PW-173) an accomplice to show the involvement of A-4. Even Usha (PW-62) spoke about the adjacent building being rented out in the name of A-4. The H search list Exhibit P-112 which was proved and produced by PW-270, various articles were seized and samples collected showed the ethyl alcohol and methyl alcohol which fact got proved by Exhibit P-782. These objects were M0-26 four blue cans and M0-27, 12 white cans. He along with his brother raised loans from Chirayinkil Service Cooperative Society, obviously for running the business along with A-7. He stood as a guarantor for A-7. Exhibits P-74 (d) (e) (f) {g) (h) were proved for that purpose.

The High Court has discussed about his house properties from where number of cans were seized. It has also c come in the evidence that the samples collected from the floor of these buildings showed the presence of methanol. Thus, it is clear that this witness was thoroughly in the business like his brothers A-7 and A-8. It is, therefore, clear that this was nothing but a conspiracy to run a patently illegal business along with his two brothers and others. It was argued by Shri Dave that the case against this appellant stands on the same footing as A-5 and A-11 and, therefore, he dl)served to be given the same punishment. We do not agree~ A-5 and A-11 along with A-6 and A-10 are proved to have physically transported the mixed substance to various places. However, they are not the persons who took active part in the business as its proprietors as A-4 did. In fact A-4 was at the helm of the affairs unlike those accused who merely transported the liquor.

The case of A-4, therefore, is quite different. It was argued that he himself had not transported the noxious substance which was done by A- 15. That may not be so, but he was practically managing the whole show. It has rightly been held by the Trial Court and the appellate court that A-5 was a worker of A-4 and took active part in the transportation of methanol. We do not accept the argument of Shri Dave that his case was comparable to that G of A-5 and such a contention has rightly not been accepted by the trial and the appellate Court. His involvement in the bu_siness is so deep that it was clear that he was a conspirator and it was in pursuance of conspiracy that the whole liquor business which essentially involved the mixing of methanol with the ethyl alcohol was being conducted. Shri Dave tried to dub the CHANDRAN @ MANICHAN @ MANIYAN v. STATE 349 OF KERALA evidence of PW-53 as a general evidence which argument A does not impress us. We have already commented upon the evidence of PW-53.

54. Shri Dave then dubbed Section 57 A as a draconian piece of legislation. Relying on the language of the whole 8 section, Shri Dave contended like the other learned counsels that the act of mixing the noxious substance has to be proved for being punished under this section. We have already commented upon the real import of Section 57 A of the Abkari Act. Tlie language of Section 57 A (1) is wide enough as we C have already commented in the earlier part of the judgment and A-4 will fit in the broad language. Shri Dave argued that the section does not use the word 'knowledge' or 'knowingly'. He also argued that mens rea to be read in all the offences unless the legislature has expressly or by necessary implications 0 excluded mens rea as the ingredient of offence. Reading the language of Section 57 A (1) as it is, it is more than proved that all these accused persons entered into a conspiracy to do the illegal liquor business and in order to succeed in their business, took recourse to mixing methanol with ethyl alcohol and brought out a new type of spurious liquor.

In order to E increase the potency of the drink and in order to probably give taste, they mixed the methanol. Once ethyl alcohol is proved to be a noxious drug, if they are found to be mixing or permitting mixing methanol with ethyl alcohol then the offence would be complete whether they had the knowledge regarding the qualities of methanol or not. That is apart from the fact that in this case itself to say that the accused did not know about the properties of methanol would be wrong. If that had been so they would not have been running between Hosur and Kerala to bring methanol in the cars which had fake registration numbers G and secrete chambers. As many as 7 reported decisions Were relied upon by Shri Dave for the question· of mens rea. We have · . nothing against the principles laid down thereunder but we must point out that in none of the ·seven ca.~es relied upon by the learned counsel the case related to an offence like Section 57 A (1 ).

