Criminal Appeal Nos. 309, 367 & 434 of 2008

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 31ST MARCH 2008 / 11TH CHAITHRA 1930 CRL.APPEAL No. 309 of 2008 -------------------------S.C.NO.868/2003 of II ADDL.SESSIONS COURT, KOLLAM C.P.NO.263/2002 of JUDL.MAGISTRATE OF FIRST CLASS-I, KARUNAGAPPALLY .................... APPELLANT/ACCUSED NO.2: --------- MANOJ KUMAR, S/O. SIVANANDAN DEEPAVANAM VEEDU, AKKOLI CHERI ERAVIPURAM VILLAGE. BY ADV. SRI.P.VIJAYA BHANU SRI.M.REVIKRISHNAN RESPONDENT/COMPLAINANT: ---------- STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SHRI K.C.SANTHOSH KUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31/03/2008 ALONG WITH CRL. APPEAL NOS.367 AND 434 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **J.B. Koshy & K.Hema, JJ. -------------------------------------Crl.Appeal Nos.309, 367 & 434 of 2008 --------------------------------------Dated this the 31st day of March, 2008** ## **Judgment** ## **Koshy,J.** Four persons died and several persons lost full or partial vision allegedly due to consumption of spurious liquor purchased under the guise of Ayurvedic medicine from Ajith Ayurvedic shop run by first accused. Accused No.2 is stated to be an Ayurvedic doctor who is the technical assistant who has countersigned the renewal of licence application of the manufacturing unit of first accused. Accused Nos. 3 and 4 are salesmen in the Ayurvedic shop from where the customers consumed arishtas, an Ayurvedic preparation allegedly mixed with ethyl and methyl alcohol. Accused No.5 was alleged to have procured and brought methyl alcohol to the said shop owned by the first accused. The allegation of the prosecution was that all the five accused together mixed the same and they were charge-sheeted. The charge framed by the court is as follows: "That you Ajith Kumar (A1) took building No.III/457 in Kulasekharapuram Panchayat on rent; 2 **Crl.A.Nos.309, 367 & 434/2008** That you Suresh Kumar (A3) and you Balachandran (A4) under the supervision, management and responsibility of you Manoj Kumar (A2) have been manufacturing Ayurvedic Preparation like Arishtas in the said building; That while so, you Ajith Kumar (A1) bought methyle alcohol from you Chandra Babu @ Pavithra (A5); That you accused 1 to 5 together mixed spirit containing the methyl alcohol in the Arishtas and other Ayurvedic preparation to increase the strength of them and stored the said mixture for sale in Ajith Ayurvedic located in room No.1/20/1 of Kulasekharapuram Grama Panchayat in violation of the provision of the Abkari Act; That you Suresh Kumar (A3) and Balachandran (A4) sold the said Arishta to Lawrence Crusino, Felix Rodrix @ Kunjumon, Shaji (CW5), Anthappan (CW4) on 27.5.2000; That you Suresh Kumar (A3) and Balachandran sold the said Arishta to Jhonson (CW2), Sreekandan (CW3), Padmakaran (CW6), Elias (CW7), Stephen (CW8), Vijaya Kumar (CW9), Vinod (CW10), Rajappan (CW11), Sasi (CW12) and Sudheesan (CW13) also; That these persons consumed the Arishta so purchased; That Lawrence Crusino and Felix Rodrix felt severe bodily pain and were taken to the Taluk Head Quarters Hospital, Karunagappally and while undergoing treatment died at 7.20 a.m. on 29.5.2000 and 12.45 a.m. on 29.5.2000 respectively due to the poison (Methyle alcohol) which was mixed in the Arishtam; That CW2, CW3 who consumed the arishta 3 **Crl.A.Nos.309, 367 & 434/2008** suffered severe bodily pain, headache, chest pain and breathing problem and ultimately they lost sight of both eyes; That CW5 who consumed the arishta suffered head ache, breathing trouble, body ache and partially lost eye sight; That CW4, CW6 to CW13 who consumed the arishtam sustained body pain, chest pain and other physical discomfort; That you mixed the arishtam with poisonous substance as methyl alcohol and sold the same with the knowledge that it is so imminently dangerous and in all probability cause death or other bodily injury as is likely to cause death and thereby caused death or Lawrence Crusino and Felix Rodrix and bodily injuries to CW2 to CW13; That the aforesaid acts were done in furtherance of your common intention to do criminal acts; and That you also caused the evidence for the commission of offence disappear; Thus you all committed offence under section 302, 307, 325, 201 read with section 34 IPC; under section 55(a), (b) d (i), Section 57A (2) and 58A of Abkari Act and under section 6 of Poisons Act, within the cognizance of this court." After trial, they were convicted for the offence punishable under section 304, Part II, 325, 201 read with section 34 of the Indian Penal Code and also under section 55 (a), (b) and (i) and 57 (A) (ii) and 58 (A) of the Abkari Act and section 6 of the Poisons Act. They 