Holding

The Supreme Court has plenary jurisdiction under Article 136 (and Article 142) to issue a suo motu rule of enhancement of sentence, and it enhanced the sentences of all appellants to life imprisonment under section 326.

Summary

The case involved ten accused who were charged with conspiracy to supply spurious liquor that caused 70 deaths and permanent loss of sight to 24 persons. The High Court convicted five of them under sections 326, 328 and 272 of the IPC and sentenced them to rigorous imprisonment. The appellants filed appeals under Article 136 of the Constitution, seeking relief and challenging the convictions and the adequacy of the sentences. The Supreme Court examined whether it possessed plenary jurisdiction under Article 136 (and Article 142) to issue a suo motu rule of enhancement of sentence, and whether such enhancement would violate Article 21. It also considered the applicability of sections 326, 328 and 272, the requirement of conspiracy, and the relevance of vicarious liability. The Court held that it has the power to enhance sentences suo motu and that the convictions under sections 326, 328 and 272 were sound, with the adulterated liquor causing grievous hurt. Consequently, it enhanced the sentences of all appellants to life imprisonment under section 326 and dismissed the appeals.

Issues considered

The scope of power of the Supreme Court under Article 136 to issue a suo motu rule of enhancement of sentence
Whether Article 142 provides additional authority to enhance sentences
Whether such enhancement would contravene Article 21 of the Constitution
Whether the convictions under IPC sections 326, 328 and 272 are sustainable
Whether knowledge and intent (voluntary causation) for grievous hurt under section 326 are established
Whether conspiracy among the accused needs direct evidence or can be inferred circumstantially
Whether vicarious liability can be attached to the accused in this context

Legislation cited

Code of Criminal Procedure, 1973s. 172(2), s. 386, s. 401
Constitution of Indias. Article 136, s. Article 142, s. Article 21
Indian Penal Code, 1860s. 107, s. 109, s. 120-B, s. 272, s. 302, s. 320, s. 326, s. 328, s. 39
Kerala Abkari Act

Subjects

suo motusentence enhancementArticle 136Article 142grievous hurtconspiracyvicarious liabilityspurious liquoradulterated liquorlife imprisonmentKerala Abkari Act

Judgment

I

---<

E.K. CHANDRASENAN ETC. ETC. A
v.
STATE OF KERALA

JANUARY 17, 1995

[KULDIP SINGH AND B.L. HANSARIA, JJ.] B

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.
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 con-
sume~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 con-
sumed 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
B
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 avail-
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 E
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 F
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 power of an appellate
1

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
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
pass an order of enhancement if this Court were to be of the view that the
B 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 cir-
cumscribed 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
enhancement could have been issued. [298-B-C]
D
~
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 appel-
lants 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.
B
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
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 impug-
nity 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
the one at hand to award the maximum sentence. [302-A-B]
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
accused has now got assistance of senior counsel who is known for his legal
D 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
in open; by their very nature they are secretly planned, and so, lack of
G 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 B
despicable act undertaken by them. [293-C]

~ 7. Under the Kerala Abkari Act no mixture at all with the liquor as
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.

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
F

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 ac-
quitted 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 enhance-
ment 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 en-
hanced, 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 F
question of his acquittal as well, as mentioned in our notice : so also on
the question whether sentence awarded to him merits enhancement.

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 sub-
sequently. 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 cul-
mitiated in the aforesaid tragedy. For the sake of completeness, it may be
pointed out that though accused 10 withdrew from this partnership some-
D 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 prin-
cipal 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 Nambiar 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. Accord-
ing 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 in-
G 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);
F
(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).
G
10. The aforesaid circumstances do not leave any manner of doubt
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
that this by itself is not sufficient to hold this accused guilty of the offences
B 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 para-
c 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\dtera-
tion 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
B
Taste and kick will be alright.
No. 2 may be used only if necessary
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 = 25 lit. In this proportion pour in a drum, mix and
Water = 50 lit. pack after one hour.