The whole discussion on mens rea, therefore, is of no consequence. The following cases were relied on: c (1) Lim Chin Aik v. Reginam [1963] 1 All ER 223 (2). .. State of Maharashtra v. Mayer Hans George, 1965 (1) SCR 123 (3) Sweet v. Parsley [1969] 1 All Er 347 (4) State of Gujarat v. Acharya D. Pandey & Ors. (1970) 3 sec 183 (5) Sanjay Dutt v. State Through CBI (1994) 5 SCC (6) Kalpnath Rai v. State (through CBI) (1997) 8 SCC (7) B (a minor) v. Director of Public Prosecutions [2000) 1 All 833

55. 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. Shri Dave also referred to the case of P.N. Krishna Lal (cited supra). The argument was that if Section 57 A (v) is to be worked out in its literal manner then it is the defence which would lead the evidence of disproving. The G argument is clearly incorrect. We have already explained the responsibility on the prosecution in the earlier part of the judgment. In our view, in this case the prosecution has discharged its primary burden. The accused persons, more particularly, these three brothers have not offered any evidence so as to discharge the burden put against them under section CHANDRAN @ MANICHAN @ MANIYAN v. STATE OF KERALA 57 A (1) (v).

In this case the prosecution has clearly proved that A there was a noxious substance which was likely to endanger the human life. Secondly, they have proved that substance was mixed, permitted to be mixed and was being regularly mixed with liquor. They have thirdly proved that the persons mixing had the knowledge that methanol was a dangerous substance B that aspect would be clear from the fact that after the tragedy A-7 went and punished his servants and remonstrated them for 'not properly' mixing methanol with ethyl alcohol. Lastly, it is proved that as a result of mixing of methanol with the liquor and as a result of consuming such liquor as many as 31 persons c lost their lives and number of others suffered grievous injuries. We reject the argument of Shri Dave that the initial ~urden was not proved by the prosecution which we confirm the finding of conviction and sentence as imposed against A-4. We accordingly dismiss the appeal filed by A-4.

56. This takes us to the SLP (Crl.) 842 of 2006 of A-25 represented by senior Counsel Shri Shekhar in which we have granted leave to appeal. The argument of learned senior counsel was almost on the same lines with that of Shri Dave and Shri Giri insofar as the contentions regarding the burden of proof and the interpretation of Section 57 A (1) were concerned. It is well prov.ad by the prosecution that this A•25 was a major link used to purchase liquor from A-4 and he was the one to used to distribute the same. Learned counsel argued that this accused had no control over this business and he was merely transporting the spurious liquor and, therefore, he should have been booked under section 57 A (1) (iii). A-25 was selling liquor in retail through A-32, A-35 etc. A- 25 and A-10 were the employees of A-4 who were supplying G the liquor to A-21. Thus, he was getting the readymade liquor. As per the evidence of P. Thulaseedharan (PW-131), because of the liquor sold to his father on 21.10.2000 at 11 pm that his father was admitted in the hospital.

Name of the father is Pachan. In fact, as per the evidence of PW-131, he wa.s told [2011) 8 S.C.R. by his father that he had consumed little from the liquor entrusted to him by A-24 for sale. Thereafter, he felt headache and abdominal pain. The prosecution suggests that later on he died. As per the evidence of P. Ramu {PW-163), his father used to drink the liquor supplied by A-25 and he had also seen on the fateful day, his father consuming alcohol supplied by A-25. Thus. his father who died was himself a further supplier of the drink, which was used to be supplied by A-25. The liquor sold on that day tasted differently, which was the evidence of M. Ponappan (PW-133). He had, however, purchased the liquor from A-32. c When he enquired about the reason, he was told that it was liquor of A-7 brought through A-25. Evidence of T. Chandrasekhara Babu (PW-146) is also to the same tune. PW- 173 is another witness who is an accomplice.