4 **Crl.A.Nos.309, 367 & 434/2008** were sentenced to undergo rigorous imprisonment for ten years each under section 304 Part II and rigorous imprisonment for seven years each for the offence under section 325 and rigorous imprisonment for three years each under section 201 read with section 34 of the Indian Penal Code. The accused were also sentenced to undergo imprisonment for life under section 57(A) (ii) and rigorous imprisonment for three years each under section 55 (a), (b) (i) as well as under section 58 (A) of Abkari Act and also directed to pay a fine of Rs.One lakh each under section 55 (a), (b) and (i) of the Abkari Act. On failure to pay the fine, they have to undergo default sentence of one year each. First accused did not file any appeal. Sentence of second accused was suspended pending disposal of the appeal (Crl. Appeal No.309 of 2008) after considering the prima facie nature of the case. Accused Nos.3, 4 filed Crl. Appeal No.434 of 2008 and Accused No.5 filed Crl. Appeal No.367 of 2008 along with petition for suspending the sentence. When bail applications filed by A2, A3 and A4 came up, we had directed that the entire records should be called for and the appeals can be disposed of instead of passing orders on bail application and, 5 **Crl.A.Nos.309, 367 & 434/2008** therefore, records were called for and all these three appeals were heard together on merit. 2. PWs 1 to 11 were injured witnesses. Eye sight of PW1 was lost and, according to him, on 28.5.2000 at about 4.30 p.m., he consumed arishta from the shop of first accused. He also stated that he used to consume arishta from the above shop regularly. He further stated that on that day when he went there, PW6 as well as Lessy were consuming arishta from the above shop. He paid Rs.30/- to the fourth accused and purchased arishta. According to him, fourth accused went behind the shelf and brought arishta in two glasses and one was given to him and the other was given to PW6. According to PW1, after consuming the arishta, he felt pain to his body and also dizziness and he went to his house and took rest. In the morning, when he attempted to take breakfast, he vomitted. In the afternoon, he felt very tired and had a feeling that his eye sight was diminishing. So, he went to a nearby private hospital. Then, he came to know that Kunjumon and Lawrence who had consumed arishta had died. So, on the next morning, he went to the Taluk Headquarters Hospital, Karunagappally and from there he was taken to the District Hospital, Kollam. According to him, his eye sight was lost due to the consuming of arishta supplied **Crl.A.Nos.309, 367 & 434/2008** 6 by Accused No.4 from the shop of A1. PW1 was thereafter treated in the Medical College Hospital, Thiruvananthapuram. His eye sight was lost completely. According to him, after about one to one and a half hour after consumption of the arishta, he had burning sensation in his chest and dizziness. According to him, he had not seen the fourth accused adding anything to the arishta since it was brought from the room which was separated with a curtain. Arishta was taken in a glass and given to him. He also stated that fourth accused was known to him earlier and he is a neighbour and there is no dispute regarding his identity. 3. PW2 is another injured witness. He also consumed alcohol on 28.5.2000 at about 7.00 p.m. According to him, when he went to consume arishta, PW11 was also there to consume arishta. Though he intended to have his food after consuming arishta, he felt dizziness and became unwell. So, he went to his house without taking food and he became unconscious and he regained consciousness only on the next day morning and at that time he felt loss of vision and dizziness. In spite of taking bath, he did not get any relief. He went to the neighbour Maniyan's house. When he reached there, he was not feeling well and he lied down in the bench in the house of Maniyan. He took some water from the house 7 **Crl.A.Nos.309, 367 & 434/2008** of Maniyan and returned. He felt too weak and suspected that he will fall down. Then, he came to know that people who had consumed arishta from the very same shop had become unwell and was taken to the hospital. He was unable to take food and by about 10 o'clock in the night, he went to Taluk Hospital, Karunagappally. From there, he was sent to District Hospital, Kollam. He deposed that he has lost his eye sight due to consumption of arishta. According to him, accused Nos.3 and 4 were salesmen in Ajith Ayurvedic. He identified A1, A3 and A4. Similar evidence was given by PW4. All of them have stated that after giving cash to accused No.3 or 4th accused gave them arishta and thereafter they felt dizziness and later