# < E.K. CHANDRASENAN ETC. ETC v. STATE OF KERALA

- **Citation:** [1995] 1 S.C.R. 277
- **Court:** Supreme Court of India
- **Decided:** 1995-01-17
- **Case number:** Criminal Appeal No. >-~ • 422 of 1990
- **Bench:** Kuldip Singh, B.L. Hansaria
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/e-k-chandrasenan-etc-etc-v-state-of-kerala-12710
- **Pages:** 27

## Headnote

Constitution of India-Arts. 136 and 142-Competency to issue suo
motu rule of enhancement of sentence--Plenary jurisdiction under Art.
136-Scope of power under Art. 142.
A
B
c
Indian Penal Code, 1860-Sections 326/ 120-B, 107, 109-Conspiracy
to supply spurious liquor--Standard of proof-Supply of liquor by a
jinn-Adulteration of liquor with poisonous material-Motive to derive
wrongful gain-Concumnt findings-Active participation of four accused-70
consumers died and 24 lost eye sights pennanently-Award of maximum
sentence of life imprisonment.
D
Section 326-Grievous hurt-Supply of adulterated liquor--24 persons
having lost their eye sights permanently-Hurt to be regarded as
grievous-Conviction u/s 326 upheld-Sentence of imprisonment for life.
E
Section 328-Supply of adulterated liquor by a jinn-Liquor consume~njuries to consumers-Conviction u/s 328 upheld.
Kerala Abkari Act;-:-Mixing spirit or water with am1,clc-lllegal.
10 persons were charge-sheeted for offences punishable u/ss 120-B, F
302, 272 and 328 r/ws 107 and 109 of the Indian Penal Code, as well as
some sections of the Kerala Abkari Act. The Sessions Judge acquitted
accused 5 to 8 and 10 of all the charges. Accused 1 to 3 and 9 were also
acquitted of the offences u/s 302 of the Penal Code as well as under the
Abkari Act, but were convicted u/ss 120-B and 328 as well as section 107,
109 and 272 r/ws 34 of the Penal Code. The convicted accused filed appeals G
and the State challenged the acquittal of all the accused for the offence u/s
302 and the acquittal of accused 5 to 8 and 10 for all the offences. The High
Court dismissed the appeals of accused 1 to 3 and 9. The State's appeal
was partly allowed by convicting accused 1 to 3, 9 and 10 u/s 326 r/ws 120-B,
107 and 109 and each of them was sentenced to undergo rigorous imprison- H
277
278
SUPREME COURT REPORTS
[1995] 1 S.C.R.
A _ment for seven years. The 10th accused was further convicted _u/ss 120-B
and 328 r/ws 107 and 109 as well as 272 r/ws 34, 107 and 109. For the offence
u/s 328, rigorous imprisonment for six years and a fine of Rs. ~0,000 and
for the offence u/s 272 rigorous imprisonment for six ~nths a~d a fine
of Rs. 1,000 were awarded.· Accused 1 to 3 and 10 had file~ these 'appeals
with the aid ·of Article 136 of the Constitution of India. This court after
B hearing appeals felt that the case of enhancement existed, and so, rules of
enhancement were ordered.
The presecution case was that 70 persons died after having consumed liquor from the shops and sub-shops which were catered by a firm
C . and 24 lost eye sights permanently and many other became prey of lesser
enjuries on the day of Onam; that in this firm initially accused 2 and 10
were partners, in which eight persons including accused 1 and 3 were
inducted subsequently; that the liquor licence had been obtained by the
firm in the name of accused 1 and 2 alongwith wife of the first accused;
D accused 9, a chemist being an outsider entered into a conspiracy with the
other accused which ultimately culminated in this tragedy; that though
accused 10 withdrew from this partnership sometime befm.;e this occur·
rence, he continued his relations with the firm; that accused\9 dealing in
varnish and paints purchased 23 barrels of methyl alcohol under fictitious
name and entered into conspiracy with other appellants for the supply of
E 23 barrels of methyl alcohol to be mixed with arrack and water for
distribution to the consumers.
