Vs. The State of Kerala  INSC 56 (17 January 1995)
B.L. (J) Hansaria B.L. (J) Kuldip Singh (J) Hansaria, J.:
1995 AIR 1066 1995 SCC (2) 99 JT 1995 (1) 496 1995 SCALE (1)159
Hooch tragedies have been taking heavy toll of human lives throughout the
length and breadth of the country.
has been so for a sufficiently long period by now, and it could be well said
that practically every year the liquor barons, in some part or the other of
this vast country Bihar is a recent example earn easy money
by ruining many houses and making many person destitutes. Many ladies have
become widows and many children orphans.
Here is a case in which the festive day of Onam 1982 brought disaster to many
families inasmuch as the prosecu- tion case is that 70 persons died after
having consumed liquor from the shops and sub-shops which were catered by the
firm named "Bee Vee Liquors" and 24 lost eye sights permanently, not
to speak of many others who became prey of lesser injuries. The joyous day of Onam
(1st September, 1982) thus became a day of disaster to
hundreds of families.
magnitude of the calamity swang police into action who, after close of
investigation, charge-sheeted 10 persons for offences punishable under sections
120-B,302, 272 and 328 read with sections 107 and 109 of the Indian Penal Code,
as well as some sections of the Kerala Abkari Act. At one stage, the Sessions
Judge at Emakulam discharged the 4th accused and framed charges against others
excluding one un- der section 302. This was challenged before the Kerla High
Court who confirmed the discharge of the 4th accused but di- rected the Session
Judge to framed charge under section 302 also. In the trial which proceeded
thereafter the prosecution examined 324 witnesses and proved 433 documents.
close of the trial, the 501 Sessions Judge acquitted accused 5 to 8 and 10 of
all the charges. They were also acquitted of the offences under section 302 of
the Penal Code as well as under the Abkari Act, but were convicted under
sections 120-B and 328 as well as section 107, 109 and 272 read with section 34
of the Penal Code. Various sentences were awarded for those offences.
convicted accused filed appeal before the Kerala High Court and the State
challenged the acquittal of all the accused for the offence under section 302
and the acquittal of accused 5 to 8 and 10 for all the offences. The High Court
heard all the appeals together on record dismissed the appeals of accused 1 to
3 and 9. in so far as the State's appeal is concerned, the same was partly
allowed by convicting accused 1 to 3, 9 and 10 under section 326 read with
sections 120-B, 107 and 109 and each of them was sentenced to undergo rigorous
imprisonment for seven yews The 10th accused was further convicted under
section 120-B and 328 read with 107 and 109. For the offence under section 328,
rigorous imprisonment for six years and a fine of Rs. 10,000/-; and for the
offence under Section 272 rigorous imprisonment for six months and a fine of Rs.
1,000/- were awarded, with the rider that the substantive terms of imprisonment
would run concurrently.
Accused 1 to 3 and 10 have filed these appeals with the aid of Article 136.
These appeals were earlier heard by a bench of Kuldip Singh and late Yogeshwar Dayal,
JJ and after hearing them at great length the bench felt that the case of
enhancement exists; and so rules of enhancement were ordered on 5.1.1994.
Learned counsel for the appellants addressed us on the question of enhancement
as well. In sofar as accused 9 is concerned, he had filed SLP (CO) No. 1190/90
which was dismissed on August
28,1991. By an order
dated 10.11.94, he was however, noticed by us to show-cause as to why sentence
awarded to him by the High Court should not be enhanced, having noted that the
maximum sentence awarded to him was rigorous imprisonment for seven years and
all the sentences were ordered to run concurrently. Pursuant to the notice
issued to this accused, he filed his written submission and we heard Sr.
advocate Shri Jain also on the question of his acquittal as well, as mentioned
in our notice; so also on the question whether sentence awarding to him merits
it first be seen whether the conviction as awarded by the High Court is
sustainable. To decide this, what we shall have to primarily see is whether the
five accused before us had acted in concert in committing the offences for
which they have been held guilty by the High Court.
examining this aspect it may by stated as the High Court also had not convicted
any of the appellants under section 302 of the Penal Code and as there is no
appeal to this Court against the acquittal under section 302, we are not
addressing ourselves, as it is not open to do so, to the question whether the
appellants were guilty under section 302. We therefore purpose to confine our
discussion to the conviction as awarded by the High Court.
licence to vend liquor being in the name of the aforesaid firm (Bee Vee
Liquors), it is apposite to mention that in this firm, which was started on
133.1980, initially accused 2 and 10 were partners, in which partnership eight
persons includ- 502 ing accused 1 and 3 were inducted subsequently. In the
relevant year (1982-83 the liquor licence had been obtained by the firm in the
name of accused 1 and 2 along with wife of the first accused. In so far as
accused 9 is concerned, he is an outsider and a chemist who had, according to
the prosecution, entered into a conspiracy, inter alia, with the aforesaid
accused, which conspiracy ultimately culminated in the aforesaid tragedy. For
the sake of completeness, it may be pointed out that though accused 10 withdrew
from this partnership sometime before the tragic occurrence, there is a finding
based on materials on record that he continued his relationship with the firm.