they felt dizziness and later their eye sight was lost. PW3 also consumed arishta which was sold by A3. PW7 deposed that second accused is the doctor who came there and examined patients. PW8 has deposed that he had consumed arishta which caused injuries to him and he has seen A5 as the person bringing arishta in scooter and autorickshaw. According to PW9, A5 used to visit the shop. PW9 was also injured after consumption of arishta from the shop. PW11, a fisherman, also stated about the injuries he sustained after the consumption of arishta in the evening of 28.5.2000. He also stated that A5 used to come to that shop 8 **Crl.A.Nos.309, 367 & 434/2008** frequently. Evidence of PWs 1 to 11 clearly show that all of them had consumed arishta from the shop of A1. They purchased the same after paying the price to A3 or A4 and they sustained serious injuries thereafter due to the consumption of arishta from the above shop. All of them identified A1, A3 and A5. Some of the witnesses also stated that A2 is the doctor attached to that hospital and he used to examine patients two days in a week. They have also seen A5 coming to the shop of A1 frequently in an autorickshaw or a scooter. One witness has also stated that A5 was bringing articles to the shop. PW12 is a neighbouring shop owner who is a witness to the seizure. PW29 stated that the shop building is owned by him and A1 has taken it on rent for conducting ayurvedic medicine business. He further stated that A3 and A4 are seen in the shop. PW13 is an autorickshaw driver. He stated that Lawrence and Kunjumon are working in the Vallikavu jetty and they frequently come to the ayurvedic shop at the Vallikkavu jetty. He came to know that Lawrence died due to consumption of poisonous substance from the ayurvedic shop and the shop was being conducted by A1. 4. Wife of deceased Kunjumon was examined as PW14. She has deposed that Lawrence who died in the same incident was 9 **Crl.A.Nos.309, 367 & 434/2008** a neighbour. According to PW14, her husband died at 12.45 p.m. on 29.5.2000 due to consumption of poisonous arishta from the shop of first accused. According to her, deceased Kunjumon consumed arishta at 8.00 p.m. on 27.5.2000. On reaching his house, deceased Kunjumon complained of uneasiness and went to bed without having his dinner. On the next day morning, when he got up, on getting information, he went there after having a tea. In the afternoon, he came back and had some food and went to the jetty by 3.00 p.m. He came back only by 11.00 p.m. Even though he was offered dinner, he was unable to take it and found very restless and was also unable to talk. Next day morning, he was unable to get up and he stated that he had consumed arishta from the shop. By about 8 o'clock in the night, Kunjumon became very restless and uttered that Larichan (Lawrence) and himself had consumed arishta from the shop of A1 and Lawrence had died and he will also die. She immediately took him to the A.M. Hospital where the doctor has stated that his condition was serious. Though doctor advised her to take him to Medical College Hospital, by 12.45 in the evening her husband died and dead body was removed to the mortuary. Brother of deceased Lawrence was examined as PW15. He stated that on the morning of 29.5.2000 Lawrence was taken to the 10 **Crl.A.Nos.309, 367 & 434/2008** Karunagappally Hospital. He was taken back to the house and died on the same day. PW15 also deposed that Kunjumon was found rolling around uttering that Lawrence who had consumed arishta from the shop of A1 along with him had died and he who had consumed arishta with Lawrence also will die. PW15 is a resident near Vallikavu jetty. He knew the ayurvedic shop conducted by A1 and he also identified A3 and A4 as the salesmen of the shop. Daughter of the deceased Lawrence was examined as PW16. According to her, her father as well as Felix @ Kunjumon happened to die since arishta supplied from the shop of A1 contained poisonous substance. A nearby resident was examined as PW17. He has identified A3 and A4 as the salesmen of the shop. He also stated that he used to purchase medicines from the ayurvedic shop conducted by A1 and PW18 is a taxi driver who had taken Lawrence. PW19 was examined to prove exhumation of the body of Lawrence. PW20 local panchayat member was only a witness to the inquest report of the body of Lawrence. PW21 is also another witness to the inquest report of the body of Felix @ Kunjumon. 