Supreme Court of India
SOMANversusSTATE OF KERALA
- Citation
- 2012 INSC 616
- Decided
- 14 December 2012
- Disposal
- Dismissed
- Bench
- AFTAB ALAM
Holding
The consequences of an offence, including death, are a relevant aggravating factor for sentencing, and while the High Court was justified in enhancing the sentence, the appropriate term is the statutory minimum of three years rigorous imprisonment.
Summary
The appellant, a retail vendor, was convicted for selling spurious liquor adulterated with methyl alcohol that caused one death and serious illness to many. The trial court sentenced him to two years rigorous imprisonment on each count; the High Court enhanced the term to five years, citing the death as an aggravating factor. The appellant challenged the enhancement, arguing that death should not increase the sentence and that his conviction under section 57A(2)(ii) was unsustainable. The Supreme Court held that the consequences of an offence, including death, are a relevant aggravating factor and may be considered for sentencing, and that the High Court was within its jurisdiction to enhance the sentence. However, applying the principle of parity with a co‑accused whose sentence was reduced, the Court reduced the appellant's term to the statutory minimum of three years rigorous imprisonment, leaving the fines unchanged and cancelling his bail.
Issues considered
- Whether the consequences of a culpable act, such as death, can be taken into account for imposing a heavier sentence under the Kerala Abkari Act.
- Whether the conviction under section 57A(2)(ii) of the Kerala Abkari Act is sustainable.
- Whether the High Court had jurisdiction to enhance the appellant's sentence from two to five years.
Legislation cited
- Indian Penal Code, 1860s. 201
- Kerala Abkari Acts. 55(a), s. 55(i), s. 57A(1)(i), s. 57A(1)(ii), s. 57A(1)(iii), s. 57A(2)(i), s. 57A(2)(ii), s. 57A(2)(iii), s. 58, s. 8
Subjects
sentencingaggravating factorconsequences of offencespurious liquorKerala Abkari Actproportionalitydeterrencemethanol poisoninglife imprisonment reduction
Judgment
[2012] 11 S.C.R. 1155
SOMAN A
v
STATE OF KERALA
(Criminal Appeal Nos.1533-1534 of 2005)
DECEMBER 14, 2012.
B
[AFTAB ALAM AND RANJANA PRAKASH DESAI, JJ.]
[KERALA] ABKARI ACT:
ss.55(a) and (i), 57A(2)(ii) and 58 - Sale by accused, a c
retail vendor, of spurious liquor adulterated with methyl
alcohol - Death of one person while others developed serious
sickness - High Court taking into account the consequences
of the culpable act, enhanced the sentence from two years RI,
as awarded by trial court, to 5 years RI - Held: High Court 0
was fully justified in taking info account the death of a person,
as a result of consuming the illicit liquor, sold by the appellant
as a ground for enhancing his sentence from two years to five
years RI - There was absolutely no illegality or lack of
jurisdiction in the order of High Court - However, in view of E
the fact that in the case of the supplier co-accused, sentence
of life imprisonment has been reduced to 10 years RI,
sentence of appellant also reduced to 3 years RI being
minimum u/s.57A(2)(ii) -.Sentence I Sentencing.
SENTENCE I SENTENCING: F
Awarding of appropriate punishment - Taking into
consideration the consequences of culpable act and its
impact on other people - Principles from judicial
pronouncements, culled out.
G
The appellant, a retail vendor, was one of the
accused in the case of supply of spurious liquor,
contaminated with methyl alcohol, consumption whereof
1155 H
1156 SUPREME COURT REPORTS [2012] 11 S.C.R.
A took the lives of 31 people and more than 500 developed
serious sickness out of which six lost their vision
completely. The medical evidence and the chemical
analysis established that by consuming the liquor
adulterated with methyl alcohol, sold by the appellant,
B one person died and several others became seriously
sick. The trial court convicted the appellant u/ss 55(a) and
(i), 57A and 58 of the [Kerala] Abkari Act and sentenced
him to undergo rigorous imprisonment for two years on
each count and a fine of Rs. 1 lakh on ach count except
c u/s 57A. He was also convicted u/s 201 IPC and
sentenced to rigorous imprisonment for six months and
fine of Rs.5,000/- . The accused as well as the State filed
appeals. The High Court dismissed the appeals of the
accused including the one filed by the appellant, and
0 dealing with question of sentence on the basis of the
State's appeal, enhanced appellant's sentence of
imprisonment from 2 years to 5 years.