liquor having been supplied by the aforesaid firm, the principle argument of
the learned counsel appearing for the appellants is that the aforesaid accused
cannot be held guilty of any criminal offence for the misdeed, even if there be
any, of the firm inasmuch as there can not be any vicarious liability in a case
of the present nature. Shri Nambiar appearing for the State has fairly stated
that he is not pressing, as he cannot, the principle of vicarious liability to
fasten the guilt on the appellants. According to the learned counsel there is
plethora of materials on record to show that the five accused named above had
acted in concert in adulterating the liquor, consumption of which was
responsible for the deaths and loss of eye sights, apart from causing other
injuries. Shri Nambiar's submission is that the aforesaid partners of the firm
were those who were in charge of the management and accused 9 had entered into
conspiracy either individually or collectively with them: and as such, all the
five accused before us are guilty of the offences for which they have been
convicted by the High Court. This result follows, according to Shri Nambiar,
either because of the conspiracy of the partners or because of the common
intention on the part of the partners. Ac- cording to the counsel appearing for
the appellants, however, the mere fact that the accused 1,2,3 and 10 were in
active management of the firm (which they dispute) would not be sufficient, in
the absence of any evidence relating to conspiracy, to hold them guilty of the
offences in question.
it first be seen whether from the evidence as led in the case conclusion
arrived at by the High Court that the four aforesaid were in active management
of the firm suffers from any infirmity.
This aspect of the case presents no problem in so far as accused 1,2 and 3 are
concerned inasmuch as even licence to vend liquor by the firm stands in the
name of accused 1 and 2; and as to accused 3 there is enough evidence to show
that he was taking active part in the management. This question is really
relevant quo accused 10. As regards him, the High Court has mentioned about the
following circum- stances to show that despite his withdrawal from the firm of
Bee Vee liquors before the occurrence, he continued to take active part in the
management:- (i) operation of bank account upto 31.9.82(Paras 105 and 110 of
continued user of the jeep belonging to this accused by the firm of Bee Vee
liquors (para 109);
with all labour problems and service conditions of the employee of the firm (para
(iv) joint management of the firm at hand and Vypeen Liquor, in which this
accused was admittedly taking leading part, treating them as sister concerns (para
continuous money transactions between Bee Vee Liquors and Cochin wines, another
firm of this accused (para 112);and (vi) over-draft applications made by this
accused along with accused 2 on behalf Bee Vee Liquor May, 1982 (Para 114)
The aforesaid circumstances do not leave any manner of doubt in our mind that
accused 10 was taking active part in the management. The submission of Shri Sanyal
that this accused was a financer only and was looking after financial matters
cannot be accepted inasmuch as he was even taking care of labour problems and
service conditions of the employee of the firm.
the aforesaid premises, we have no hesitation in agreeing with the conclusion
arrived at by High Court that all the four appellants were taking active part
in the management of the firm. Shri Sanyal contends that this by itself is not
sufficient to hold this accused guilty of offence in question in the absence of
any satisfactory proof relating to conspiracy, as observed by the High Court
itself in paragraph 122 of the judgment. The perusal of the judgment shows that
after taking this view, the High Court analysed the evidence (direct or
circumstantial) to find out whether there was conspiracy between the parties
and it ultimately concluded in paragraph 145 that there was a conspiracy.
coming to this conclusion, the High Court principally relied on the evidence of
PWs 38, 39,42, 278, and 281. Shri Sanyal has strenuously contended that
evidence of these witnesses do not support the conclusion arrived at by the
High Court. We shall advert to this submission later. Let it be first stated
that according to us no proof of conspiracy as such between the four appellants
was strictly necessary inasmuch as they being the partners had clear motive to
derive wrongful gain from the adulteration which was undertaken on behalf of
the firm to commit the offences. The High Court has dealt with this aspect in
paragraph 102. The venture undertaken has been described as 'huge profit
making" by the High Court and it has rightly said that without the
knowledge, consent and connivance of the person in the management of the firm
such a venture would not have materialized.
may give some idea about the magnitude of the illegal act which was undertaken.