5. The Assistant Drug Controller, Kollam who was examined as PW22 has stated that he inspected Ajith Ayurvedic Pharmacy at Vallikavu. A1 was having a drug licence which was 11 **Crl.A.Nos.309, 367 & 434/2008** valid upto 31.12.1999. He had preferred an application for renewing the licence for the period 2000-2001. As per the stipulation in the rules, a technical staff is to be employed in the manufacturing unit and he should sign in the application form and from 29.3.2000, the technical staff in Ajith Ayurvedic Pharmacy is Dr.Manoj Kumar, second accused in this case. The ayurvedic shop of A1 was situated at the boat jetty and its manufacturing unit was situated at Vallikkavu and A2 was the technical staff in the Vallikavu factory. We also note that the prosecution has no case that any noxious substance was mixed in the Vallikavu factory. PW23 also has stated that from the ayurvedic manufacturing unit, medicines are delivered in sealed containers. None of the sealed bottled supplied from the shop contained noxious substance as per the chemical analysis reports. 6. PWs 26 to 28 are some of the doctors who had treated some of the patients who lost lives in the above incident. On 30.5.2000 at 9.30 a.m. PW26 Assistant Surgeon attached to the Government Hospital, Karunagappally examined PW1 who had complained diminution of vision on account of consumption of arishta containing alcohol during the night of 28.5.2000. Ext.P7 is the accident register-cum-wound certificate issued by this witness. 12 **Crl.A.Nos.309, 367 & 434/2008** He has referred PW1 to the District Hospital, Kollam. He has also given evidence that several persons who consumed arishta from Vallikavu jetty were referred to the District Hospital. PW27 was working at the Regional Institute of Ophthalmology during the above period and on 1.6.2000 he had examined PW1 who was referred from the Medical College Hospital to the Regional Institute of Ophthalmology with loss of vision of both eyes on account of ethyl alcohol poisoning. He was treated upto 12.6.2000 and the diagnosis was methyl alcohol poisoning resulting in damage to optic nerve of both eyes. It is also reported by this witness that PW1 is almost blind at the time of discharge and the photostat copy of the discharge card is marked as Ext.P8. According to PW26, PW2 was also treated by him on 8.6.2000. It is deposed by this witness that this was also a case of methyl alcohol poisoning and PW2 suffered considerable loss of vision of both eyes. It has come out from his evidence that he is having only two lines of vision out of the seven lines to both his eyes. The discharge card pertaining to PW2 is marked as Ext.P9. PW28 is the Chief Medical Officer attached to A.M. Hospital, Karunagappally. According to him, deceased Kunjumon was admitted in his hospital at 9.35 p.m. on 29.5.2000. He was having the history of intake of arishta from a local shop two **Crl.A.Nos.309, 367 & 434/2008** 13 days prior and the patient was admitted in an unconscious stage. It was reported that another person has died after consuming the same product. Kunjumon expired at 12.20 a.m. on 30.5.2000. The case sheet pertaining to the above patient was marked as Ext.P40. Ext.P40 will reveal that the deceased Kunjumon was admitted in that hospital at 9.00 p.m. on 29.5.2000 in a serious condition with the history of intake of arishta two days back. The fact that another person who consumed the same product had died that morning is also seen noted in it. 7. The doctors who had treated the witnesses as well as the deceased Lawrence were examined as PWs 31, 34, 44 and 49. PW31 was the Assistant Professor of Medicine, Medical College Hospital, Thiruvananthapuram who had treated PW2. According to him, on 30.5.2000, he examined PW2 who came with the complaint of intake of hooch one day before. The above patient was having difficulty in vision and he was also vomitting. According to him, on examination, the vision of the patient appears to have decreased and the light reflexes were found to be sluggish. There was retinal oedema and he was referred to Ophthalmic Hospital for better management. Ext.P9 (b) is the referral O.P. card prepared from the Medical College Hospital. According to this witness, the above 14 **Crl.A.Nos.309, 367 & 434/2008** referral O.P. card was prepared by himself and Dr.Murukesan who was his unit chief. He has also deposed that the complaints noted in Ext.P9 (b) can be due to methyl alcohol poisoning. PW34 was the Assistant Surgeon attached to the District Hospital, Kollam. On 31.5.2000 he had examined PW9. The above patient was admitted in the hospital and was discharged on 8.6.2000. Ext.P18 is the discharge card. According to him, this was a referred case with the history of consumption of poisonous arishta and he was brought to the District Hospital on 31.5.2000. Ext.P19 is the O.P. ticket and Ext.P20 is the case sheet pertaining to the above patient. The entries in these documents are in confirmity with the prosecution