The appellants alleged that the liquor having been supplied by the
firm, the accused could not be held guilty of any criminal offence for the
F misdeed, even if there be any, of the firm inasmuch as there could not be
any vicarous liability in a case of the present nature; that the mere fact
that the accusd 1, 2, 3and10 were in active management of the firm (which
they disputed) would not be sufficient, in the absence of any evidence
relating to conspiracy, to hold them guilty of the offences in question; that
G evidence of PWs 38, 39, 4

## Text

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I
---<
E.K. CHANDRASENAN ETC. ETC.
v.
STATE OF KERALA
JANUARY 17, 1995
[KULDIP SINGH AND B.L. HANSARIA, JJ.]
Constitution of India-Arts. 136 and 142-Competency to issue suo
motu rule of enhancement of sentence--Plenary jurisdiction under Art.
136-Scope of power under Art. 142.
A
B
c
Indian Penal Code, 1860-Sections 326/ 120-B, 107, 109-Conspiracy
to supply spurious liquor--Standard of proof-Supply of liquor by a
jinn-Adulteration of liquor with poisonous material-Motive to derive
wrongful gain-Concumnt findings-Active participation of four accused-70
consumers died and 24 lost eye sights pennanently-Award of maximum
sentence of life imprisonment.
D
Section 326-Grievous hurt-Supply of adulterated liquor--24 persons
having lost their eye sights permanently-Hurt to be regarded as
grievous-Conviction u/s 326 upheld-Sentence of imprisonment for life.
E
Section 328-Supply of adulterated liquor by a jinn-Liquor consume~njuries to consumers-Conviction u/s 328 upheld.
Kerala Abkari Act;-:-Mixing spirit or water with am1,clc-lllegal.
10 persons were charge-sheeted for offences punishable u/ss 120-B, F
302, 272 and 328 r/ws 107 and 109 of the Indian Penal Code, as well as
some sections of the Kerala Abkari Act. The Sessions Judge acquitted
accused 5 to 8 and 10 of all the charges. Accused 1 to 3 and 9 were also
acquitted of the offences u/s 302 of the Penal Code as well as under the
Abkari Act, but were convicted u/ss 120-B and 328 as well as section 107,
109 and 272 r/ws 34 of the Penal Code. The convicted accused filed appeals G
and the State challenged the acquittal of all the accused for the offence u/s
302 and the acquittal of accused 5 to 8 and 10 for all the offences. The High
Court dismissed the appeals of accused 1 to 3 and 9. The State's appeal
was partly allowed by convicting accused 1 to 3, 9 and 10 u/s 326 r/ws 120-B,
107 and 109 and each of them was sentenced to undergo rigorous imprison- H
277
278
SUPREME COURT REPORTS
[1995] 1 S.C.R.
A _ment for seven years. The 10th accused was further convicted _u/ss 120-B
and 328 r/ws 107 and 109 as well as 272 r/ws 34, 107 and 109. For the offence
u/s 328, rigorous imprisonment for six years and a fine of Rs. ~0,000 and
for the offence u/s 272 rigorous imprisonment for six ~nths a~d a fine
of Rs. 1,000 were awarded.· Accused 1 to 3 and 10 had file~ these 'appeals
with the aid ·of Article 136 of the Constitution of India. This court after
B hearing appeals felt that the case of enhancement existed, and so, rules of
enhancement were ordered.
The presecution case was that 70 persons died after having consumed liquor from the shops and sub-shops which were catered by a firm
C . and 24 lost eye sights permanently and many other became prey of lesser
enjuries on the day of Onam; that in this firm initially accused 2 and 10
were partners, in which eight persons including accused 1 and 3 were
inducted subsequently; that the liquor licence had been obtained by the
firm in the name of accused 1 and 2 alongwith wife of the first accused;
D accused 9, a chemist being an outsider entered into a conspiracy with the
other accused which ultimately culminated in this tragedy; that though
accused 10 withdrew from this partnership sometime befm.;e this occur·
rence, he continued his relations with the firm; that accused\9 dealing in
varnish and paints purchased 23 barrels of methyl alcohol under fictitious
name and entered into conspiracy with other appellants for the supply of
E 23 barrels of methyl alcohol to be mixed with arrack and water for
distribution to the consumers.