The brain behind this sordid drama was accused 9. He was doing business at Thrippunithura
under the name of 'Atlas Chemicals' and was dealing in var- nish and paints. He
purchased 23 barrels of methyl alcohol from Rekha Chemicals at Bangalore under fictitious name
"Synthetic Poly Hydride Thinner". Prosecution case is that he entered
in conspiracy with other appellants on or about 18th August, 1982 for the supply of 23 barrels of methyl alcohol to be mixed
with arrack and water for distribution to the consumers. He gave formula as per
Exh. p-359. It would be of some interest to note the contents of this Exhibit
which reads as below:- 504 Item Sprt Water Arrack Total % 1 20 + 40 + 140 = 200
10% 2 25 + 50 + 125 = 200 12.5% 3 30 + 60 + 110 = 200 15% No.1 can usually be
used daily ) Taste and Kick will No.2 may be used only if necessary ) be
may be used only if essential - Its taste has to be 15% for any reason. tested
shall not exceed Sprt- 25 lit. ) In this proportion pour in a Water-50 lit. )
drum, mix and pack after one hour. arrack- 125/200 lit ) Taste, kick do will be
Though the aforesaid Exhibit speaks about "Sprt" because of which a
contention has been advanced on behalf of the appellant that what was
ultimately mixed with arrack was spirit (to be more particular, rectified
spirit), the same is belied by the several vouchers which were seized by the
Investigating Officer, PW.324, from the office of the firm. these vouchers
contain the name of 'SP'. What was indeed supplied was not spirit but methyl
alcohol as would appear from the report of the Chemical Examiner brought on
which were sent for examination reveled that some of the barrels contained
methyl alcohol ranging from 67.83% upto 96.4%. In the house of accused, 9,
three loaded barrels were found which contained methyl alcohol from 88.36% upto
95.5%. It is not disputed that methyl alcohol is virtually poison. The quantity
supplied by accused 9 was about 20,000 liters, the price of which per litre was
50 naya paise. As per be afore-noted formula, in total quantity of 200 liters
of liquor, spirit was to be 25 litres, water 50 litres and arrack 125 litres as
per item 2. (The combination would be different if the preparation was to be
prepared according to item 1 or 3) This shows the magnitude of the illegal gain
aimed at inasmuch as 50 naya paisa stuff was passed on as liquor which must
have been sold at a price many times more.
greed for huge money is thus writ large in the abominable planning.
Another aspect of the case makes the criminality apparent. The firm had lifted
only 3200 litres of arrack from 1.8.92 upto 2.9.82 as against the sanctioned
quantity of 5,000 litres, but during this period it distributed 19,492.05 litres
through various shops and sub-shops. The additional quantity of more than
16,000 litres constituted either of water or of methyl alcohol. If the firm was
only keen to supply more arrack during the festival season for which permission
was sought, it would have at least lifted the full quantity of arrack
sanctioned to it but it did not;
it went for adulteration, and that too with such a 505 poisonous material which
ultimately resulted in 70 consumers dying, 24 loosing eye sights permanently
and many others suffering minor injuries.
Nothing more than the above is required to hold that the liquor barons were out
to earn profit at the cost of human lives. the magnitude of the profit aimed at
fully satisfies us that there was meeting of mind in so far as the persons in
the management of the firm are concerned to undertake the highly illegal act.
As, however, the High Court has gone into the question of conspiracy and has
relied on evidence of aforesaid PWs to conclude that there was a conspiracy
between the aforesaid persons, let the contention of Shri Sanyal noted above be
dealt with now.
High Court having dealt with the evidence of these witnesses at some length
from paras 136 to 144, we do not propose to note what these witnesses had
stated. Instead, we would deal with the criticism advanced by Shri Sanyal.
main attack of Shri Sanyal is about omission of the name of accused 10 by these
witnesses when they were questioned during investigations Not that all the
witnesses had omitted to name this accused, because PW.39, who was an employee
of a shop for 12 years, had named this accused, so had PW.278.
regards those witnesses who had omitted to name, the High Court has given
cogent reason as to why despite emission found in their statements as recorded
by PW.324 (the Investigating Officer) their evidence should be accepted.
only this the High Court has dealt with the reasons given by the trial court
for disbelieving these witnesses and has ad equately met the reasons. We do not
propose to traverse this ground over again as we are fully satisfied about this
part of High Court's judgment.
As, however, Shri Sanyal has taken pains to highlight the omission by some of
the witnesses in naming accused 10 during by some of the witnesses in naming
accused 10 during investigation, we propose to say a few words regarding this
submission. A perusal of the judgment of the High Court leaves no manner of
doubt that the investigating agency had made all efforts to shield accused 10;
may be because of the political clout or any other reason. This would be
apparent from the fact that though this accused was being shown absconding by
the police, he was in constant touch with the police and was having meeting
with police who advised him not to surrender because if he did so he ran the
risk of his anticipatory bail being rejected. Not only this, the High court has
stated in paragraph 190 that the police was giving secret information to this
accused and ultimately they went in for a 'thrilling arrest' at the cost of
huge expenditure to the State, as after giving out that this accused is
absconding, his photos were published in newspaper offering reward, which drama
ultimately ended at Delhi. It would be a fitting finale that the last act of
the judicial exercise as regards of this accused also ends at Delhi.