He claimed to have known A-25. He was used to !:>e given a canister whenever he beca.me indebted. He used to sell 35 litres of liquor in that canister. Thus, it is established that A-25 used to take the liquor manufactured by A-7 and the same used to be supplied to him by A-4 and the same was distributed by him further. Obviously, this witness used to sell the liquor supplied by A-25 at a higher price of Rs.20/- per litre and he purchased the liquor from A- 25 twice or thrice in a week. It was for the last time that he purchased the liquor from A-25 on 20.10.2000 as he told that he waited near Pallikkal temple near .milma booth and after 10 · or 15 minutes, A-5 and A-25 came there in a blue Maruti Car and five canisters of liquor were unloaded there. It was distributed amongst A-24, A-6, A-29 and A-28. It was A-25 who asked A-32 to destroy the balance of liquor after the tragedy. The prosecution alleged, as the High Court has noted, that he absconded and he was arrested from K.S.R.T.C.

Bus stand on 11.12.2000. The Trial Court thoroughly discussed his evidence. It was contended before the Trial Court that evidence of PW- 173 could not be accepted as he was given pardon only towards the fag end of the case. The Trial Court and the High Court have found nothing wrong with the grant of pardon under Sections 306 and 307 of the Cr.P.C. The Trial Court has correctly appreciated the legal position that evidence of PW-173 could CHANDRAN@ MANICHAN@ MANIYAN v. STATE 353 OF KERALA not be accepted unless it is corroborated by other witnesses. A A finding is recorded that the evidence of PW-173 was corroborated by PWs-131, 133 and 163 insofar as the role played by A-25 is concerned. Thus, the sale on the part of A- 25 and his active participation in_ the business run by A-4 and A-7 was clearly brought out. He was convicted for the offence B under Sections 57A(2)(i) and was heavily fined for Rs.50,000/ -, Rs.25,000/- and Rs.2 lakhs on different counts including Section 55(a)(i) as also under Section 58 of the Abkari Act.

He was, thus, in a position for distributors and it has come out in the evidence that the liquor sold by sub-distributors killed number c of persons. The sub-distributors were none, but A-37, A-35 and A-41. It was the chain of distribution of liquor mixed with methyl alcohol. It is obvious that he was in possession of the poisoned liquor and does not seem to have taken care that it was not mixed with methyl alcohol. It was urged by the learned counsel D appearing that there was no evidence on record to suggest that A-25 had anything to do with the mixing of the methylene with the liquor. It was suggested that he had no control over the operation and he was a mere distributor and sold the liquor as he received from A-4. There is no doubt that this accused was E acquitted of the offence under Section 1208, IPC by the Trial Court and there is no appeal against it. The conviction of this accused is for offence punishable under Section 57 A(2) and on that account, he has been awarded life imprisonment.

Shri V.Shekhar, learned senior counsel contended that since this witness was not a conspirator and had-nothing to do with the F business of A-7 and was merely a distributor, the sentence of life imprisonment is excessive. As against this, learned senior counsel appearing on behalf of the State contended that this accused cannot escape the conviction under Section 57A(2). The learned senior counsel urged that if this accused was selling G the liquor, then it was for him to take the reasonable precaution to see that the liquor that he sells is not mixed with toxic substance. There can be no dispute that this witness had no control over the business run by A-7 and, therefore, he was rightly acquitted for the offence under Section 1208, IPC i.e. H conspiracy. However, it cannot be said that his conviction under Section 57 A(2) is incorrect on that count. We also find from the evidence of P.S.