The appellants alleged that the liquor having been supplied by the
firm, the accused could not be held guilty of any criminal offence for the
F misdeed, even if there be any, of the firm inasmuch as there could not be
any vicarous liability in a case of the present nature; that the mere fact
that the accusd 1, 2, 3and10 were in active management of the firm (which
they disputed) would not be sufficient, in the absence of any evidence
relating to conspiracy, to hold them guilty of the offences in question; that
G evidence of PWs 38, 39, 42, /278 and 281, on which High Court principally
relied did not support the· conclusion arrived at by the High Court and
that these witnesses omitted to name accused-10 when they were ques·
tioned during investigation; that there was nothing to show about afCUsed
1 being a conspirator and that the only work entrusted to this accused
relating to the partnership business was to look after matters with the
H Government as the financial control was with accused 2 and 10 and all the
. )
~-
E.K CHANDRASENAN v. STATE
279
recoveries were made at the instance of accused 3; that no offence u/s 326 A
IPC was com.mitted as the appellant had l_lot caused any hurt 'volunt~ly"
as the accused had no knowledge that the effect ~the consumptio~ oNhe
adulterated liquor would be so injuriou,!,as it proved to be a~a all the
consumers were not adversely affected ,a,μd secondly the hurt caused was
nt>t grievous as for a hurt to be 'grievous' the same must be one which
endangers life; that while hearing conViction High Courts do have this
power to suo motu issue rule of enhancement under'7-the provisions of the
new Code of Criminal Procedure but the same power would not be availB
able to this Courfas this Court is not exercising any power conferred or
available under the Code, but under Article 136 which has conferred a
limited jurisdiction and is confined to the examinatioq of legality or C
otherwise of the judgment under appeal and 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 D
upholding the conviction and that would be a procedure not mandated by
law keeping in view the old age of accused 9 and· his financially weak
position, this Court might not enhance the sentence.
The respondent stated that there was plethora of materials on record
to show that the five accused had acted in concert in adulterating the
liquor, consumption of which was responsible for the death and loss of eye
sights, apart from causing injuries; that the 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 al~. the
five accused were guilty of the offences for which they had been convicted
by the High Court; that the power· conferred on th~s Court by Article 136
is of wide amplitude and is plenary and that tilt
1power of an appellate
court is normally co-extensive .with that of the low~r court and so, if the
High Court could have issued the rule of enha~cemdtt, such a power would
E
F
be available to this Court, when it hears appeal from the judgment of the G
High Court, and that 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.
Dismissing these appeals while enhancing the sentence, this Court
H
y
280
SUPREME COURT REPORTS
(1995) 1 S.<C.R.
A
HELD : 1. This Court has power in an appropriate case to issue suo
motu rule of enhancement. Article l36 of the Constitution· vests in this.
...
Court. a plenary jurisdiction and the power so conferred can be exercised
in cases where the needs of justice demand interference. What is contained .
in Article 142 would in any case provide sufficient power to this Court to
B
pass an order of enhancement if this Court were to be of the view that the
same is necessary for doing complete justice. [298-D-E, 299-B]
2.1. Where an appellate- authority is conferred with power, without
...
t
hedging the same with any r-estriction, the same had to be regarded as one
of widest amplitude and the power of such an appellate authority would
..
c be co-extensive with that of the lower authority. It is apparent that the
appellate power available to this Court under Articlet36 is not circumscribed by any limitation. Being a court to whom appeals lie from the
judgments of the High Court, it would have the same power which is
available to a High Court, and in exercise ·of such a power the rule of
D
enhancement could have been issued. [298-B-C]
Nagendra Nath Bora v. Commissioner of Hills Division, AIR (1958)
~
SC 398; Ebrahim Aboobaker v. Custodian General of Evacuee Property, AIR
(1952) SC 319; Durga Shankar Mehta v. Thakur Raghuraj Singh, [1955] 1
SCR 267; Arunachalam v. P.S.R. Sadhanantham, [1979] 2 SCC 297 and
E Union Carbide v. Union of India, [1991) 4 SCC 584, relied on.
Rengta Majhi v. State of Assam, [1988) 1 Gauhati Law Reports 481,
approved.
Naresh v. State of U.P., AIR (1981) SC 1385;. Sura{ Bhan v. Om
F Prakash, [1976) 1 SCC 886 and State of Mysore v. C.N. Vijendra Rao, [1976]
2 SCR 321, distinguished.
..._
Narayanamma (Kum.) v .. State of K.amataka,
[1~94] 5 SCC 728,
referred to.
J..-
G
2.2. In the instant case the liquor having been supplied by the firm,
:--
the licence to vend liquor by the firm being in the name of accused 1 and
-'! ~"-.