is because of the aforesaid that the High Court did not feel inclined to place
much reliance on the omissions, because where the investigation is partisan and
wants to shield somebody, the statements of witnesses examined during
investigation involving the concerned person would be manipulated. The High
Court, therefore, in some cases even perused the police diary and was satisfied
506 that the allegation of the omission was not correct. May we point out that
section 172 (2) of the Code of Criminal Procedure permits any criminal court to
send for police diaries and to use them to aid it in any enquiry or trial.
cannot, there-fore, be allowed to be made about omis- sion of the name of this
accused in the statement of some of the aforesaid PWs as recorded by the
The aforesaid is all that is required to be said to deal with the contentions
advanced by Shri Sanyal on behalf of accused 10 when appeal was being heard in
Court. In the written submissions filed subsequently, what has been done is
primarily to reiterate the points urged in open court by citing some decisions
to support the contentions. The cases referred relate to legal propositions as to
when conviction can be founded on circumstantial evidence, when can vicarious
liability be fastened in a criminal matter, when can order of acquittal be set
aside by an appellate court and when can conspiracy be held as established. We
do not think it necessary to deal with the referred decisions, as the view we
have taken is based on facts before us and the conclusions arrived at by us do
not militate against any legal proposition propounded in the decisions. May we
state that the doctrine of vicarious liability was not pressed into service by Shri
Nambiar himself-, and so, we have placed no reliance on the same to uphold the
conviction of this appellant or, for that matter, any other appellant. As to
the High Court setting aside the order of acquittal of accused 10, the abovenoted
discussion shows that it had done so for good and cogent reasons; and what is
more, it did so after apprising itself of the reasons given by the trial court
in disbelieving the witnesses in question. and it duly met the flaws pointed
out. As regards circumstantial evidence, it is clear that those brought on
record have duly and sufficiently linked this accused with the offence in
question. The chain is complete to fasten him. As to when conspiracy can be
taken as established, it has been accepted in the decisions relied on by Shri Sanyal,
that there can hardly be direct evidence on this, for the simple reason that
conspiracies are not hatched in open; by their very nature they are secretly
planned; and so, lack of direct evidence relating to conspiracy by this accused
has no significance.
Insofar as other appellants are concerned, not much is required to be said by
us in view of the concurrent findings of the trial court and the High Court
about their involvement. As, however, Shri Lalit appearing for accused I made
efforts, and sincere efforts at that, to persuade us to disagree with the
finding relating to this accused being hand in glove with others, let us deal
with the submissions of Shri Lalit. He contends that there is nothing to show
about this accused being a conspirator inasmuch as in the meeting which had
been taken place on or about 18.8.1982 with accused 9 this accused was not
present. This is not material because conspiracy can be proved even by
circumstantial evidence; and it is really this type of evidence which is
normally available to prove conspiracy.
further submission of Shri Lalit is that the only work entrusted to this
accused relating to the partnership business was to look after matters with the
Government. The financial control was with accused 2 and 10 and all the
recoveries were made at the instance of accused 3, states Shri Lalit. These
facts do not militate against the conclusion arrived at 507 by the courts below
that this accused was thick and thin with others. The High Court has summed up
its views qua him in paragraph 185 of the judgment. Among the facts mentioned
is that it was he who had applied for permission for keeping arrack shops open
till night in the festival season from 3.8.82 to 16.8.82 and from 13.8.81 to
regards accused 2, Shri Nair refers us to the grounds taken in Criminal Appeal
563-64/90 filed by him which are from pages 127 to 132. We have gone through
these grounds and these are on the question as to when on the basis of
circumstantial evidence a person can be found guilty. These grounds also say
that there can be no vicarious liability in the case of the present nature.
has been said about the evidence of PWs 260 and 322, who had done chemical
examination. These have nothing to do with criminality or involvement of this
accused. Qua accused 3, Shri Anam has only urged that what had been purchased
by him was rectified sprit and not methyl alcohol.
least said the better about this submission, as it is wholly misconceived,
which is apparent from what we have noted above about recoveries made and their
composition as found on chemical analysis.
We, therefore, conclude by stating &at we find no infirmity in the
conclusion arrived at by the High Court regarding the active participation of
the four appellants in the despicable act undertaken by them.
What is required to be seen further is whether the conviction of these
appellants under sections 326, 328 and 272 is tenable or not. So far as section
272 is concerned, there is no dispute because adulteration apparently there
was. The learned counsel for the appellants have taken pains to convince us
that no offence under section 326 specially was committed. Though some
submissions had been advanced about non-applicability of Section 328 also, it
is apparent that if we would be satisfied about applicability of section 326,
328 would apply proprio vigore.