John (PW-252) that there was a search in the house of this accused on 23.10.2010 vide Exhibit P-803 and a bottle was seized which was mixed with ethyl and methyl. This was substantiated by Chemical Analysis Report (Exhibit P- 784). He was also in possession of pure methyl alcohol, which is substantiated by Exhibit P-417, a disclosure made by him to M.G. Manila! (PW-269) as per Exhibit P-1019. Even this was found to be methyl alcohol. Once this fact regarding the C possession of methyl alcohol is proved, A-25 cannot argue that the possession of methyl alcohol was only incidental. There is no reason for keeping methyl alcohol with him. After all, he was not going to use it as a deodorant or perfume. This may suggest that he had a hand in mixing the alcohol with methyl alcohol, but there is no evidence for that and he has not been D convicted for the offence under Section 57A(1). The words "omits to take reasonable precaution" would cast a duty on him to see that the liquor that he sells is not mixed with poisonous substance.

Again, under sub-Section (5) of Section 57A, he was bound to prove that he had taken reasonable precaution, as contemplated in sub-Section (2). There is no evidence to the contrary nor has the accused discharged his burden in any manner. In our opinion, therefore, his conviction for offence punishable under Section 57 A(2) is justified. However, we agree with Shri V. Shekhar, learned senior counsel, who suggests that he should not be punished with life imprisonment. We find that this accused is convicted for offence punishable under Section 55 as also under Section 58, the maximum punishment for which Section is 10 years and that he has already undergone more than 10 years of imprisonment. The G statement made by the learned senior counsel that the accused had undergone more than 10 years of imprisonment was not seriously controverted. In our view, therefore, this accused should have been dealt with not at par with A-7, A-4 and A-8 at leas~ insofar as the punishment is concerned.

We, therefore, H deem it fit while confirming his conviction for the other offences CHANDRAN @ MANICHAN @ MANIYAN v. STATE OF KERALA and the sentences therefor to bring down the sentence from life A imprisonment to. what is undergone' by him (relying on the. · statement made by the· learned senior _counsel that the accused has undergone more than 10 years of imprisonment}. Insofar as the punishment of fine is. concerned, we do not interfere and confirm the sentence of fines.

57. We accordingly dismiss his appeal with the modification in the sentence as indicated.

58. This takes us to the Criminal Appeal No. 1531 oi 2005 filed by A-30. His case more or the less is identical with Suresh C (A-25). As per the prosecution version, this accused had filled the liquor supplied by A-4 through A-5 and A-10 incovers and on the fateful night on 20.10.2000, he carried the same in Car bearing registration No. PT01M 8122 to the residence of A-39 and she, in turn, sold the same to the customers. It is ironical o that A-39 herself also consumed liquor and died, so also one Soman Pilai and several others had sustained injuries. The evidence of PW-153 is clear enough, who complained that the liquor was found to be stronger and when he asked what the matter was, it was pressed by A-39 that the liquor was supplied E' by A-30. In fact, as per the evidence of a. Gopi (PW-153}, he had himself found A-30 bringing the liquor. Similar is the evidence of N. Prasad (PW-154} who felt uneasy after drinking the liquor at 12 in the noon on 20.10.2000.

He was required to be hospitalized. Even he has deposed that A-39 used to sen the liquor which was supplied to her by A-30 and A-31. He has also seen the liquor being supplied. In fact, he also spoke about the happenings on 20.10.2000. G. Raghavan Pillai (PW-164), the father of A-39 had also consumed the liquor and he also suffered. He also established the connection of A-30. Thus, there is enough evidence to establish that on the fateful day, A- 30 accompanied by A-31 supplied three bundles of covers, each having 100 covers. He has made a disclosure statement that alcohol was poured in the closet of a latrine recently constructed on the eastern side of the Senior Orthodox Church. The liquid in this closet which was having smell of liquor was H collected and it was established that it contained methyl alcohol. M.O. 256 is the sample while Exhibit P1001 is the chemical analysis report. One Badaruddin (PW-172) also spoke about the role played by A-30 who purchased the new ca·r under hire purchase agreement.