2, there being enough evidence to show that accused 3 and 10 were taking
active part in the management, it was established that all the four appellants were taking active part in the management of the firm. The venture
H undertaken had been described as 'huge profit making' by the High Court
E.K. CHANDRASENAN v. STATE
281
and ~thout the knowledge, consent and connivance of the persons _in the A
management of the firm such a venture would not have materialised. 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 brain behind this sordid drama was
accused 9. He was doing business and was dealing in varnish and paints.
He purchased 23 barrels of methyl alcohol. He gave the formula. In total
quantity of 200 litres of liquor, spirit was to be 2S litres, water SO litres
B
and arrack 12S litres. The quantity supplied by accused 9 was about 20,000
litres, the price of which per litre W!lS SO naya paisa. This showed the
magnitude of illegal gain aimed at inasmuch as SO naya paisa stuff was C
passed on as liquor which must have been solh at a price many times more.
Methyl alcohol is virtually poison. The greed for huge money was thus writ
large in the abominable planning. The firm had lifted only 3200 litres of
arrack as against the sanctioned quantity of SOOO litres, but during this
period it distributed 19,492.0S litres through various shops and sub-shops. D
The additiool\l quantity of more than 16t0fl0 litres i:Onstituted either of
water or methyle alcoho:. 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;
instead, it went for adulteration, and that too with such a poisonous
material which ultimately resulted in 70 consumers dying, 24 losing eye E
sights permanently and many others suffering minor injuries.
(287-C, 288-E-D, G, 289-F-G-H, 290-A-B]
3.1. The appellants by their nefarious activity, prompted only by lust
for money, sold such a brew which contained even a poisonous substance. F
If greed for money makes people so unconscionable, so unconcerned with
human happiness and make then 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 G
liquor barons have long been playing with destinies of many with impugnity for one reason or the other, which has encouraged them to indulge in
such. an activity without fear of law haunting them. This is abundantly
clear from deaths due to consumption of spurious liquor in different parts
of the country. [301-E-G]
H /
)-·
282
SUPREME COURT REPORTS
(1995) 1 S.C.R.
•
A
3.2. So retribution it~elf demands enha~cement. Deterrence lends
further support to the demand. Every one should strive to check such
atrocious acts. And the least this Court can do in the cases at hand is to
-4
see that tlie maximum sentence visualised by our law makers is awarded
to all the appellants. There can hardly be more appropriate occasion than
B
the one at hand to award the maximum sentence. [302-A-B]
4. So far as A-9 is concerned, as to the advance age this was 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 on record. Thus the age fador has been
~··
c neutralised by the active roll played by this accused in the conspiracy. As
regard 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 inasmuch as his case was adequately taken care of by the
other accused who were well defended by eminent lawyers. Further, the
D
accused has now got assistance of senior counsel who is known for his legal
acumen. In so far as deafness is concerned, that is not relevant for the
purpose at hand. Treating him differently from others would result in a
~
sort of discrimination as the role played by accused 9 was in no W'.BY less,
really it was more, than other accused qua whom a case of enhancement
had been made out. Sentence of all the appellants and accused 9 for their ·
E offences u/s 326 IPC enhanced to imprisonment for life.
[302·C~G-H, 303-C·D]
S. As to the High Court setting aside the order of acquittal of accused
10, it had done so for good and cogent reasons and it did so after apprising
itself of the reasons given by the trial court in disbelieving the witnesses
F in question, and it duly met the flaws. Circumstantial evidence brought on
..
. record had duly and sufficiently linked this accused with the offence in
. question. The chain was complete to fasten him. As to when conspiracy can
be taken as established, it is accepted th~t there can hardly be direct
evidence on this, for the simple reason that conspiracies are not hatched
G
in open; by their very nature they are secretly planned, and so, lack of
dire~ evidence relating to conspiracy by this accused has no significance.
