Raveendran. K &
ANR. Vs. Excise Inspector, Vadakara & ANR. [2008] INSC 1796 (21 October
2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOs. 1263 OF 2001
Raveendran K & Anr, ....Appellants Versus Excise Inspector Vadakara &
Anr. ....Respondents With CRIMINAL APPEAL NOs. 1264-1265 OF 2001 With CRIMINAL
APPEAL NOs. 1266 OF 2001
Dr. ARIJIT PASAYAT,
J.
1.
Challenge
in these appeals is to the judgment of a learned Single Judge of the Kerala
High Court. Before the High Court Criminal Revision Petitions were filed
questioning correctness of the judgment passed by learned Sessions Judge
Kozhikode upholding the conviction of the revision petitioners for offence
punishable under Section 57A (iii) of the Abkari Act, 1967, described as (Act 1
of 1077) because the same was passed by the then Maharaja of Cochin on the 5th
day of August, 1902 corresponding to the 31st day of Karkadagom 1077 and was
extended to the whole of Kerala as per Act 10 of 1967. Each was convicted by
learned Assistant Sessions Judge, Vadakara and sentenced to rigorous
imprisonment for one year and to pay a fine of Rs.10,000/- each with default
stipulation. Lakshmanan N., the revisional petitioner No. 2 in two of the
revision petitions before the High Court and the petitioner in one of the
petitions was the licensee of arrack shops bearing Nos. 1 to 16 of Vadakara
Range. Preventive officer PW 1 attached to the Vadakara Excise Range along with
Excise Guards inspected the godowns and arrack shops of the licensee on
19.12.1988 and took samples for chemical examination. The samples were taken
from the stocks of 6520 litres of arrack kept in 65 barrels, in the presence of
the appellant No. 1. One of the samples collected from the godown was given to
the licensee on proper acknowledgement. The sample of chemical examination as
per the regional Chemical Examination Laboratory, Kozhikode, revealed the
presence of Methyle alcohol, a noxious substance, the consumption of which is
injurious to health. On the same day at another godown sample was collected
where appellant Mohanan in Criminal Appeal No. 1265 of 2001 was the manager.
During the pendency of the appeals before this Court, the licensee died. The
samples were taken in three bottles in each case. Samples labeled as A & B
were taken by the officer while bottle C was given to the salesman/manager as
the case may be. Samples labeled A were sent for chemical analysis and the
report is dated 25.1.1989. The presence of noxious substance was found. On
19.5.1989 the complaint was filed.
2.
The
stand of the accused persons was that the liquor in question was procured from
the distillery Chittore Co-operative Sugar Mill (in short the `Chiccopse'). It
was stated that earlier cases were instituted against Chiccopse and it was
found that the role of Chiccopse in the supply of illicit liquor cannot be
ruled out. Various documents were relied upon for this purpose. The courts
below did not accept the stand and found the accused persons guilty and
sentenced them as aforestated.
3.
In
support of the appeals learned counsel for the appellant submitted that it is
not the case of the prosecution that the licencee had got the liquor in
question from any source other than Chiccopse. It was submitted that the First
Information Report was also lodged on the basis of the Board of Revenue's
letter dated 13.1.1999 and the charge sheet has also been filed against
officials of Chiccopse.
4.
Learned
counsel for the State on the other hand submitted that burden of proof under
Section 57(1) or (2) of Section 57A is on the licensee to prove that he has not
mixed or permitted to be mixed or as the case may be omitted to take a
reasonable precaution to prevent the mixing of any substance referred to in the
provision with any liquor or intoxicated drug.
Similar is the
provision in relation to possession of liquor or intoxicating drugs with which
some other substance is mixed. Sections 57 and 57A of the Act read as follows:
"57. For
adulteration, etc., by licensed vendor or manufacturer:- Whoever being the
holder of a licence for the sale or manufacture of liquor or of any
intoxicating drug under this Act, (a) mixes or permits to be mixed with the
liquor or intoxicating drug, sold or manufactured by him, any drug, other than
a noxious drug] or any foreign ingredient likely to add to its actual or
apparent intoxicating quality or strength, or any article prohibited 3[other
than an article which the Government shall deem to be noxious] by any rule made
under section 29, clause (k), when such admixture shall not amount to the
offence of adulteration under Section 272 of the Indian Penal Code(Substituted
for the words and figures "Section 248 of the Cochin Penal Code" by
Section 32(a) of Act 10 of 1967; or (b) sells or keeps or exposes for sale as
foreign liquor, liquor which he knows or has reason to believe to be country
liquor;
or (c) marks the cork
of any bottle, case, package or other receptacle containing country liquor, or
uses any bottle, case, package or other receptacle containing country liquor
with any mark thereon on the cork thereof with the intention of causing it to
be believed that such bottle, case, package or other receptacle contains
foreign liquor when such act shall not amount to the offence of '[applying a
false trade mark under section 78 of the Trade and Merchandise Marks Act,
1958]; or (d) sells or keeps or exposes for sale any country liquor in a
bottle, case, package or other receptacle with any mark thereon or on the cork
thereof with the intention of causing it to be believed that such bottle, case,
package or other receptacle contains foreign liquor, when such act shall not
amount to the offence of selling goods to which a false trade mark or false
trade description is applied under Section 79 of the Trade and Merchandise
Marks Act, 1958(substituted for the words and figures "marked with a
counterfeit trade mark under Section 466 of the Cochin Penal Code by Section 32
(c ) of Act 10 of 1967) ;
shall on conviction
before a competent court, be punished for each such offence, with imprisonment
for a term which may extend to five years, or with fine which may extend to
fifty thousand rupees, or with both (The words "on conviction before a
Magistrate, be punished for each such offence, [with imprisonment for a term which
may extend to six months, or with fine which may extend to three thousand
rupees, or with both." substituted by Act 16 of 1997, w.e.f. 3-6-1997).
