IMPORTANT POINT
Depending upon the gravity and enormity of the crime, no leniency should be shown.
There is nothing wrong in ranting pardon towards fag end of the trial.

Headnote:(a) Code of Criminal Procedure, 1973 – Section 368(?) – Appeal against conviction – Appreciation of evidence in second appeal – Reapprciation of evidence is not called for in case of concurrent findings of fact – That can be done only in case the appreciation by courts below is substantially defective and the inferences drawn by them could not have been drawn in law. (Para 17)
        (b) Kerala Abkari Act – Section 57A(5)(a) and (b) – Constitutional validity the provision shifting burden of proof on the accused upheld in 1995 Suppl. (2) SCC 187. (Para 20)
        1995 Suppl. (2) SCC 187; (1970) 1 SCC 248; (1994) 3 SCC 569 – Relied upon
        (c) Kerala Abkari Act – Section 57A(5) – State has the absolute right to complete control on all kinds of intoxicant – No body has any absolute right to business or trade of liquor – In this context, providing exceptions or to place partial burden on the accused is not violative of universal declaration of human rights or even Convention on Civil or Political Rights. (Para 21)
        [1988] 13 EHRR 379; (1935) AC 462; (1942) AC 1; [1975] Q.B. 27; (1981) A.C. 648; 26 D.L.R, (4th) 200; (71) L.Ed. 749; 78 Law. Ed.664; 13, Law. Ed. 2nd. p. 658; 412 US 837; 442 US 140; 463 US 277; 395 US 6; [1956] SCR 199; [1960] 1 SCR 461 – Relied upon
        (d) Kerala Abkari Act – Section 57A – For being convicted under Section 57A, it is not necessary that the person concerned must himself do the mixing. (Para 32)
        (e) Evidence Act, 1872 – Sections 133 and 114 B – When evidence of a co-accused is reliable and corroborated materially, it will be admissible. (Para 41)
        (1994) 4 SCC 478; (1994) Suppl. (2) SCC 73 – Distinguished impliedly
        (f) Criminal Trial – Evidence – Presenting an accomplice as prosecution witness not illegal – Evidence of such witness admissible. (Para 42)
        AIR 1968 SC 938 – Relied upon
        (g) Evidence Act, 1872 – Section 32 – About 33 persons died by consuming illicit liquor – Evidence of relatives of the deceased cannot be ignored on ground of being related witnesses. (Para 43)
        (1997) 4 SCC 161; AIR 2001 SC 2383 – Relied upon
        (h) Kerala Abkari Act – Section 57A – Prosecution has the initial burden to suggest that the accused person was involved in the business of illicit liquor and that he knew the nature thereof – Thereafter the burden would shift to the accused to prove that he had no means to know about the nature of the business or the fact that the liquor was being mixed with noxious substance – Accused being actively involved in the business cannot feign ignorance and provisions of Section 57A applies. (Para 48)
        1995 Suppl. (2) SCC 187 – Relied upon
        (i) Indian Penal Code, 1860 – An accused being part of the illicit liquor business and taking active part in it can be looked u/s120B. (Para 50)
        [1963] 1 All ER 223; (1965) 1 SCR 123; [1969] 1 All Er 347; (1970) 3 SCC 183; (1994) 5 SCC 410; (1997) 8 SCC 732; [2000] 1 All 833 – Distinguished
        (j) Kerala Abkari Act – Section 57A – Considering the large number of deaths, no leniency can be shown. (Para 52)
        (k) Code of Criminal Procedure 1973 – Sections 306 and 307 – Pardon given towards fag end of the trial – No infirmity. (Para 56)
       Facts of the case:
        1. Practically all the accused were convicted for offences under Section 302, IPC and Section 57A (1) (iii) of the Abkari Act which is a State Act for the State of Kerala.
        2. The case concerns production and sale of illicit liquor.
       Finding of the Court:
        There is no infirmity in the impugned judgments.
       Result : Appeals dismissed.