According to Shri Sanyal, mischief of section 326 would not be attracted for
two reasons. First, the appellants had not caused any hurt
"voluntarily". Secondly, the hurt caused, in any case, was not grievous"
sustain the first submission, Shri Sanyal refers us to the definition of
"voluntarily" as given in section 39 of the Penal Code which, inter alia,
says that a person is said to cause an effect voluntarily when he knew or had
reasons to believe to be likely to cause it. Learned counsel contends that the
accused persons had no knowledge that the effect of the consumption of the
adulterated liquor would be so injurious as it proved to be. This submission
cannot be accepted because the aforesaid knowledge can well be imputed for two
reasons. Under the Kerala Abkari Act no mixture at all with the liquor as
supplied to the firm was permissible the legal position is not disputed before
us. In view of this, the acceptance of the formula given by A-9 in mixing
"spirit" or water with arrack was itself an illegal act.
in the present case what was mixed was not "spirit" but, as already noted,
poisonous substance, as is methyl alcohol. The percentage of methyl found in
the liquor supplied by the firm being what was found to be, it has to be held
508 that the persons responsible for mixing had the knowledge that the
consumption of the liquor was likely to cause very serious adverse effect. The
contention that all the consumers were not adversely effected cannot water down
the mens rea required to bring home the guilt under section 326.
next submission of Shri Sanyal for non applicability of section 326 is that the
hurt caused was not grievous. To satisfy us in this regard, our attention is
invited to the definition of "grievous hurt" as given in section 320,
according to which the following kinds of hurt only are designated as grievous:-
Permanent privation of the sight of either eye.
Permanent privation of the hearing of either ear.
Privation of any member or joint.
Destruction or permanent impairing of the powers of nay member of joint.
Permanent disfiguration of the head or face.
Fracture of dislocation of a bone or tooth
Any burt which endangers hi: or which causes the sufferer to be during the
space of twently days in severe bodily pain, or unable to follow his ordinary
Sanyal urges that for a hurt to be "grievous" the same must be one
which endangers life. The background of making this submission is that the High
Court took the view that the-accused had no knowledge that the adulteration
caused by them would endanger life because of which the accused persons were
not convicted under section 302.
to us, the High Court was not correct in arriving at this finding; but as there
is no appeal by the State against acquittal of the appellants under section
302, we would, instead of reversing this finding of the High Court, proceed to
examine the submission of Shri Sanyal that the view brew in question did not
submission does not stand a moment's scrutiny inasmuch as the requirement of
endangering life mentioned in clause Eighthly cannot be read in other clauses.
To us, this is so apparent that we really did not expect a submission of this
nature from a senior counsel.
however, persisted and sought to press into service the observation made by a
Full Bench of the Bombay High Court in Government of Bombay v. Abdul Wahab,
1945 Bombay Law Reporter, 990 at page 1003. That observation is "The line
between culpable homicide not amounting to murder and grievous hurt is very
thin and subtle one. In the one case the injuries must be such as are likely to
other, the injuries must be such as endanger life......... This has to be read
in the context in which it was made; and the same was that the jury in that
case had returned a unanimous verdict of the accused not being guilty of
culpable homicide not amounting to murder, but only of grievous hurt. A
contention was advanced by the State before the High Court that as injuries in
question were such which endangered life, the guilt of culpable homicide not
amounting to murder was brought home. As, for this offence the injuries must be
such as are "likely to cause death", the Full Bench drew attention to
509 the difference in between the two. The same cannot, therefore, be read to
mean that for a hurt to be designated as "grievous" the same must be
such which endangers life.
present case, as many as 24 persons having lost their eye sights permanently,
the hurt in question has to be regarded as "grievous" because of what
has been stated in clause Secondly of section 320.
The two submissions advanced by Shri Sanyal for non- applicability of section
326 to the facts of the present case being not tenable, we uphold the conviction
of the five accused before us under section 326. This being the position,
nothing further is required to be stated regarding the guilt under section 328,
because it cannot be urged, as was faintly sought to be done, that the present
was not the case where the accused persons had "caused" liquor to be
taken by the affected persons. We have said so as it was the liquor supplied by
the firm to the shops and subshops which was consumed; and so, it has to be
held that the consumers were made to take the liquor supplied by the firm.
requirements of section 328 being present, the conviction under section 328 too
TO ISSUE THE RULE OF ENHANCEMENT
Having come to the conclusion that the High Court was right in convicting the
appellants under various sections of law noted above, it is required to be seen
whether the sentences as awarded are appropriate on the facts of the case. When
these appeals were being heard earlier, it was felt the sentence as awarded
needs to be enhanced. Being of this tentative view, by an order dated 5.1.1994
a suo motu notice was issued asking to appellants for show-cause as to why the
sentence should not be enhanced. Similar notice was issued to A-9 on 10. 11.94.
a point has been taken that this Court lacked competence to issue the notice,
the same needs to be examined first; and we propose to do so in some detail as
there does not appear to be any direct decision of this Court on this point.