A perusal of the judgment of the High Court revealed that the investigadng
~ency had made all efforts to shield accused 10, might be because of the
"I~.\._
· political clout or any other reason and therefore, the High Court did not
feel inclined to place much reliance on the omission by some of the
H witnesses in naming accused 10 during investigation, because where the
-
E.K. CHANDRASENAN v. STATE
283
investigation is partisan and wants to shield somebody, the statements of A
the witnesses examined during investigation involving the concerned per·
son would be manipulated. [292-B-C, 291-A-D]
6. In view of the concurrent findings of the trial court and the High
Court, there was 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. [293-C]
~
7. Under the Kerala Abkari Act no mixture at all with the liquor as
B
supplied to the firm was permissible. In view of this the acceptance of the
formula given by A-9 in mixing 'spirit' or water with arrack was itself an C
illegal act. Secondly, in the present case what was mixed was not 'spirit'
but 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 had
to be held that the persons responsible for mixing had the knowledge that
consumption of the liquor was likely to cause any serious adverse effects.
The contention that all the consumers were not adversely effected cannot . D
water down the mens rea required to bring home the guilt u/s 326 IPC. It
cannot also be held that for a hurt to be designated as 'grievous' the same
must be such which endangers life as the requirement of endangering life
mentioned in clause Eightly cannot be read in other clauses. In the present
case, as many as 24 persons having lost their eye sights permanently, the E
hurt in question had to be regarded as 'grievous' because of what has been
stated in clause secondly of Section 320 IPC. Conviction of the five accused
u/s 326 is upheld. [293-H, 294-A-B, 295-F]
Govt. of Bombay v. Abdul Wahab, 1945 Bombay Law Reporter 990,
distinguished.
F
8. It was the liquor supplied by the firm to the shops and sub-shops
which was consumed and so, it had to be held that the consumers were
made to take the liquor supplied by the firm and therefore, the conviction
u/s 328 IPC was rightful. [295-H]
G
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
>-~ •
422 of 1990 etc. etc.
From the Judgment and Order dated 7.3.90 of the Kerala High Court
~ruA~~~~
H
284
SUPREME COURT REPORTS
[1995) 1 S.C.R.
A
G. R_amaswamy, U.R. Lalit, S.B. Sanyal, A.S. Nambiar, P.K. Pillai,.
Dilip Pillai, E.M.S. Anam, M.A. Firoz, K.M.K. Nair, Ms. Malini Poduval,
C.N. Sree Kumar and M.T. George for the appearing parties.
The Judgment of the Court was delivered by
B
HANSARIA, J. Hooch tragedies have been taking heavy toll of
human lives throughout the length and breadth of the country. This 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
C houses and making many persons destitutes. Many ladies have become
widows and many childre~ orphans.
·
2. Here is a case in which the festive day of Onam 1982 brought .
disaster to many families inasmuch a& the prosecution case is that 70
persons died after having consumed liquor from the shops and sub-shops
D 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. The magnitude of the calamity swang ·
police into action who, after close of investigation, charge-sheeted 10
E persons for offences punishable under sections 120-B, 302, 272 and 328
r_ead 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
Ernakulam discharged the 4th accused and framed chargi:>'> against others
excluding one under section 302. This was challenged before the Kerala
High Court who confirmed the discharge of the 4th accused but directed
F the Sessions Judge to frame charge under section 302 also. In the trial
which proceeded thereafter the prosecution examined 324 witnesses and
proved 433 documents. At the close of the trial, the Sessions Judge acquitted accused 5 to 8 and 10 of all the charges. In so far ·as the accused·
1 to 3 and 9 are concerned, they were also acquitted to the offen~es under
G 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 sections 107, 109 and
272 read with section 34 of the Penal Code. Various sentences were
awarded for these offences.
3. The convicted accused ftled appeals before the Kerala High Court
H and the State challenged the acquittal of all the accused for the offence
-
E.K. CHANDRASENAN v. STATE [HANSARIA, J.]
285
under section 302 and the acquitt_al of accused 5 to 8 and 10 foi; . all the A
offences. The High Court heard all the appeals together and after'~ very
detailed examination of the materials 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 B
undergo rigorous imprisonment for seven years. The 10th accused was
further convicted under sections 120- B and 328 read with 107 and 109 as
well as 272 read with 34, 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 C
of Rs, 1,000 were awarded, with the rider that the substantive terms of
imprisonment would run concurrently.
4. 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 D
"?'
Bench felt that the case of enhancement exists; and so, rules of enhancement were ordered on 5.1.94. Learned counsel for the appellants addressed
us on the question of enhancement as well. In so far as accused 9 is
concerened, he had filed SLP(Crl.) No. 1190/90 which was dismissed on
July 31, 1990. Review Petition was also dismissed on August 28, 1991. By E
an order dated 10.11.94, he was, howeyer, 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 awarded to him merits enhancement.