This was none else but car bearing registration No. PT01 M 8122. He also discovered a sealing machine from the residence of one Sukumaran (PW-181). M.O. 97 was that sealing machine, which seizure was proved by S. Bhaskaran (PW-175). This accused offered himself as a defence witness and admitted therein that the car was owned c by him and since there was default in payment of the hire . purchase installments, the car was seized by the financer. It is found by the High Court that his house was near to Senior Orthodox Church near to rubber plantation. He claimed that he was made accused because of the political enmity. There can be no dispute that there is enough evidence to show that A-30 was involved in the procurement of liquor from A-4. He then packed it in the covers and supplied to A-39. The High Court has not 'found him guilty under Section 304 or Section 307, IPC. Instead, the High Court has booked him for offence under Section 57A(2)(ii), Section 55(a), (h) and (i) and Section 58 of the Abkari Act.

Ms. Malini, learned counsel very earnestly urged that his conviction should not be maintained under Section 57A(2)(ii) as he did not have knowledge and he was not concerned with the preparation of the spurious liquor. We reject the contention on the same reasoning that we have given for rejecting the similar contentions raised on behalf of A-25. The role played by both is almost the same. We also reject the · contention raised that he could have been booked only under Sections 55(a), (h) and (i) and also under Section 58. The learned counsel has also prayed for leniency. For the same G reasons that we have given in respect of A-25, we take the same view in respect of this accused also. The learned counsel made a statement that this accused was also behind the bars for more than 1 O years, which contention was not seriously disputed by Shri J.C. Gupta, learned counsel appearing on H behalf of the Government.

We, therefore, set aside his life CHANDRAN @ MANICHAN @ MANIYAN v. STATE 357 OF KERALA imprisonment and bring down the sentence to what has been undergone. We accordingly dismiss the appeal filed by A-30 with the modification in the sentence as indicated.

59. Before we part with this case, we must note some very disturbing facts which have been revealed from the voluminous evidence by the prosecution. Here was a person who was unabashedly running his empire of spurious liquor trade and for that purpose had purchased politicians including the public representatives, police officers and other officers belonging to the Excise Department. The trade was going unabated. Unfortunately, it is the elite of the society or the "haves" of the society who never purchase this kind of spurious liquor for the obvious reasons. It is only the poor section of the society which becomes the prey of such obnoxious trade and ultimately suffers. As many as 31 persons have lost their fives, about 5 or more persons have lost their eye-site forever and several others have suffered in their health on account of the injuries caused to them. ft is only by an accident that the mixing was not done properly on the fateful day in the sense that the liquor mixed did prove to be fatal or injurious.

But that does not mean when it was mixed on other day for months together that it was not injurious. The use of methanol was a dangerous proposition. ft only shows that the human avarice could create hell in God's own country Kerafa. We are not only perturbed by the enormousness of the tragedy but the enormousness of the liquor trade run by A-7 and that was under the so-called vigilant eyes of those who had duty to stop it. The avarice is not only on the part of the accused persons, but also on the part of those who benefit from this horrible business. Though 10 years have passed, the reverberations of this grin tragedy have not become silent. We hope and expect that the Kerafa Government takes up this issue and takes definite steps for overhauling the system. We are worried about the rotten system that allowed such trade not only to continue, but to thrive. ft will be, therefore, for the administrators and the Government to take positive steps, firstly, to overhaul the system by weeding out the A corrupts by punishing those who are responsible for the whole system looking sideways.

We do not know as to whether such an exercise is taken. up, but if it has not been taken up the government is directed to take such steps. We do not think that the things would come under control unless such exercise is B taken, so as to save the poor man from such ghastly disaster.

60. Again before parting, we appreciate the assistance that we have had from all the defence counsel as also from Shri A. Sharan and Shri J.C. Gupta, learned Senior Counsel, who appeared for the prosecution. We must make a special C reference to the assistance that the Court got from Shri Mohan Raj, Assistant to the Special Public Prosecutor before the trial Court, who, at our request, spared his substantial time and labour for assisting this Court. We dispose of all the appeals accordingly. B.B.B. Appeals disposed of.