Lalit has mainly addressed us on this aspect.
at one stage the teamed counsel took a stand that an appellate court seized
with appeal against conviction has no power to suo motu issue rule of
enhancement under the provi- sions of the new code of Criminal Procedure, as
distinguished from the provisions which found place under the old Code, this
point was not pursued, after the attention of the learned counsel was drawn to
the judgment rendered in Rengta Majhi v. State of Assam, 1988 (1) Gauhati Law
Report 48 1, in which one of us (Hansaria, J.) speaking for a Bench of the Gauhati
High Court held that even under the new code of Criminal Procedure the power
for issuing a suo motu rule of enhancement exits. That decision is based on
certain judgments of this court noted therein. Shri Lalit conceded that in view
of what has been stated in Rengta Majhi's case, the High Courts do have this
power even under the new Code of Criminal Procedure. Learned counsel, however,
urges that the same power would not be available to this court as this Court is
not exercising any power conferred or available under the Code, but under
Article 136, which, according to Shri Lalit, has conferred a limited
jurisdiction and is confined to the 510 examination of legality or otherwise of
the judgment under appeal.
Nambiar does not agree wit this submission.
to him the power conferred on this Court by article 136 is of wide amplitude
and is plenary. Learned counsel also submits that the power of an appellate
court is normal co-extensive with that of the lower court; and so, if the High
Court in a case of the present nature could have issued the rule of
enhancement, such a power would be available to this Court, when it hears
appeal from the judgment of the High Court. The final contention in this regard
is that, in any case, Article 142 of the Constitution would be available for
the purpose at hand, if this Court were to be of the view that to do complete
justice the sentence needs to be enhanced.
Shri Lalit has conceded, and rightly, that despite lack of appeal by the State
relating to the quantum of the sentence, a High Court is competent, while
hearing appeal against conviction, to issue rule of enhancement even under the
new Code, we would have thought that to deny such a power to this court, which
is higher in hierarchy, would be incompatible with the well accepted judicial
principle, as normally it should be within the competence of an appellate court
to do what the subordinate court could do. We may mention here that though Shri
Lalit took the right stand that non-filing of appeal by the State on the
question of sentence is not material, a contention has been advanced in the
written submission filed on 22.11.94 on behalf of A-10 that this Court will not
(meaning cannot) interfere with the question of sentence in the absence of
appeal by the State Government. (See page 21) In support of this submission
reference has been made to two decisions; 1981 (4) SCC 508 and 1976 (2) SCR
321. A perusal of these decision shows that they have not dealt with this
aspect at all.
aforesaid view of ours on the question of power of an appellate court receives
some support from what was stated by a Constitution Bench in Nagendra Nath Bony
v. Commissioner of Hills Division, AIR. 1958 SC 398. It was held there that the
powers which were available to appellate authorities under the Eastern Bengal and Assam Excise Act were
co-extensive with the powers of the primary authorities. 'In coming to this
conclusion, what was observed by another Constitution Bench in Ebrahim.
v. Custodian General of Evacuee Property, AIR 1952 SC 319, was also noted. In
that case this Court was concerned with the extent of the power of the tribunal
which had been constituted to hear appeals; and after noting the terms of constitution
of tribunal it was observed that like all courts of appeal exercising general
jurisdiction in civil cases, the tribunal which had been constituted as
appellate court in words of widest amplitude and the legislature had not
limited its jurisdiction by providing that such exercise will depend on the
existence of any particular state of facts.
was held in the aforesaid two Constitution Bench decisions would indicate that
where an appellate authority is conferred with power, without hedging the same
with any restriction, the same has to be regarded as one of widest amplitude
and the power of such an appellate authority would be co-extensive with that of
the lower authority. It is apparent that the appellate power available to this
Court un- 511 der Article 136 is not circumscribed by any limitation. We are,
therefore, inclined to think that being a court to whom appeals lie from the
judgments of the High court, It would have be same power which is available to
a High Court; and in exercise of such a power the rule of enhancement could
have been issued.
do not, however, propose to uphold the legality of the rule issued on the
aforesaid ground inasmuch as there can be really no dispute that the power
given by Article 136 is plenary in nature This has been the view of this Court
for about four decades by now inasmuch as such a vista was first opened by a
Constitution Bench in Durga Shanker Metha v Thakur Reghuraj Singh, 1955 (1) SCR
267, by stating that power given by Article 136 is worded in the widest terms
possible and it vests in the Supreme Court "it plenary jurisdiction"
and is in the nature of special or residuary power exercisable outside the
purview of the ordinary law in cases where the needs of justice demands
case was relied by a Division Bench in Arunachalam v P.S.R. Sadhanantham, 1979
(2) SCC 297, in which a doubt having been raised about the competence of a
private par,, as distinguished from the State, to invoke jurisdiction under
Article 136 against a judgment of acquittal by the High Court, it was observed
that there was no substance in the doubt inasmuch as the appellate power vested
under Article 136 is not to be confused with ordinary appellate power exercised
by appellate courts and same is plenary.