Arrack 125 r Taste, kick etc. will be alright."
= 200 it.
D
14. Though the aforesaid Exhibit speaks about "Sprt" because of
which a contention has been advanced on behalf of the appellants that what
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
y
1

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 quan-
tity 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
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 Investigat-
ing 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 investigat- A
)i- ing 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 omis-
sion 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 •
f;
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
E.K. CHANDRASENAN v. STATE [HAN SAR IA, J.) 293

Criminal Appeals 563-64/90 fil~d by him which are from pages 127 to 132. A
We have gone through these grounds and these are on the question as to
when on the basis of circumstantial evidence a person can be found guilty.
These grounds also say that there can be no vicarious liability in the case
of the present nature. Something has been said about the evidence of PWs
260 and 322, who had done chemical examination. These have nothing to
do with c.riminality or involvement of this accused. Qua accused 3, Shri
B
Anam has only urged that what had been purchased by him was rectified
, sprit and not methyl alcohol. The least said the better about this submis-
sion, -as it is wholly misconceived, which is apparent from what we have
noted above -about recoveries made and their composition as found on
chemical analysis. c
23. We, therefore, conclude by stating that we find 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.

24. What is required to be seen further is whether the conviction of D
• these appellants under sections 326, 328 and 272 is tenable or not. So far
as section 272 is concerned, there is no dispute because adulteration
apparently there was. The learned counsel for the appellants have taken
pains to convince us that no offence under section 326 specially was
committed. Though some submissions had been advanced about non-ap- E
plicability of Section 328 also, it is apparent that if we would be satisfied
about applicability of sections 326, 328 would apply proprio vigore.

25. According to Shri Sanyal, mischief of section 326 would not be
attracted for two reasons. First, the appellants had not caused any ·hurt
"voluntarily". Secondly, the hurt caused, in any case, was not "grievous". F
26. To sustain the first submission, Shri Sanyal refers us to the
definition of "voluntarily" as given in section 39 of the Penal Code which,
inter alia, says that a person is said to cause an effect voluntarily when he
knew or had reason to believe to be likely to cause it. Learned counsel
contends that the accused persons had no knowledge that the effect of the G
consumption of the adulterated liquor would be so injurious as it proved
to be. This submission cannot be accepted because the aforesaid
knowledge can well be imputed for two reasons. First, under the Kerala
Abkari Act no mixture at all with the liquor as supplied to the firm was
permissible. This legal position is not disputed before us. In view of this, H
f

294 SUPREME COURT REPORTS [1995] 1 S.C.R.

A the acceptance-0f the formula given by A-9 in mixing ".spirit" or water with
arrack was itself an illegal act Secondly, in the prc's,ent case what was mixed
was not "spirit" but, as already noted, poisoiluous substance, as is methyl
alcohol. The percentage of methyl found in the liquor supplied by the firm
being what was found to be, it has to be held that the persons responsible
B for mixing had th, knowledge that consumption of the liquor was likely to
cause very serious adverse effects. The contention that all the consumers
were not adversely effected .cannot water down the mens rea required to
bring home the guilt under section 326.

27. The next submission of Shri Sanyal for non-applicability of section
C 326 is that the hurt caused was not grievous. To satisfy us in this regard,
our attention is invited to the definition of "grievous hurt" as given in
section 320, according to which the following kinds of hurt only are
designated as grievous :-

First : Emasaculation.
D
Secondly : Permanent privation of the sight of either eye.

Thirdly: Permanent privation of the hearing of either ear.

Fourthly : Privation of any member or joint.
E
Fifthly : Destruction or permanent impairing of the powers of any
member or joint.

Sixthly : Permanent disfiguration of the head or face.

F Seventhly : Fracture of dislocation of a bone or tooth.

Eighthly : Any hurt which endangers life or which ~auses the
sufferer to be during the space of twenty days in severe bodily pain,
or unable to follow his ordinary pursuits.
G · 28. Shri Sanyal urges that for a hurt to be "grievous" the same must
be one which endangers life. The background of making this submission is
that the High Court took the view that the accused h.ad no knowledge that
the adulteration caused by them would endanger life because of which the
accused persons were not convicted under section 302. According to us,
H the High Court was not correct in arriving at this finding; but as there is
E.K CHANDRASENAN v. STATE (HANSARIA, J.) 295

no appeal by the State against acquittal of the appellants under section 302, A
we would, instead of reversing this finding of the High Court, proceed to .
examine the submission of Shri Sanyal that the brew in question did not
endanger life.