F
5. Let it first be seen whether the c.onviction as awarded by the High
Court is sustainable. To decide this, what we shall have to primarily see is G
whether the five accused before us liad acted in concert in committing the
offences for which they have been held guilty by the High Court. Before
examining· this aspect, .it may be stated as the High Court also had not
convicted any of the appellants under section 302 of the Penal Code and
as t~ere is no appeal to this Court against the acquittal under section 302, H
286
SUPREME COURT REPORTS
[1995] 1 S.CR.
. A 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,
propose to contine our discussion to the conviction as awarded by the High
Court.
6: The licence to vend liquor being in the nathe of the aforesaid firm
B (Bee Vee Liquors), it is apposite to mention that in this firm, which was
started on 13.3.1980, initially accused 2 and 10 were partners, in which
partnership eight persons including 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 accus~d 1 and 2 alongwith wife of the
, C 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 culmitiated in the aforesaid tragedy. For the sake of completeness, it may be
pointed out that though accused 10 withdrew from this partnership someD time before the tragic occurrence, there is a finding based on materials on
record that he continued his relationship with the firm.
7. The liquor having been supplied by the aforesaid firm, the principal agrument of the learned counsel appearing for the appellants is that
E the aforesaid accused cannot be held guilty of any criminal offence for the
mi$deed, 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 N ambiar 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
F . that the five accused named above had acted in concert in adulteration 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 c~arge of
the management and accused 9 had entered into conspiracy either inG dividually 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 follow, according to Shri Nambiar, either because of the
c0nspiracy of the partners of because of the common intention on the part
of the partners. According to the counsel appearing for the appellants,
H however, the mere fact that the accused 1, 2, 3 and 10 wer~ in active
E.K. CHANDRASENAN v. STATE [HANSARIA, J.)
287
management of the firm (which they dispute) would not be sufficient, in A
the absence of any evidence relating to conspiracy, to hold them guilty of
the offences in question.
8. Let it first be seen whether from the evidence as led in the case
the conclusion arrived at by the High Court that the four aforesaid accused
were in active management of the firm suffers from any infirmity.
B
9. 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. C
This question is really relevant qua accused 10. As regards him, the High
Court has mentioned about the following circumstances 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 D
the judgment);
(ii) the continued user of the jeep belonging to this accused by the
firm of Bee Vee Liquors (para 109);
(iii) dealing with all labour problems and service conditions of the E
employees of the firm (para 111);
(iv) joint management of the firm at hand and Vypeen Liquour, in
which this accused was admittedly taking leading part, treating
them as sister concerns (para 111);
(v) continuous money transactions between Bee Vee Liquors and
Cochin wines, another firm of this accused (para 112); and
(iv) over-draft applications made by this accused along with accused
2 on behalf Bee Vee Liquors in May, 1982 (para 114).
10. The aforesaid circumstances do not leave any manner of doubt
F
G
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 employees of H
288
SUPREME COURT REPORTS
(1995) 1 S.C.R.
A the firm.
11. In the aforesaid premises, we have no hesitation in agreeing with
the conclusion arrived at by the High Court that all the four appellants
were taking active part in the management of the firm. Shri Sanyal contends
B
that this by itself is not sufficient to hold this accused guilty of the offences
in question in the absence of any satisfactory proof relating to conspircy,
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 parac graph 145 that there was a conspiracy.
12. In 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
D 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 gains from the ad\dteration which was undertaken on behalf of the firm - to commit the offences.
E 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 persons in the management of the firm such a venture would not
have materialised.
F
13. We may give some idea about the magnitude of the illegal act
which wa:s 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 varnish and paints. He purchased 23 barrels
of methyl alcohol from Rekha Chemicals at Bangalore under fictitious
G 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 barrel~ 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
,.
H as below:-
...
E.K CHANDRASENAN v. STATE [HANSARIA, J.]
289
"Item
Sprt
Water
Arrack
Total
%
A
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
No. 2 may be used only if necessary
B
Taste and kick will be alright.
No. 3 may be used only if essential -
Its taste has to be tested
specially. It shall not exceed
15% for any reason.
C
Sprt
Water
Arrack
= 25 lit.
= 50 lit.
125 r
= 200 it.