Nambiar has also brought to our notice the Constitution Bench decision in union
Carbide v Union of India, 1991 (4) SCC 584, in which it was observed in
paragraph 58 that Article 136 vests in this Court a plenary jurisdiction and
the power so conferred can be exercised in spite of the limitations under the
specific provisions for appeal contained in the constitution or other laws,
which power could be exercised in cases where the needs of justice demand
interference. The Constitution Bench further stated in paragraph 62 that the
plenitude of the powers of the apex Court is intended to be coextensive in each
case with the needs of justice of a given case and to meeting any exigency. The
submission of Shri Lalit that the power conferred by Article 136 is one of
limited jurisdiction is, therefore, untenable; it has no merit.
What is contained in Article 142 would in any case provide sufficient power to
this Court to pass an order like one at hand, if this Court were to be of the
view that the same is necessary for doing complete justice. The contention of Shri
Lalit, however, is that despite what is stated in Article 142 issuance of a suo
motu rule for enhancement would not be permissible because that would be violative
of Article 21 inasmuch as it would be unfair to the appellant who, having come
to this Court for seeking relief, would face peril in case the sentence comes
to be enhanced after upholding the conviction. The learned counsel urges that
Article 21 would not permit this as that would be a procedure not mandated by
law. In support of this contention, some assistance is sought to be derived
from what was stated by a 7Judge Bench in A.R. Antulay v R.S. Nayak, ADZ 1988
SC: 153 1, in which the direction given by a 5-Judge Bench in As first judgment
in A.R.Antulay v R.S. Nayak transferring the cases to High Court was held 512
to be violative to Article 21 as the larger Bench felt that because of the
order in question the appellant would be tried by a procedure not mandated by
law. What was stated by the 7-Judge Bench has no relevance, because if a High
Court can issue a rule of enhancement, as fairly conceded by Shri Lalit, the
power of issuing rule of enhancement cannot said to be one not mandated by law.
The further submission that power to enhance the sentence has to be
specifically conferred in case of the present nature has no legs to stand
inasmuch as the Code of Criminal Procedure has not conferred such a power on
High Court when it is seized with an appeal against conviction.
is apparent from Section 386 of the Code, which has been referred by Shri Lalit
in this context, as the same gets attracted when a High Court exercises its revisional
power under section 401, which power enables a High Court, as per Rengta Majhi,
to issue a rule of enhancement. In an appeal from conviction, the appellate
courts may do any of the following as per section 386 (b)- (i) reverse the
finding and sentence and acquit or discharge the accused, or order him to be
re-tried by a Court of competent jurisdiction sub-ordinate to such Appellate
Court or committed for trial, or (ii) alter the finding, maintaining the
sentence, or (iii) with or without altering the finding alter the nature of the
extent, or the nature and extent, of the sentence, but not so as to enhance the
some. (Emphasis ours) So, the submission that power to enhance sentence has to
be specifically conferred before such a rule can be issued cannot be accepted.
being the position, we entertain no doubt that this Court has power in an
appropriate case to issue suo motu rule of enhancement. A contention has,
however, been advanced by Shri Lalit that this Court had denied such a power to
it in some of the decisions. Learned counsel first refers in this context to Naresh
v State of UP., AIR 1981 SC 1385 and beings to our notice what was stated in
that case what had happened was that the High Court altered the conviction of
the appellant from under Section 302 I.P.C. to 304 (Part 1). The convicted
accused appealed to this Court, but there was no appeal by the State from
acquittal under Section 302. It was, therefore, observed in paragraph 2 nothing
could be done about the acquittal under Section 302, though this Court felt
greatly concerned about the grievous error committed by the High Court. This
judgment had thus not dealt with the power of enhancement of sentence.
The next decision to be pressed in service was rendered in Suraj Bhan v Om Prakash,
1976 (1) SCC 886. In that case the injured came to this Court who had
approached the High Court in revision for enhancement of the sentence. The High
Court had been approached by the accused also against his conviction and
sentence. The high Court reduced the sentence to the period already undergone
against which the State did not prefer any appeal. The injured, however, made
an application to the High Court for certificate which hav- ing been refused he
obtained special leave from this Court.
these facts it was observed in para 10 that in the absence of 513 an appeal
against the judgment of the High Court in the criminal appeal filed by the
accused that judgment had become final and the sentence could not be enhanced.
The passing observation in paragraph 11 that nothing could be done as regards
the sentence cannot be take to be a decision that power of enhancement is not
available to this court.
judgment in The State of mysore v CN. vijendra Rao, 1976 (2) SCR 321, which is
the last to be referred by Shri Lalit to support this contention has no
relevance, as it dealt with a different point altogether.
passing observation has to be borne in mind, what was recently stated in Naraynamma
(Kum) v State of Karnatka, 1994 (5) SCC 728, is more, to the point inasmuch as
it was stated in paragraph 6 that though the sentence of 3 years' rigorous
imprisonment for the crime of rape was inadequate, it did not wish to enhance
the same 'at this point of time.'
the basis of what has been stated above, we entertain no doubt that it was
within the competence of this Court to have issued the rules of enhancement.
Let it now be examined whether the sentences as awarded merit to be enhanced.