case of consumption of poisonous arishta. On the same day, this witness has examined and admitted PW10. He was discarded on 5.6.2000. Ext.P21 is the discharge card. The above patient was admitted with alcoholic gastritis and Ext.P22 is the O.P. ticket and he was also admitted with complaint of consumption of adulterated arishta. The case sheet pertaining to this witness is marked as Ext.P23. According to this witness, as per Exts.P20 and P23 the finding is alcoholic gastritis and the vision of both these patient were reported to be normal. PW44 has given evidence that on 29.5.2000, one Lawrence was brought to him in a very bad 15 **Crl.A.Nos.309, 367 & 434/2008** condition. He was completely exhausted due to vomitting. His condition was very bad and the B.P. was low. After first aid and a betinizol injection, he was referred to the District Hospital, Karunagappally. PW49 was the Assistant Professor of Medicine, Medical College Hospital, Thiruvananthapuram on 30.5.2000. On that day, PW1 was admitted in the above hospital and was discharged on 5.6.2000. Ext.P8 (a) is the discharge summary of the above patient. According to this witness Dr.Murukesan was the Unit Chief and he was Assistant to him. PW1 was admitted with complaint of intake of hooch one day prior to his admission followd by generalised weakness, excessive sedation and diminution of vision. History of vomitting was also present. The opinion as to the cause of permanent damage to vision of the above patient is methyl alcohol poisoning. PW32 conducted postmortem of Felix Rodrix on 30.5.2000. Ext.P12 is the postmortem certificate. Cause of death is noted in the certificate as methyl alcohol poisoning. Opinion as to cause of death was given on the basis of the chemical analysis report which is marked as Ext.P13. Ext.P14 is the office copy of the letter intimating that the viscera and blood which were collected at the time of postmortem examination were forwarded for chemical analysis which was omitted to be noted in Ext.P12 postmortem 16 **Crl.A.Nos.309, 367 & 434/2008** report. Though the original of Ext.P14 is seen appended to Ext.P12 there were no attempt to get it marked. The final opinion as to cause of death given on 30.6.2000 is marked as Ext.P15. According to this witness, as per Ext.P12 postmortem certificate the above patient died on 29.5.2000. 8. The chemical analysts who had examined the material articles in this case were examined as PWs 33 and 39. PW33 has given evidence that while she was working as Joint Chemical Examiner, Thiruvananthapuram on 16.10.2000 she had issued Ext.P16 chemical analysis report. She had received 91 sealed bottles and eight sealed packets with Sl.Nos.1 to 107 alleged to be ayurvedic medicines involved in the above case. As per the chemical analysis report, ethyl alcohol was detected in samples covered by item Nos.1 to 6 and 8 to 11, 16, 19, 21, 24 to 37, 43, 46, 47, 51 to 53, 63 to 69, 71, 72, 74, 76, 79 to 100 and 105. She has also given evidence that samples covered by item Nos.19, 29 to 36, 51 to 53 and 79 were found to contain added alcohol. PW39 chemical examiner issued Ext.P13 certificate after examining parts of intestine with its contents, part of liver and kidney and sample of blood of deceased Kunjumon which are mentioned as item Nos.1 to 3 in the above report. PW39 had given evidence that the above **Crl.A.Nos.309, 367 & 434/2008** 17 samples contained ethyl as well as methyl alcohol. 6.0 mg. ethyl alcohol and 166.0 m.g. methyl alcohol per 100 ml. of blood was detected in the above samples. On 9.6.2000, PW39 has received seven sealed bottles containing the viscera etc. of Lawrence who had also died in the incident alleged to have occurred in this case. The above articles were also examined under the personal supervision of this witness and the chemical analysis report dated 3.8.2000 is marked as Ext.P39. Items 1 to 4 in the above report are the stomach and part of intestine, liver and kidney, blood and urine of the deceased Lawrence. Item Nos.5 to 7 are saturated saline which was used as preservative and soil from the top and surface of the coffin respectively. It is reported that item Nos.1 to 4 contained ethyl as well as methyl alcohol and item No.2 contained 81 mg. per 100 gm. methyl alcohol and 23 mg. per 100 gm. of ethyl alcohol. No other poisonous items were detected in the above samples. According to this witness, as per Exts.P13 and P39, the death in the above cases were on account of ethyl alcohol poisoning. 