57A. For adulteration
of liquor or intoxicating drug with noxious substances, etc:- (1) Whoever mixes
or permits to be mixed any noxious substance or any substance which is likely
to endanger human life or to cause grievous hurt to human beings, with any
liquor or intoxicating drug shall, on conviction, be punishable (i) if, as a
result of such act, grievous hurt is caused to any person, with imprisonment
for a term which shall not be less than two years but which may extend to
imprisonment for life, and with fine which may extend to fifty thousand rupees;
(ii) if, as a result
of such act, death is caused to any person, with death or imprisonment for a
term which shall not be less than three years but which may extend to
imprisonment for life, and with fine which may extend to fifty thousand rupees;
(iii) in any other
case, with imprisonment for a term which shall not be less than one year, but
which may extend to ten years, and with fine which may extend to twenty-five
thousand rupees.
Explanation:- For the
purpose of this section and section 57B, the expression "grievous
hurt" shall have the same meaning as in section 320 of the Indian Penal
Code, 1860 (Central Act 45 of 1860).
(2) Whoever omits to
take reasonable precautions to prevent the mixing of any noxious substance or
any substance which islikely to endanger human life or to cause grievous hurt
to human beings, with any liquor or intoxicating drug shall, on conviction, be
punishable, (i) if as a result of such omission, grievous hurt is caused to any
person, with imprisonment for a term which shall not be less than two years but
which may extend to imprisonment for life, and with fine which may extend to
fifty thousand rupees;
(ii) if as a result
of such omission, death is caused to any person, with imprisonment for a term
which shall not be less than three years but which may extend to imprisonment
for life, and with fine which may extend to fifty thousand rupees;
(iii) in any other
case, with imprisonment for a term which shall not be less than one year but
which may extend to ten years, and with fine which may extend to twenty-five
thousand rupees.
(3) Whoever possesses
any liquor or intoxicating drug in which any substance referred to in
sub-section (1) is mixed, knowing that such substance is mixed with such liquor
or intoxicating drug shall, on conviction, be punishable with imprisonment for
a term which shall not be less than one year but which may extend to ten years,
and with fine which may extend to twenty- five thousand rupees.
(4) Notwithstanding
anything contained in the Code of Criminal Procedure, 1973 (Central Act 2 of
1974), no person accused or convicted of an offence under subsection (1) or
sub- section (3) shall, if in custody, be released on bail or on his own bond,
unless (a) the prosecution has been given an opportunity to oppose the
application such release, and (b) where the prosecution opposes the
application, the court is satisfied that there are reasonable grounds for
believing that he is not guilty of such offence.
7 (5)
Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of
1872)- (a) where a person is prosecuted for an offence under sub- section (1)
or s section (2), the burden of proving that he has not mixed or permitted to
mixed or, as the case may be, omitted to take reasonable precautions to prevent
the mixing of, any substance referred to in that sub-section with any liquor,
intoxicating drug shall be on him;
(b) where a person is
prosecuted for an offence under sub- section (3) for being in possession of any
liquor or intoxicating drug in which any substance refers to in sub- section
(1) is mixed, the burden of proving that he did not know that such substance
was mixed with such liquor or intoxicating drug shall be on him.
5. As rightly
submitted by learned counsel for the State, the burden of proof is on the
licensee as is evident from sub Section (5) of Section 57A.
Even if it is
accepted for the sake of argument that Chiccopse had any role to play, that
does not absolve the appellants from culpability under the Act.
It is to be noted
that while the appellants were selling the liquor in bottle they got it from
Chiccopse admittedly in barrels. Therefore the stand of the appellants that the
liquor was sold in the same form is not correct.
6. In view of the
factual position indicated above, the appeal so far as the appellant No. 1 in
each case is concerned, stands dismissed, while appeal stands abated so far as
the appellant No. 2 i.e. the licensee in each case because of his death. The
appellant No. 1 in each case who were released on bail pursuant to order dated
7.12.2001 shall surrender to custody forthwith to serve remainder of sentence.
..............................................J.
(Dr. ARIJIT PASAYAT)
..........................................J.
(P. SATHASIVAM)
..........................................J.
(AFTAB ALAM)
New
Delhi;
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