In the instant appeal filed by the accused, it was
contended for the appellant that the death of a person as
E a result of sale of spurious liquor could not have been a
ground for imposition of a heavier sentence; and that his
conviction was not maintainable u/s.57(2)(ii).
The question before the Court was: whether or not
F the consequences of a culpable act and its impact on
other people can be a relevant consideration for imposing
a heavier punishment, of course, within the limits fixed
by the law.
Dismissing the appeals, the Court
G
HELD: 1.1. Punishment should acknowledge the
sanctity of human life. Giving punishment to the
wrongdoer is at the heart of the criminal justice delivery,
but in our country, it is the weakest part of the
H administration of criminal justice. There are no legislative
SOMAN v. STATE OF KERALA 1157
or judicially laid down guidelines to assist the trial court A
in meting out the just punishment to the accused facing
trial before it after he is held guilty of the charges.
Nonetheless, if one goes through the decisions of this
Court carefully, it would appear that this Court takes into
account a combination of d~fferent factors while B
exercising discretion in sentencing, that is
proportionality, deterrence, rehabilitation etc. [para 12-13
and 21] [1169-C-D-H; 1170-A; 1174-C-D]
State of Punjab v. Prem Sagar 2008 (8) SCR 574 = 2008
(7) SCC 550; Ramashraya Chakravarti v. State of Madhya C
Pradesh 1976 (2) SCR 703=1976 (1) SCC 281, Dhananjoy
Chatterjee alias Dhana v. State of WB. 1994 (1) SCR 37 =
1994 (2) SCC 220; State of Madhya Pradesh v. Ghanshyam
Singh 2003 (3) Suppl. SCR 618 = 2003 (8) SCC 13, State
of Kamataka v. Puttaraja 2003 (6) Suppl. SCR 274 = 2004 D
(1) SCC 475, Union of India v. Ku/deep Singh 2003 (6)
Suppl. SCR 526 = 2004 (2) SCC 590, Shailesh Jasvantbhai
and another v. State of Gujarat and others 2006 (1) SCR 477
= 2006 (2) SCC 359; Siddarama and others v. State of
Kamataka 2006 (6) Suppl. SCR 276 = 2006 (10) SCC 673, E
State of Madhya Pradesh v. Babula/ 2007 (12) SCR 795
=2008 (1) SCC 234; Santosh Kumar Satishbhushan Bariyar
v. State of Maharashtra 2009 (9) SCR 90 = 2009 (6) SCC 498
- referred to
F
S Nyathi and The State [2005] ZASCA 134 (23 May
2005) - referred to.
1.2. In a proportionality analysis, it is necessary to
assess the seriousness of an offence in order to
determine the commensurate pl!nishment for the G
offender. The seriousness of an offence depends, apart
from other things, also upon its harmfulness. To
understand the relevance of consequences of criminal
conduct from a sentencing standpoint, one must
examine: (1) whether such consequences enhanced the H
1158 SUPREME COURT REPORTS [2012) 11 S.C.R.
A harmfulness of the offence; and (2) whether they are an
aggravating factor that need to be taken into account by
the courts while deciding on the sentence. [para 14]
[1170-C-F]
Sentencing and Criminal Justice by Andrew Ashworth,
B
5th Edition, Cambridge University Press, 2010 -
referred to
1.3. From the judicial pronouncements, one may
conclude that:
c
i. Courts ought to base sentencing decisions on
various different rationales - most prominent
amongst which would be proportionality and
deterrence.