9. Medical certificates and chemical analysis reports clearly prove that death of Felix @ Kunjumon as well as Lawrence were due to alcohol poisoning. The same was the cause of loss of vision to PWs 1 to 11. They have clearly stated that they felt the 18 **Crl.A.Nos.309, 367 & 434/2008** trouble only after consumption of arishta from the shop of A1 and the arishta was sold to them either by A3 or A4. It has also come out in evidence that several persons other than PWs 1 to 11 also consumed arishta and got trouble. Even though defence witnesses were examined, their evidence was not able rebut the evidence adduced by the prosecution. It is proved conclusively that four persons died and many lost vision, either completely or partly, due to the consumption of arishta from the shop of A1. 10. According to A2, he only signed in the application for renewal of licence. He had just completed his ayurveda degree from the Ayurveda College, Thiruvananthapuram in the year 1999. He has not worked as technical instructor to the firm alleged in the above case or any other concern. We also note A1, the licensee of the shop, has not filed any appeal. So far as A2 is concerned, he has signed the renewal application of the manufacturing unit at Vallikavu conducted by A1. There is no case for the prosecution that the manufactured medicines in the unit contained methyl alcohol. All the sealed bottles taken from the shop also did not contain any methyl alcohol and it only contained permitted percentage of alcohol. According to the prosecution also, **Crl.A.Nos.309, 367 & 434/2008** 19 adulteration of the medicine with methyl alcohol took place in the shop and not at the manufacturing unit. Even if A2 was the technical assistant in the factory, since no mixing was done in the factory, he cannot be convicted for the alleged offence. It is true that witnesses have seen A2 coming to the shop for examining patients twice in a week. Merely because A2 who is a qualified ayurvedic doctor comes and examines the patients in the shop, it cannot be stated that he has got any involvement in mixing or selling of methylate alcohol. None of the prosecution witnesses had deposed that he was seen mixing or selling the medicine from the shop. In the above circumstances, we see no ground to convict A2. It has come out in evidence that those who have injured in this case are regularly taking arishta from the same medical shop. But, none of the witnesses stated that A2 prescribed the arishta for them or A2 sold the same or they had seen A2 mixing medicines there in the shop. Merely because he endorsed the application for renewing the licence to the factory of A1 alone, he cannot be convicted for any of the offences charged against him. Therefore, conviction and sentence of A2 are set aside. He is acquitted of all offences. 20 **Crl.A.Nos.309, 367 & 434/2008** 11. As far as A5 is concerned, only evidence against him is that he used to visit the ayurvedic shop of A1 by scooter or autorickshaw. Nobody has stated that he has transported methyl alcohol to the shop. Nobody has also stated that he was involved in mixing or selling the alcohol. Merely because he used to visit the place by scooter or autorickshaw, it cannot be stated that A5 is also involved in the incident. None of the prosecution witnesses stated that A5 had possession of methyl alcohol or he took the same to the shop. There is no evidence at all against A5. Hence, conviction and sentence against A5 also also set aside. 12. As far as A3 and A4 are concerned, they denied their involvement in the case. Third accused in his 313 statement took the stand that even before the alleged occurrence the shop in question was not functioning. It is his further case that there are several persons engaged in the sale of spurious liquor at Vallikavu. Due to the enmity towards the first accused, police came in search of them and accordingly they surrendered before the Judicial Magistrate of the first class, Karunagappally. Fourth accused had also stated that even before the alleged incident, the above ayurvedic shop was not functioning. According to him, there are **Crl.A.Nos.309, 367 & 434/2008** 21 several persons engaged in the sale of spurious liquor in that locality including one Lona Cardauza and he had been falsely implicated in this case due to the enmity towards the first accused. He is employed as a security and has nothing to do with the case. But, there is direct evidence to show that either A3 or A4 sold arishta to PWs 1 to 11. All of them have stated that after they have paid cash, arishta was brought by A3 or A4 from the room which has been separated with a curtain. Arishta containing methyl alcohol was sold to them by A3 or A4 and by consuming that arishta, they got injuries. 