Let it now be seen whether the sentences on the appellants merit to be
enhanced. On this aspect, according to us. there cannot be two opinions, as the
appellants by their nefarious activity, prompted only by lust for money, sold
such a brew which contained even a poisonous substance.
see the enormity of consequence-, 70 deaths and 24 losing, their eye sights
permanently. What can be more shocking to the conscience? If greed for money
makes people so unconscionable, so unconcerned with human happiness and make
them behave like devils and to destroy human lives, they have to be dealt with
appropriately, sternly and with a steel heart not yielding to any plea of
softness on any ground, not relenting to discharge the onerous duty which falls
on a court in such cases. The need to rise to the occasion becomes great and
imperative when it is noted that liquor barons have long been playing with
destinies of many with impunity for one reason or the other, which has
encouraged them to indulge in such an activity without fear of law haunting
them. 'Ibis is abundantly clear from deaths due to consumption of spurious
liquor in different parts of the country. This has become almost a regular
feature and hooch tragedy has been taking heavy toll of human lives almost
every year in one pan or the other of this vast country. To mention about such
recent tragedies, was (Gujarat which saw this disaster in 1991 in a big way; it
fell on Cuttack in 1992 to see loss of more than 100 lives; and very recently
this tragic drama was enacted in Patna, where too about 100 persons became
So, retribution itself demands enhancement. Deterrence lends further support to
the demand. Let us all strive to check such atrocious acts, We would be indeed
failing in our duty if we were not to do so. And the least we can do in the
cases at hand is to see that maximum sentence visualised by our law makers is
awarded to all the appellants before us. There can hardly be more appropriate
occasion than one at hand to award the maximum sentence.
far as the A-9 is concerned, we have on record his written submission stat- 514
ing that he had been released from the Central Prison, Trivandram on 15th June,
1994 after having undergone the whole term of punishment. He has further stated
that he being an old man aged 72 years and absolutely deaf and being also
financially very weak, his punishment may not be enhanced. Being not
represented by any counsel, we thought it appropriate to provide him, legal
aid, to which effect we requested the Supreme Court Legal Aid Society to
appoint a counsel for him. Shri R.K. Jain, Sr. Advocate appeared accordingly.
We have heard him.
acquainted Shri Jain with what had been stated by us while issuing enhancement
notice and the same being that it would be open to this accused even to urge
that he is entitled to acquittal. Shri Jain submitted that on the face of
dismissal of the Special Leave Petition filed by this accused, followed by
dismissal of the review petition, he is not in a position to urge that the
conviction of this accused was not justified. The learned counsel however,
urged that keeping in view the (Ad age of this accused and his financial weak
position, because of which even before the trial court as well as in the High
Court he was given legal aid, we may not enhance the sentence. His deafness is
also brought to our notice.
have duty considered the aforesaid submissions of Shri Jain. As to the advance
age we would say though this is a mitigating circumstance, there exists an
aggravating circumstance as well the same being that it was this accused who
was the prime mover, as would be apparent from the facts noted above and as
pointed out by the High Court in para 157 of the judgment Thus the age factor
has been neutralized by the active roll played by this accused in the
regards financial weakness of the accused which required providing of legal aid
in the courts below, the same cannot be said to have in any way prejudiced him
accused inasmuch as his case was adequately taken care of by the other accused who
were well defended by eminent lawyers. Further, the accused has now got
assistance of senior counsel like Shri Jain who is known for his legal acumen.
In so far as deafness is concerned, that is not relevant for the purpose at
of the above, we have not felt inclined to treat this accused differently from
others. Indeed, treating him differently would result in a sort of
discrimination, which was one of the submissions advanced by Shri Sanyal
appearing for accused 10. This submission does have merit inasmuch as the roll
played by accused 9 was in no way less, really it was more, than other accused
qua whom we are satisfied that a case of enhancement has been made out.
the aforesaid reasons, we are of the view that the sentence of this accused
also has to be enhanced. We, therefore, enhance the sentence of all the
appellants and accused 9, named, Ramavarma Thirumulpad, for their offence under
section 326 to imprisonment for life. In view of this, we are not interfering
with sentences awarded to them for other offences
For the reasons aforesaid, all the appeals stand dismissed and rules of
enhancement stand disposed of by enhancing sentences as ordered above. The
appellants shall surrender the bail bonds and undergo the sentence as awarded
The trial court is directed to issue warrants to arrest all the appellants and
accused 9, Ramavarama Thirumulpad. The concerned District Magistrate and
Superintendent of Police are directed to execute the warrants.
Thirumulpad v State of Kerala Speical Leave Petition (Criminal) No. 1198 of
1990 HANSARIA, J.:
of the judgment delivered today in Criminal Appeal No. 422 of 1990 and
connected appeals, no separate order is required in this petition and it stands
disposed of in terms of the judgment in those appeals, a copy of which would be
transmitted to this petitioner by the Registry within a week from today.