D ii. The question of consequences of criminal
action can be relevant from both:
proportionality and deterrence standpoint.
iii. Insofar as proportionality is concerned, the
E sentence must be commensurate with the
seriousness or gravity of the offence. -
iv. One of the factors relevant for judging
seriousness of the offence is the
consequences resulting from it.
F
v. Unintended consequences/harm may still be
properly attributed to the offender if they were
reasonably foreseeable. In case of illicit and
underground manufacture of liquor, the ,
G chances of toxicity are so high that not only
its manufacturer but the distributor and the
retail vendor would know its likely risks to the
consumer. Hence, even though any harm to
the consumer might not be directly intended,
H some aggravated culpability must attach if the
SOMAN v. STATE OF KERALA 1159
consumer suffers some grievous hurt or dies A
as result of consuming the spurious liquor.
[para 22) [117 4-D-H; 1175-A·B]
1.4. In the inst~nt case, it may be seen that all the
three provisions as contained u/s. 55, 57A and 58 of the
8
[Kerala) Abkari Act, provide for long periods of
imprisonment, leaving it to the discretion of the court to
fix the exact sentence having regard to the facts and
circumstances of.a particular case. In regard to taking into
consideration the consequences of an offence for
determining the appropriate punishment, a complete C
answer is to be found in s. 57A itself. Under s.57A,
adulteration of liquor or omission to take reasonable
precaution to prevent mixing of any noxious substance
with any liquor are made offences. And then different
sentences are provided in clauses (i), (ii) and (iii), D
depending upon the different consequences resulting
from the offence. In case of grievous hurt, the minimum
sentence is two years' imprisonment, in case of death,
three years and, in any other case, one year's
imprisonment. There is no reason why. the same basis E
may not be adopted for sentencing under the other
provisions of the Act, e.g., ss. 8, 55 (a) and (i) and 58. [para
10-11) [1168-D; 1169-A-C]
1.5. Therefore, this Court is clearly of the view, that F
the High Court was fully justified in taking into account
the death of a person, as a result of consuming the illicit
liquor, sold by the appellant as a ground for enhancing
his sentence from two years to five years rigorous
imprisonment. There was absolutely no illegality or lack G
of jurisdiction in the order of the High Court. [para 23)
[1175-B·D]
1.6. No good reason has been given to hold that the
appellant's conviction u/s. 57 (2) (ii) is not sustainable.
[Para 11] [1168-G-H] H
1160 SUPREME COURT REPORTS [2012] 11 S.C.R.
A 1.7. In the case of a co-accused, namely, accused no.
25, who was the supplier of the illicit liquor to the
appellant, this Court, while maintaining the conviction of
accused no.25 under the various provisions as recorded
by the trial court and affirmed by the High Court, deemed
B it fit to reduce his sentence of life term u/s 57A(2)(ii) of the
Act to ten years rigorous imprisonment*. It will, therefore,
not be fair not to give the same concession to the
appellant, who was the last and weakest link in the chain.
Accordingly, his sentence from five years rigorous
c imprisonment is reduced to three years rigorous
imprisonment, being the minimum u/ss 57A (2) (ii) of the
Act. The fines imposed by the courts below for the
different offences remain unaltered. [para 23] [1175-B-E·
G-H; 1176-A·C]
D *Chandran v. State of Kera/a 2011 (8 ) SCR 273 =2011
(5 ) sec 161 • referred to
Case Law Reference:
2011 (8) SCR273 referred to para 23
E
2008 (8) SCR574 referred to para 13
1976 (2) SCR 703 referred to para 13
1994 (1) SCR 37 referred to para 13
F 2003 (3) Suppl. SCR 618 referred to para 13
2003 (6) Suppl. SCR274 referred to para 13
2003 (6) Suppl. SCR526 referred to para 13
G 2006 (1) SCR 477 referred to para 13
2006 (6) Suppl. SCR 276 referred to para 13
2007 (12) SCR 795 referred to para 13
2009 (9) SCR 90 referred to para 13
H
SOMAN v. STATE OF KERALA 1161
[2005] ZASCA 134 referred to para 20 A
2011 (8) SCR 273 referred to para 23
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 1533-1534 of 2005.
