REPORTABLE

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

J U D G M E N T

Dr. ARIJIT PASAYAT, J.  

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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

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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.

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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,

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(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) ;

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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 is

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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 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.

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(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

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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; October 21, 2008

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