29. This submission does not stand a moment's scrutiny inasmuch as
the requirement of endangering life mentioned in clause Eighthly cannot
B
be read in other clauses. To us, this is so apparent that we really did not
expect a submission of this nature from a senior counsel. Shri Sanyal,
however, persisted and sought to press into service the observation made
by a Full Bench of the Bombay High Court in Govemment of Bombay v.
Abdul Wahab, 1945 Bombay Law Reporter, 990 at page 1003. That obser- c
vation is "The line between culpable homicide not amounting to murder
and grievous hurt is a very thin and subtle one. In the one case the injuries
must be such as are likely to cause death; in the other, the injuries must
be such as endanger life ...... ". This has to be read in the context in whkh
it was made; and the same was that the jury in that case had returned a D
. unanimous verdict of the accused not being guilty of culpable homicide not
amounting to murder, but only of grievous hurt. A contention was advanced
by the State before the High Court that as injuries in qutstion were such
which endangered life, the guilt of culpable homicide not amounting to
murder was brought home. As, for this offence the injuries must be such
as are "likely to cause death", the Full Bench drew attention to the dif- E
ference in between the two. The same cannot, therefore, be read to mean
that for a hurt to be designated as "grievous" the same must be such which
endangers lif~. In the present c_ase, as many as 24 persons having lost their
eye sights permanently, the hurt in question has to be regarded as
"grievous" because of what has ben stated in clause Secondly of section 320.
F
30. The two submissions advanced by Shri Sanyal for non-ap-
plicability of section 326 to the facts of the present case being not tenable,
we uphold the conviction of the five accused before us under section 326.
This being the position, nothing further is required to be stated regarding
the guilt under section 328, because it cannot be urged, as was faintly G
sought to be done, that the present was not a case where the accused
persons had "caused" liquor to be taken by the affected persons. We have
said so as it was the liquor supplied by the firm to the shops and sub-~ops
which was consumed; and so, it has to be held that the consumers were
made to take the liquor supplied by the firm. Other requirements of section H
296 SUPREME COURT REPORTS (1995) 1 S.C.R.

A 328 being present, the conviction un~er section 328 too was rightful.

COMPETENCY TO ISSUE THE RULE OF ENHANCEMENT

31. Having come to the conclusion that the High Court was right in
convicting the appellants under various sections of law noted above, it is
B required to be seen whether the sentences as awarded are appropriate on
the facts of the case. When these appeals were being heard earlier, it was
felt that the sentence as awarded needs to be enhanced. Being of this
tentative view, by an order dated 5.1.1994 a suo motu notice was issued
asking to appellants for show-cause as to why the sentence should not be
C enhanced. Similar notice was issued to A-9. on 10.11.94.
32. As a point has been taken that this Court lacked competence to
issue the notices, the same needs to be examined first; and we propose to
do so in some detail as there does not appear to be any direct decision of
this Court on this point.
D
33. Shri Lalit has mainly addressed us on this aspect. Though at one
stage the learned counsel took a stand that an appellate court seized with
appeal against conViction has no power to suo motu issue rule of enhance-
ment under the provisions of the new Code of Criminal Procedure, as
E distinguished from the provisions which found place under the old Code,
this point was not pursued, after the attention of the learned counsel was
drawn to the judgment rendered in Rengta Majhi v. State of Assam, (1988)
1 Gauhati Law Reports 481, in which one of us (Hansaria, J.) speaking for
a Bench of the Gauhati High Court held that even under the new Code of
Criminal Procedure the power for issuing a suo motu rule of enhancement
F exits. That decision is based on certain judgments of this Court noted
therein. Shri Lalit conceded that in view of what has been stated in Rengta
Majhi's case, the High Courts do have this power even under the new Code
of Criminal Procedure. Learned counsel, however, urges that the same
power would not be available to this Court as this Court is not exercising
any power conferred or available under the Code, but under Article 136,
G which, according, to Shri Lalit, has conferred a limited jurisdiction and is
confined to the examination of legality or otherwise of the judgment under
appeal.

34. Shri Nambiar does not agree with this submission. According to
H him the power conferred on this Court by Article 136 is of wide amplitude
E.K. CHANDRASENAN v. STATE [HANSARIA, J.] 297

and is plenary. Learned counsel also submits that the power of an appellate A
court is normally co-extensive with that of the lower court; and so, if the
High Court in a case of the present nature could have issued the rule of
enhancement, such a power would be available to this Court, when it hears
appeal from the judgment of the High Court. The final contention in this
regard is that, in any case, Article 142 of the Constitution would be B
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.

