1134 of 2011 & 567 of 2015 Criminal Appeal No.72 of 2004, which confirmed the judgment and order dated 02.04.2004 passed by Sessions Judge, Kollam in Sessions Case No.1308 of 2003 vide which the present Appellants, two in number, namely, (i) Sajeev ( Accused No 10 ) and (ii) Roy ( Accused No.11 ) were convicted under Sections 302, 307 and 326 read with Section 120B of the Indian Penal Code (hereinafter ‘IPC’), Section 55(a), (h), (i) and Section 57 (A) (1) (ii) of the Abkari Act.
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On 04.04.2003, at about 7 PM, A1, A3, A10, and A11 hatched a conspiracy to mix methyl alcohol with spirit to sell the same for an unlawful gain through the outlet operated by A1. Accused No.1, 2, 5-9, 10 and 11 preferred appeals from the Trial Court to the High Court.
A1 – Thampi IPC – S.302 and 120B Imprisonment for life (302) and RI for 10 years (120B); Rs.50,000 fine Conviction affirmed for all offences IPC – S.307 RI for 7 years; Rs. 50,000 fine Abkari Act – S.57 (A) (1) (ii) Imprisonment for life; Rs. A10 – Sajeev A11 – Roy IPC – S.302 and 120B Imprisonment for life (302) and RI for 5 years (120B); Rs.25,000 fine Conviction affirmed for all offences IPC – S.307 RI for 5 years; Rs. 25,000 fine Abkari Act – S.57 (A) (1) (ii) Imprisonment for life; Rs. Accused Nos.10 and 11 have filed instant separate appeals by special leave against the final judgment and order of the High Court of Kerala, upholding their conviction, which were registered as Criminal Appeal No.1154 of 2011 and Criminal Appeal No.567 of 2015. State of Kerala to bring home the charge of conspiracy and from the material testimonies of PW23, PW24, PW11 and PW18, it is evident that on 04.04.2003, all three, i.e., A1, A10 and A11, hatched a conspiracy and in furtherance thereof, 21 cans containing methyl alcohol (Biosole) were delivered at the house of A1. The High Court observed that the testimony of PW11 establishes A10 and A11 having delivered Biosole at the residence of A1 in 21 cans in a maruti car in furtherance of the conspiracy hatched with A1.
Learned senior counsel and learned counsel for both these convicts (Appellants) submit that by no stretch of imagination can the act of conspiracy be attributable towards them. On behalf of the State of Kerala, learned senior counsel has submitted that the prosecution has placed sufficient evidence on record to bring home the charge of conspiracy against A10 and A11. Hence, the issues requiring consideration are: (a) the relationship between A10 & A11, and their relationship with A1; and (b) the role played by each one of them in hatching a conspiracy, if any, supply of Biosole and subsequent malice in the supply and sale of illicit liquor. 1134 of 2011 & 567 of 2015 brought 3 cans of 35L each, which were filled up with the contents of the cans taken out from the cardboard boxes taken out by A3 and A4 from the car. Even though this witness turned hostile, for not remembering having seen A10 and A11, yet, pertinently, he identified the car (MO16) of A10 in which the methyl alcohol was brought at the residence of A1 by the appellants. From a conjoint reading of the testimonies of the above witnesses, what comes to be established is that: (a) A10 and A11 were known to A1; (b) A10 and A11 visited the residence of A1 on 05.04.2003, in the presence of other accused persons/independent persons; and (c) some material which is alleged to be methyl alcohol was supplied in 21 cans, which were emptied into 3 cans of 35L each and stored at the residence of A1. Medical Lab purchased 5 cans on 01.03.2003, Ex.P6(a). Southern Lab purchased 2 cans on 06.03.2003, Ex.P6(b).
KV Hospital purchased 2 cans on 12.03.2003, Ex.P6(d). Cosmos Lab purchased 1 can on 02.04.2003, Ex.P6(j). Modern Lab purchased 1 can on 04.04.2003, Ex.P6(k). Neelananda Sarma, running Ansar Hospital, denies having purchased Biosole from RR Distributors.
Vijaya Chandran Nair, running KV Hospital; PW31 Sunil, running Cosmos Lab; PW32 Biji B, assistant at Koshy Dental Clinic and PW33 Dr. Further, Biosole, which contains 100% methyl alcohol was procured by A11 through his firm, RR Distributors. Also, from this testimony, it is seen that the cans of MO15 series [recovered from the residence of A1 by PW76 ], which, as discussed above, stand proved to have been supplied by A10 and A11 to the residence of A1 and the cans of MO31 series, which is the sample of the cans provided by PW27 in the sale of Biosole, are of the same make and mould. Out of the 5 cans tested, ethyl + methyl alcohol was found in 2 cans and methyl alcohol was found in 3 cans.
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These witnesses reveal two pertinent facts: (a) The cans supplied by A11 to A1 are from the same mould of cans that were supplied by PW27 to A11, on purchase of methyl alcohol; and (b) 3 out of 5 cans recovered from the residence of A1 tested positive for methyl alcohol. Where in pursuance of the agreement, the conspirators commit offenses individually or adopt illegal means to do a legal act that has a nexus to the object of the conspiracy, all of them will be liable for such offenses even if some of them have not actively participated in the commission of those offenses.
Further, the offence of criminal conspiracy is of joint responsibility, all conspirators are liable for the acts of each of the crimes which have been committed as a 21 | Criminal Appeal Nos. Hence, the argument on behalf of the present appellants that they did not know A1 and were nowhere connected with the present crime is untenable and cannot be accepted. Devasia ( PW76 ), the Investigating Officer, has deposed that in his presence, PW51 collected materials/samples from land at the southern side of the residence of A11 which was marked as MO49 to MO53. 1134 of 2011 & 567 of 2015 reasoning to the evidence at hand, we disagree with the Trial Court observation that A11’s firm had a license for methyl alcohol and there is no connection between this piece of evidence and the occurrence of the incident.
Thus, it is pertinent to discuss the relevant Sections of the Abkari Act under which these accused persons have been convicted. 1134 of 2011 & 567 of 2015 (5) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872),- (a) where a person is prosecuted for an offense under sub- section (1) or sub-section (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” (Emphasis supplied) 43.
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This Court extensively dealt with Section 57(A)(1) of the Abkari Act in Chandran v. While confirming the conviction of one of the co- accused persons along with the main accused, it was held that the conviction under Section 57(A)(1)(ii) of the Abkari Act is independently affirmed, as he was not only part of the business of mixing methanol but had actively taken part in it. It may not be the conspiracy to mix the noxious substance but the fact of the matter is that in order to succeed in the business which itself was a conspiracy they mixed or allowed to be mixed methanol and used it so freely that ultimately 31 persons lost their lives. – Whoever in contravention of this Act or of any rule or order made under this Act: (a) imports, exports, [transports, transits or possesses] liquor or any intoxicating drug; or xx xx xx (h) bottles any liquor for purposes of sale; or (i) Sells or stores for sales liquor] or any intoxicating drug.” 28 | Criminal Appeal Nos.
Case Title: SAJEEV Vs. STATE OF KERALA
Case Number: Crl.A. No.-001134-001134 / 2011