From the Judgment & Order dated 08.10.2004 of the High B
Court of Kerala at Ernakulam in Criminal Appeal No. 711 of
2002 (C) and Criminal Appeal No. 1285 of 2004.
T.V. George, Dushyant Kumar, Maurya Sarkar for the
Appellant. C
M.T. George for the Respondent.
The Judgment of the Court was delivered by
AFTAB ALAM, J. 1. The short question that arises for
consideration in these appeals is whether or not the social D
consequences of a culpable act and its impact on other people
can be a relevant consideration for giving a heavier punishment,
of course, within the limits fixed by the law. The facts and
circumstances in which the question arises may be briefly
stated thus. In October 2000, 31 people died, and more than E
500 developed serious sicknesses, of which six lost their vision
completely as a result of consuming spurious liquor,
contaminated with methyl alcohol at different places in Kellam
district, Kerala. Cases were initially registered at different police
stations, but, later on, all the cases were consolidated into a F
single case and on the basis of investigations made by the
police, 48 accused in all were put on trial. The accused were·
broadly classified into three groups: one, the maker and
manufacturers of the spurious liquor; two, the distributors and
suppliers of the killer brew; and third the retail vendors who sold G
the stuff to the consumers. The appellant who was accused
No.41 before the trial court fell in the third category. The
prosecution case, insofar as the appellant is concerned, was
that he was engaged in the sale of liquor and he received his
supplies from accused Nos. 25 & 26. H
1162 SUPREME COURT REPORTS [2012] 11 S.C.R.
A · 2. Before the trial court the prosecution was able to
successfully establish that on October 21, 2000, two days prior
to the tragic occurrence, fresh supply was brought to the
appellant on a motor cycle. The arrack received by him on that
date was sold to various persons and on consuming it, they
B became very ill and one of them, namely, Yohannan died. The
post-mortem report of Yohannan showed that he died of
methanol poisoning. At the time of post-mortem his blood and
urine samples were taken for chemical analysis and the report
(Ext.P1059) showed presence of methyl alcohol in the samples.
C Further, on the basis of a disclosure statement made by the
appellant [Ext.P413(a)J a plastic can (M.0.98) containing the
residue of the spirit sold by him was recovered and seized from
his shop. On chemical analysis, the contents of the can were
found adulterated with methyl alcohol. On the basis of the
D evidences led before it, the trial court found and held, and quite
rightly, that the spirit sold by the appellant that caused the death
of Yohannan and sickness to several other persons was
spurious, being contaminated with highly injurious and
poisonous substances and held him guilty of Sections 55(a) &
E (i), 57A and 58 of the (Kerala) Abkari Act (hereinafter 'the Act').
The trial court sentenced the appellant to undergo rigorous
imprisonment for two years on each count and a fine of Rs.One
Lakh on each count except under Section 57A and in default
to undergo simple imprisonment for one year on each count.
F The trial court also found the appellant guilty under Section 201
of the Penal Code and on that count sentenced him to rigorous
imprisonment for six months and a fine of Rs.5,000/- with the
default sentence of simple imprisonment for one month. The trial
court directed that the sentences of imprisonment shall run
G concurrently.
3. Against the judgment and order passed by the trial court,
appeals were preferred both by the accused, including the
present appellant and the State. The State in its appeal
H
SOMAN v. STATE OF KERALA [AFTAB ALAM, J.] 1163
questioned the acquittal of some of the accused and also A
demanded enhancement of sentence in respect of those who
were convicted and sentenced by the trial court. The High Court
by its judgment and order dated October 8, 2004 dismissed
the appeals of the accused, including the one by the appellant.
However, dealing with the question of sentence on the basis B
of the State's appeal deemed it fit to enhance the appellant's
sentence of imprisonment from two years to five years. In this
connection, the High Court made the following observations:-
•.... Evidence adduced in this case clearly establishes that C
A 41 sold illicit arrack on 21.10.2000 and 22.10.2000 and
Yohannan died due to methanol poisoning of taking liquor
from him and several persons were sustained injuries also.