35. As Shri Lalit has conceded, and rightly, that despite lack of
appeal by the State relating to the quantum of the sentence, a High Court
is competent, while hearing appeal against conviction, to issue rule of C
enhancement even under the new Code, we would have thought that to
deny such a power to this Court, which is higher in hierarchy, would be
incompatible with the well accepted judicial principle, as normally it should
be within the competence of an appellate court to do what the subordinate
court could do. We may mention here that though Shri Lalit took the right D
stand that non-filing of appeal by the State on the question of sentence is
not material, a contention has been advanced in the written submission
filed on 22.11.94 on behalf of A-10 that this Court will not (meaning
cannot) interfere with the question of sentence in the absence of appeal by
the State Government. (See page 21) In support of this submission refer-
ence has been made to two decisions: [1981] 4 SCC 508 and [1976) 2 SCR E
321. A perusal of these decisions shows that they have not dealt with this
aspect at all.

36. The aforesaid view of ours on the question of power of an
appellate court receives some support from what was stated by a Constitu- p
tion Bench in Nagendra Nath Bora v. Commissioner of Hills Division, AIR
(1958) SC 398. It was held there that the powers which were available to
appellate authorities under the Eastern Bengal and Assam Excise Act were
co-extensive with the powers of the primary authorities. In coming to this
conclusion, what was observed by another Constitution Bench in Ebrahim
Aboobaker v. Custodian General of Evacuee Property, AIR (1952) SC 319, G
was also noted. In that case this Court was concerned with the extent of
the power of the tribunal which had been constituted to hear appeals; and
after nothing the terms of constitution of tribunal it was observed that like
all courts of appeal exercising general jurisdiction in civil cases, the tribunal
had been constituted as appellate court in words of widest amplitude and H
298 SUPREME COURT REPORTS [1995) 1 S.C.R.

A the legislature had . not limited its jurisdiction by providing that such
exercise will depend on the existence of any particular state of facts.

37. What was held in the aforesaid two Constitution Bench decisions
would indicate that where an appellate authority is conferred with power,
without hedging the same with any restriction, the same has to be regarded
B as one of widest amplitude and the power of such an appellate authority
would be co-extensive with that of the lower authority. It is apparent that
the appellate power available to this Court under Article 136 is not
circumcribed by any limitation. We are, Jherefore, inclined to think that
being a court to whom appeals lie from the judgments of the High Court,
C it would have the same power which is available to a High Court; and in
exercise of such a power the rule of enhancement could have been issued.

38. We do not, however, propose to uphold the legality of the rule
issued on the aforesaid ground inasmuch as there can be really no dispute
D that the power given by Article 136 is plenary in nature. This has been the
view of this Court for about four decades by now inasmuch as such a vista
was first opened by a Constitution Bench inDurga Shankar Mehta v. Thakur
Raghuraj Singh, [1955) 1 SCR 267, by stating that power given by Article
136 is worded in the widest terms possible and it vests in the Supreme
Court "a plenary jurisdiction" and is in the nature of special or residuary
' E power exercisable outside the purview of the ordinary law in cases the
needs of justice demands interference. Durga Shankar's case was relied by
a Division Bench in Arunachalam v. P.S.R. Sadhanantham, (1979) 2 SCC
297, in which a doubt having been raised about the competence of a private
party, as distinguished from the State, to llivoke jurisdiction under Article·
F 136 against a judgement of acquittal by the High Court, it was observed
that there was no substance in the doubt inasmuch as the appellant power
vested under Article 136 is not to be confused with ordinary appellate
power exercised by appellate courts and the same is plenary.

39. Shri Nambiar has also brought to our notice the Constitution
G Bench decision in Union Carbide v. Union of India, [1991) 4 SCC 584, irr
which it was observed in paragraph 58 that Article 136 vests in this Court
a plenary jurisdiction and the power so conferred can be ex'ercised in spite -+ -'4.,
of the limitations under the specific provisions for appeal contained in the
constitution or other laws, which power could be exercised in cases where
H the needs of justice demand interference. The Constitution Bench further
E.K CHANDRASENAN v. STATE [HANSARIA, J.j 299

stated in paragraph 62 that the plenitude of_ the powers of the apex Court A
is intended to be· co-extensive in each case with the needs of justice of a
given case and to meeting any exigency. The submission of Shri Lalit that
the power conferred by Article 136 is one of limited jurisdiction is, there-
for.e, untenable; it has no merit.

40. What is contained in Article 142 would in any case provide B
sufficient power to this Court to pass an order like one at hand, if this
Court were to be of the view that the same is necessary for doing complete
'r- justice. The contention of Shri Lalit, however, is 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 c
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
upholding the· conviction. The learned counsel urges that Article 21 would
not permit this as that would be a procedure not mandated by law. In .
support of this contention, some assistance is sought to be derived from
what was stated by a 7-Judge Bench in A.R. Antulay v. R.S. Nayak, AIR
D
(1988) SC 1531, in which the direction given by a 5-Judge Bench in its first
judgment in A.R. Antulay v. R.S. Nayak, transferring the cases to High
Court was held to be violative to Article 21 as the larger Bench felt that
because of the order in question the appellant would be tried by a proce-
<lure not mandated by law. What was stated by the 7-Judge Bench has no E
relevance, because if a High Court cari issue a rule of enhancement, as
fairly conceded by Shri Lalit, the power of issuing rule of enhancement
cannot be said to be one not mandated by law.