JUDGMENT

1. This judgment will dispose of Criminal Appeal No.1528 of 2005 (Chandran @Manichan @ Maniyan v. State of Kerala) filed by Chandran (accused No.7), Criminal Appeal No.1530 of 2005 (Manikantan @ Kochani v. State of Kerala) filed by Manikantan (original accused No.4), Criminal Appeal No.1531 of 2005 (Manoharan v. Kerala State Rep. by Public Prosecutor) filed by Manoharan (original accused No.30), Criminal Appeal No.1532 of 2005 (Vinod Kumar @ Vinod v. State of Kerala) filed by Vinod Kumar (original accused No.8), SLP (Crl.) 842 of 2006 (Suresh Kumar @ Suresh v. State of Kerala) filed by Suresh Kumar (original accused No.25) and Criminal Appeal No.800 of 2006 (Herunessa @ Thatha v. State of Kerala) filed by Herunessa (original accused No.1). Out of all these appeals, the appeal filed by accused Herunessa @ Thatha has become infructuous since accused No.1, Herunessa is reported to have expired.

2. Leave granted in SLP (Crl) 842 of 2006.

3. All the accused-appellants stood convicted by the Sessions Judge, Kollam by its judgment dated 16.7.2002 for various offences punishable under Sections 120B, 302, 307, 326, 328 and 201 read with Section 34 of the Indian Penal Code (IPC) as also under Sections 55 (a) (g) (h) (i) , 57A and 58 of the Abkari Act. We need not refer to the punishments awarded to all these accused persons. Suffice it to say, that practically all of them were convicted for offences under Section 302, IPC Section 57A (1) (iii) of the Abkari Act which is a State Act for the State of Kerala. The accused persons under those Sections were sentenced to suffer rigorous imprisonment for life. They have also been awarded lesser sentences and have been slapped with heavy fines. They appealed against this verdict, the conviction and the sentences before the Kerala High Court which has set aside the conviction for offence under Sections 302 and Section 307, IPC, however, maintained the convictions of most of the appellants for offence under Section 57A (1) (ii) under the Abkari Act along with convictions under Sections 324, 326, 328 and 201, IPC as also the other Sections like Section 55 (h) and (i) and 58 of the Abkari Act. In short, most of the accused persons were directed to suffer rigorous imprisonment for life and, as the case may be, rigorous imprisonment for 10 years along with fine. All these appeals were heard jointly since they were against the common judgment. As many as 48 accused persons came to be tried before the Sessions Judge. Some of them were acquitted at the stage of trial and some others at the appeal stage, leaving the above mentioned appellants in the fray who are before us.

4. Alcohol has already proved itself to be one of the major enemies of the human beings. However, its grip is not loosened in spite of the realization of the evil effects of alcohol on the human life. On the other hand, the unholy grip is being tightened day by day. Therefore, when the standard and healthy alcohol in the form of liquor is not available or is too costly for a common man, the poor section of the society goes for illicitly distilled liquor which is sold by the bootleggers. The conscienceless bootleggers - thanks to their avarice for money - take full advantage of this human weakness and without any compunction or qualms of conscience, distill illicit liquor and then to increase the sale and to gain astronomical profits make their product more potent at least in taste so as to attract the poor customers. Such poor customers invariably become the prey of such unholy avarice on the part of the bootleggers and in the process even lose their lives at times or suffer such injuries which are irreparable like total blindness etc. and that is precisely what has happened in this case.

5. On 22.10.2000, in the wee hours, Sub-Inspector of Police, Paripally received information that one Raghunatha Kurup of Kulathoorkonam and seven others were admitted in the Medical College Hospital Thiruvananthapuram for treatment on account

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2011 Supreme(SC) 352

IMPORTANT POINT Depending upon the gravity and enormity of the crime, no leniency should be shown. There is nothing wrong in ranting pardon towards fag end of the trial.

Cases Referred (16)

IMPORTANT POINT
Depending upon the gravity and enormity of the crime, no leniency should be shown.
There is nothing wrong in ranting pardon towards fag end of the trial.