13. Now, we will come to section 57A (1) (i) and (ii) which reads as follows: "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; 22 **Crl.A.Nos.309, 367 & 434/2008** (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;" It is contended that there is no direct evidence that he has mixed or permitted to mix any noxious substance, but, sub-section (5) of section 57A reads as follows: "(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 subsection (2), the burden of proving that he has not mixed or permitted to be mixed or, as the case may be, omitted to take reasonable precautions to prevent the mixing of, any substance referred to in that sub-section with any liquor or intoxicating drug shall be on him; (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 referred 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." The contention that the specific question regarding mixing by A3 and A4 was not proved and all the incriminating circumstances were not put to him cannot be accepted. In the beginning of 313 23 **Crl.A.Nos.309, 367 & 434/2008** questioning itself it was stated that he has understood the charge. In the charge itself, the allegation against the accused was mentioned and he was asked whether he has got any further explanation and according to A3 and A4, they have nothing to do with the sales of arishta and according to them first accused closed the shop much before the incident. They also suggested that they might have consumed poisonous alcohol from either the toddy shop or from the illicit arrack shop outside. But, evidence in this case clearly prove that A3 and A4 were the salesmen who sold the arishta to the deceased and injured in the shop of A1 on the relevant date. When the constitutional validity of section 57(A) was challenged, the Hon'ble Supreme Court in P.N. Krishna Lal and others v. Govt. of Kerala and another (1955 Supp (2) SCC 187) held as follows: "52. The doctrine of reading down subsection (5) of section 57-A is not applicable to the situation arising under the Amendment Act. Therefore, it is not necessary to deal with the decisions on Maneka Gandhi ((1978) 1 SCC 248); Kehar Singh v. State (Delhi Admn.) ((1988) 3 SCC 609); Delhi Transport Corpn. v. DTC Mazdoor Congress (1991 Supp (1) SCC 600) and Sunil Batra v. Delhi Admn. ((1978) 4 SCC 494). The question of intention and the distinction between murder and culpable homicide under sections 300 and 299 IPC and the doctrine of negligence and culpability under section 304-A IPC and the decisions arising thereunder are not 24 **Crl.A.Nos.309, 367 & 434/2008** relevant. The question of intention bears no relevance to an offence under section 57-A and equally of culpability or negligence. It is seen that mixing or permitting to mix noxious substance or any other substance with liquor or intoxicated drug or omission to take reasonable precaution or being in possession without knowledge of its adulteration for the purpose of unjust enrichment would be without any regard for loss of precious human lives or grievous hurt. The legislature has noted the inadequacy and deficiency in the existing law to meet the menace of adulteration of liquor etc. and provided for new offences and directed with mandatory language protection of the health and precious lives of innocent consumers. While interpreting the law, the court must be cognisant to the purpose of the law and respect the legislative animation and effectuate the law for social welfare. The legislature enacted deterrent social provisions to combat the degradation of human conduct. These special provisions are to some extent harsh and are a departure from normal criminal jurisprudence. But it is not uncommon in criminal statutes. It is a special mode to tackle new situations created by human proclivity to amass wealth at the altar of human lives. So it is not right to read down the law." We are of the view that the above observation is clearly applicable in this case since they have sold the arishta which contained methylated alcohol and they have no explanation how the arishta sold by them contained methyl alcohol which caused death and injuries. Therefore, considering the case under the backdrop of the 25 **Crl.A.Nos.309, 367 & 434/2008** burden placed on the accused, we are of the opinion that their conviction under section 57 (A) (1) (ii) is to be upheld. With regard to their conviction under section 55 (i) of the Abkari Act, we are of the view that they are liable to be convicted under section 55 (i) as they sold intoxicated drugs in contravention of the provisions of the Act. They are also guilty of the offence punishable under section 58A as it is proved that they sold ayurvedic preparation with reasonable belief that it is intended to serve as a substitute for alcohol or intoxicating drug. All injured witnesses deposed that they were regular visitors to the shop for drinking the so called arishta. 