41. The further submission that power to enhance the sentence has
F
• to be specifically conferred in case of the present nature has no legs to
stand inasmuch as the Code of Criminal Procedure has not conferred such
a power on High Court when it is seized with an appeal against conviction.
This is apparent from Section 386 of the Code, which has been referred by
Shri. Lalit in this context, as the same gets attracted when a High Court
exercises its revisional power under section 401, which power enables a G
High Court, as per Rangta Majhi, to issue a rule of enhancement. In an
> -t appeal from conviction, the appellate court may do any of the following as
per section 386 (b) -

(i) reverse the finding and sentence and acquit or discharge H
"
300 SUPREME COURT REPORTS [1995) 1 S.C.R.

A the accused, or order him to be re-tried by a Court of co~petent
jurisdiction sub-ordinate to such Appellate Court or committed
for trial, or

(ii) alter the finding, maintaining the sentence, or

B (iii) with or without altering the finding, alter the narture or
the extent, or the nature and extent, of the sentence, but not so as
to enhance the same. (Emphasis ours)

So the submission that power to enhance sentence has to be specifically
C conferred before such a rule can be issued cannot be accepted.

42. This being the position, we entertain no doubt that this Court has
power in an appropriate case to issue suo motu rule of enhancement. A
contention has, however, been advanced by Shri Lalit that this Court had
denied such a power to it in some of the decisions. Learned counsel first
D refers in this context to Naresh v. State of U.P., AIR (1981) SC 1385 and
brings to our notice what was stated in paragraph 2. In that case what had
happened was that the High Court altered the conviction of the appellant
from under Section 302 I.P.C. to 304 (Part I). The convicted accused
appealed to this Court, but there was no appeal by the State from aquittal
E under Section 302. It was, therefore, observed in paragraph 2 nothing could
be done about the acquittal under Section 302, though this Court felt
• greatly concerned about the grievous error committed by the High Court.
This judgment liad thus not dealt with the power to enhancement of
sentence.

F 43. The next decision to be pressed in service was rendered in Suraj
Bhan v. Om Prakash, [1976) 1 SCC 886. In that case the injured came to
•
this Court who had approached the High Court in revision for enhance-
ment of the sentence. The High Court had been approached by the accused
also against his conviction and sentence. The High Court reduced the
sentence to the period already undergone against which the State did not
G -prefer any appeal. The injured, however, made an application to the High
Court for certificate which having been refused he obtained special leave
from this Court. On these facts it was observed in para 10 ·that ih the
absence of an appeal against the judgment of the High Court in the
criminal appeal filed by the accused that judgment had become final and
H the sentence could not be enhanced. The passing observation in paragraph
E.K. CHANDRASENAN v. STATE [HANSARIA, J.] 301

11 that nothing could be d9ne as regards the sentence cannot be taken to A
1- be a decision that power of enhancement is not available to this Court.. The
judgment in The State of Mysore v. C.N. Vijendra Rao, [1976] 2 SCR 321,
which is the last to be referred by Shri Lalit to support this contention has
no relevance, as it dealt with a different point altogether.

44. If passing observation has to be borne in mind, what was recently B
stated in Narayanamma (Kum.) v. State of Kamataka, [1994] 5 SCC 77.B, is
more to the point inasmuch as it was stated in paragraph 6 that though the
sentence of 3 years' rigorous imprisonment for ·the crime of rape was
inadequ"l.te, it did not wish to enhance the same "at this point of time".
c
45. On the basis of what has been stated above, we entertain no doubt
that it was within the competence of this Court to have issued the rules of
enhancement. Let it now be examined whether the sentences as awarded·
merit to be enhanced.
D
46. Let it now be seen whether the sentences on the appellants merit
to be enhanced. On this aspect, according to us, there cannot be two
opinions, as the appellants by their nefarious activity, prompted only by lust
for money, sold such a brew which contained even a poisonous substance.
And see : the enormity of consequence : 70 deaths and 24 losing their eye
sights permanently. What can be more shocking to the conscience ? If E
greed for money makes people so unconscionable, so unconcerned with
human happiness and make them behave like devils and to destroy human
lives, they have to be dealt With appropriately, sternly and with a steel heart
'I
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 F
to rise to the occasion becomes great and imperative when it is noted that
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. This has become almost a regular feature and hooch tragedy h~s G
... /' t been taking heavy toll of human lives almost every year in one part or the
other of this vast country. To mention about such recent tragedies, it was
Gujarat which saw this disaster in 1991 in a big way; it fell on Cuttack in
1992 to see loss of more the 100 lives; and very recently this tragic drama
was enacted in Patna, where too about 100 persons became victim. H
I
'y