In this proportion pour in a drum, mix and
pack after one hour.
Taste, kick etc. will be alright."
14. Though the aforesaid Exhibit speaks about "Sprt" because of
which a contention has been advanced on behalf of the appellants that what
D
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 E
methyl alcohol as would appear_ from the report of the Chemical Examiner
brought on record. Sampl~s. which were sent for examination revealed that
some of the barrels contained methyl alcohQ! 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%. It is not disputed that methyl p
alcohol is virtually poison. The quantity supplied by accused 9 was about
20,000 litres, the price of which per litre was 50 naya paisa. As per the
afore-noted formula, in total quantity of 200 litres 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 G
aimed at · illasmuch as 50 naya paisa stuff was passed on as liquor which
must have been sold at a price many times more. The greed for huge money
is thus writ large in the abominable planning.
15. Another aspect of the case makes the criminality apparent. The H
290
SUPREME COURT REPORTS
(1995) 1 S.C.R. '
A firm had .lifted only 32<Jq litres of arrack froni 1.8.92 upto 2.9.82 as against
the sancti~ned quantity of ~,000 litres, but during this period ~t .dist~ibuted
19,492.05 htres through various shops and sub-shops. The add1hona1 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
B season for which permission was sought, it would have ·at least lifted the
full quantity of arrack sanctioned to it but it did not; insteed, it went for
adulteration, and that too with such a poisonous material which ultimately
y
1
resulted in 70 consumers dying, 24 loosing eye sights permanently and many
"'
others suttering minor injuries.
C
16. 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
D 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 Shir Sanyal noted above be dealt with now.
17. The High Court having dealt with the evidence of these witnesses
at some length from paras 138 to 144, we do not propose to note what
· E .these witnesses had stated. Instead, we would deal with the criticism
advanced by Shri Sanyal. The main attack of Shri Sanyal is about omission
of the name of accused 10 by these witnesses when they were questioned
during investigation. 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
· p named this accused, so had PW. 278. As regards those witnesses who had
omitted to name, the High Court has given cogent reason as to why despite
omission found in their statements as recorded by PW. 324 (the Investigating Officer) their evidence should be accepted. Not only this the High
Court has dealt with the reasons given by the trial court for disbelieving
these witnesses and has adequat~ly met the reasons. We do not propose
G to traverse this ground over again as we are fully satisfied about this part
of High Court's judgment.
18. As, howe~er, Shri Sanyal has taken pains to highlight the omission
by some of the witnesses in naming accused 10 during investigation, we
H propose to say a few words regarding this submission. A perusal of the
E.K. CHANDRASENAN v. STATE [HANSARIA, J.)
291
judgment of the High Court leaves no manner of doubt that the investigatA
)iing 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 B
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 newspapers offering reward,
which drama ultimately ended at Delhi. It would be a fitting finale that the C
last act of the judicial exercise as regards of this accused also ends at Delhi.
19. It 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 D
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 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. Much cannot, therefore, E
be allowed to be made about omission of the name of this accused in the
statement of some of the aforesaid PWs as recorded by the Investigation
Officer.
20. The aforesaid is all that is required to be said to deal with the p
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 G
criminal matter, when can order of acqquittal 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 thr, 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 H
292
SUPREME COURT REPORTS
[1995) 1 S.C.R.
A that the_ doctrine of vicarious liability was not pressed into service by S'1ri
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
B 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 dear
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
C 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 consipiracy by this accused has no significance.
D
21. Insofar as other appellants are concerned, not much is requited
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 1 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
E 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. The further
submission of Shri Lalit is that the only work entrusted to this accused
F 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 instanc;e of accused 3, states Shri Lalit. These
facts do not militate against the conclusion arrived at by the courts below
that this accused was thick and thin with others. The High Court has
G summed up its views qua him in paragraph 185 of the judgment. Among
the facts mentioned is that it was he who was one of the bidders for 1982-83
and it was he who had applied for permission for keepting arrack shops
open till night in the festival season from 3.8.82 to 16.8.82 and from 1).8.82
to 5.9.82.
H
22. As regards accused 2, Shri Nair refers us to the grounds taken in
•f;
E.K. CHANDRASENAN v. ST ATE [HAN SAR IA, J.)
293
Criminal Appeals 563-64/90 fil~d by him which are from pages 127 to 132.