14. In this connection, we also refer to section 64 which is applicable for offence under section 55 and 58A. Section 64 reads as follows: "64. Presumption as to commission of offence in certain cases:- In prosecutions under section 55, section 55B, section 56A, section 57, section 58, section 58A and section 58B it shall be presumed until the contrary is proved, that the accused person has committed an offence under that section in respect of any liquor or intoxicating drug, or any still, utensil, implement or apparatus whatsoever for the manufacture of liquor other than toddy or of any intoxicating drug, or any such materials as are ordinarily used in the manufacture of liquor or of any intoxicating drug, of the possession of which he is unable to account satisfactorily; and the 26 **Crl.A.Nos.309, 367 & 434/2008** holder of a licence or permit under this Act shall be punishable, as well as the actual offender, for any offence committed by any person in his employ and acting on his behalf under section 8 or section 55 or section 55B or section 56 or 56A or section 57 or section 58 or section 58A or section 58B as if he had himself committed the same, unless he shall establish that all due and reasonable precautions were exercised by him to prevent the commission of such offence." But, no case has been made out under section 55 (a) or (b) and A3 and A4 are only employees of A1. Hence, conviction and sentence of A3 and A4 for offences punishable under section 55 (a) and (b) are set aside. The presumptions under section 57A (5) and under section 64 are not applicable for offences punishable under section 304 Part II or 325 IPC. Ingredients necessary for convicting A3 and A4 under the above offences were not conclusively proved by direct or indirect evidence. Hence, conviction of A3 and A4 under section 304 Part II and under section 325 are set aside. They are acquitted of the offences punishable under section 304 Part II and 325 of IPC. A witness was cited to show that A3 and A4 was seen washing the bottles. But, he turned hostile and, therefore, they are acquitted of offence under section 201 IPC also. Then, the question is what is the punishment to be imposed under section 57A (1) (ii). It is submitted by the counsel for accused Nos.3 and 4 that they are only **Crl.A.Nos.309, 367 & 434/2008** 27 salesmen. Minimum punishment is only three years and a fine. Minimum fine is not prescribed. Maximum fine for the above offence is only Rs.50,000/-. Various mitigating circumstances were also pointed out to us. However, as a result of their selling liquor, two persons died and few persons lost their vision partly. Offence was committed. It has also stated that PWs 1 to 11 used to visit the shop for taking ayurvedic medicine. So, selling of intoxicating liquor under the guise of arishta must be the practice in that shop. On the day in question, the poisonous substance was little higher and that resulted in the incident. Here, they are privy to the transaction and they cannot plead ignorance as only salesmen. In any event, presumption under the Abkari Act read with its objects have to be considered. Considering all mitigating and aggravating circumstances, imprisonment of life imposed on A3 and A4 is set aside and each of them are sentenced to undergo rigorous imprisonment for seven years with a fine of Rs.25,000/- for the offence punishable under section 57 (A) (1) (ii) of the Abkari Act. They are also sentenced to undergo rigorous imprisonment for a term of seven years with a fine of Rs. One lakh for the offence punishable under section 55 (i) of the Abkari Act 28 **Crl.A.Nos.309, 367 & 434/2008** and three years rigorous imprisonment with a fine of Rs.10,000/- for the offence punishable under section 58 (A) of the Abkari Act. The substantive sentence of imprisonment shall run concurrently. In default of payment of fine, they shall also undergo rigorous imprisonment for a further term of three months on each counts of fine. In the result, Criminal Appeal No.309 of 2008 filed by A2 and Criminal Appeal No. 367 of 2008 filed by A5 against the judgment in S.C. No.868 of 2003 on the file of the 2nd Additional Sessions Court, Kollam are allowed. Since A2 is already on bail, his bail bond shall be cancelled and fine amount paid shall be refunded. A5 shall be released from the prison forthwith, if he is not required in any other case. Crl. Appeal No.434 of 2008 filed by A3 and A4 are partly allowed as stated above. **J.B.Koshy Judge** **K. Hema Judge** vaa 29 **Crl.A.Nos.309, 367 & 434/2008** **J.B. KOSHY AND K.HEMA ,JJ.** ------------------------------------Crl. Appeal Nos. 309,367 and 434 of 2008 ------------------------------------- **Judgment** Dated:31st March, 2008