302 SUPREME COURT REPORTS (1995) 1 S.C.R.

A 47. So, retribution itself demands enhance~ent. Deterrence lends
further support to the demand. Let us all strive to check such atrocious
acts. We would be indeed failing in our duty if we were not to do so. And
the least we can do in the cases at hand is to see that the maximum
sentence visualised by our law makers is awarded to all the appellants
B before us. There can hardly be more appropriate occasion than the one at
hand to award the maximum sentence.

48. So far as the A-9 is concerned, we have on record his written
submission stating that he had been .released from the Central Prison,
Trivandrum on 15th June, 1994 after having undergaone the whole term of
C punishment. He has further stated that he being an old man aged 72 years
and absolutely deaf and being also financially very weak, his punishment
may not be enhanced. Being not represented by any counsel, we thought
it appropriate to provide him legal aid, to which effect we requested the
Supreme Court Legal Aid Society to appoint a counsel for him. Shri R.K.
D Jain, Sr. Advocate appeared accordingly~ We have heard him.

49. We acquainted Shri Jain with what had been stated by us while
issuing enhancement notice and the same being that it would be open to
this accused even to urge that he is entitled to acquittal. Shri Jain submitted
that on the face of dismissal of the Special Leave petition filed by this
E accused, followed by dismissal of the review petition, he is not in a position
to urge that the conviction of this accused was not justified. The learned
-counsel, however, urged that keeping in view the old age of this accused
and his financial weak position, because of which even before the trial court
as well as in the High Court he was given legal aid, we may not enhance
F the sentence. His deafness is also brought to our notice.

50. We have duly considered the aforesaid submissions of Shri Jain.
As to the advance age we would say though this is a mitigating cir-
cumstance, there exists an aggravating circumstance as well the same being
that it was this accused who was the prime mover, as would be apparent
G frol11 the facts noted above and as pointed out by the High Court in para
157 of the judgment. Thus the age factor has been ~eutralised by the active
roll played by this accused in the conspiracy. As regards 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 accused
H inasmuch as his case was adequately taken care of by the other accused
E.K. CHANDRASENAN v. STATE [HANSARIA, f] 303

who were well defended by eminent lawyers. Further, the accused has no_w .A
got assistance of senior counsel like Shri Jain who is known for his legal
acuman. In so far as deafness is concerned, that is not relevant for the
purpose at hand.

· 51. Because of the above, we have not felt inclined to treat this
accused differently from others. Indeed, treating him differently would B
result in a sort of discrimination, which was one of the submissions ad-
vanced by Shri Sanyal appearing for accused 10. This submission does have
merit inasmuch as the roll played by accused 9 was in no way less, really
it was more, than other accused qua whom we are satisfied that a case of
enhancement has been made out. C
52. For the aforesaid reasons, we are of the view that the sentence
of this accused also has to be enhanced. We, therefore, enhance the
sentence of all the appellants and accused 9, named, Ramavarma
Thirumulpad, for their offence under section 326 to imprisonment for life.
In view of this, we are not interfering with sentences awarded to them for D
other offences.

53. For the reason aforesaid, all the appeals stand dismissed and
rules of enhancement stand disposed of by enhancing sentences as ordered
above. The appellants shall surrender the bail bonds and undergo the E
sentence as awarded by us. The trial court is directed to issue warrants to
arrest all the appellants and accused 9, Ramavarama Thirumulpad. The
concerned District Magistrate and Superintendent of Police are directed
to execute the warrnats.

SLP (Cr/.) No. 1198 of 1990. F
In view of the judgment delivered today in Criminal Appeal No. 422
of 1990 and connected appeals, no separate order is required in this
petition and it stands disposed of in terms of the judgment in those appeals,
a copy of which would be transmitted to this petitioner by the Registry G
within a week from today.

R.A. Appeal disposed of.