His conviction for offences under Section 55(a) and (i) and
under Section 58 are confirmed. Even though he was only
a small retail seller, who got liquor from A 25, one person D
died and several persons were injured. But, he is punished
only for two years under se·ction 55(a) and (i) and
punishment should commensurate with the offence. Hence,
his conviction and sentence under Section 57A (2) (ii) is
confirmed. Under Section 55 maximum punishment is ten E
years. We are of the opinion that the sentence imposed
on him should be enhanced. He is sentenced to undergo
rigorous imprisonment for five years (instead of two years
as imposed by the Sessions Judge) and to pay a fine of
Rs. one Lakh in default to undergo simple imprisonment F
for six months on each count under Sections 55(a) and (i).
His conviction and sentence for other offence are also
confirmed. Sentences shall run concurrently."
4. Against the judgment and order passed by the High G
Court, the accused came to this Court in different batches. In
some Special Leave Petitions filed by different accused leave
was granted but the Special Leave Petition Nos.237-238 filed
by one Sudhakaran @ Sudha and the present appellant was
initially dismissed by order dated January 24, 2005. Later on, H
1164 SUPREME COURT REPORTS [2012] 11 S.C.R.
A the appellant filed Review Petition (Crl.) Nos.613-614 of 2005,
which were allowed by order dated November 14, 2005 and
leave was granted. By the same order, the appellant was also
enlarged on bail.
B 5. Learned counsel appearing for the appellant did not at
all question the conviction of the appellant under the different
provisions of the Act. He has, however, vehemently contended
that the High Court was completely wrong in enhancing the
appellant's sentence and imprisonment from two years to five
years. Learned counsel submitted that the only ground on which
C the High Court has enhanced the appellant's sentence was that
the spirit sold by the appellant led to the death of one person.
According to the learned counsel, this could not have been the
valid ground for giving a heavier punishment.
D. 6. Before considering this submission made by the
learned counsel, it will be apposite to take a look at the relevant
provisions of the Act, including those under which the appellant
has been held guilty. Section 8 of the Act prohibits manufacture,
import, export, transport, transit, possession, storage, sales,
E etc., of arrack and it is in the following terms:-
"8.(1) Prohil>'llion of manufacture, import, export, transport,
transit, p~session, storage, sales etc., of arrack.- No
person shall manufacture, import, export, transport, [without .
permit transit], possess, store, distribute, bottle or sell
F arrack in any form.
(2) If any person contravenes any provisions of sub-section
(1), he shall be punishable with imprisonment for a term
which may extend to ten years and with fine which shall not
G be less than rupees one lakh."
7. Section 55 of the Act insofar as relevant for the present,
is as under:-
"55. For illegal import, etc.-Whoever in contravention of this
H
SOMAN v. STATE OF KERALA [AFTAB ALAM, J.] 1165
Act or of any rule or order made under this Act: A
(a)imports, exports, [transports, transits or possesses]
liquor or any intoxicating drug; or
(b) xxxx
B
(c) xxxx
(d) xxxx
(e) xxxx; or
c
(f) xxxx; or
(g) xxxx; or
(h) bottles any liquor for purposes of sale; or
D
(i) [sells or stores for sale liquor] or any intoxicating
drug;][shall be punishable]
(1) for any offence, other than an offence falling under
clause (d) or clause (e), with imprisonment for a term which E
may extend to [ten years and with fine which shall not be
less than rupees one lakh and]
(2) for an offence falling under clause (d) or clause (e), with
imprisonment for a term which may extend to one year, or
with fine which may extend to ten thousand rupees, or with F
both."
8. Section 57A reads as under:-
"57A. For adulteration of liquor or intoxicating drug with G
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-
H
1166 SUPREME COURT REPORTS [2012] 11 S.C.R.
A (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;
B
(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;
c
(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.
D
Explanation.- For the purpose of this Section and
Section 578, the expression "grievous hurt'' shall have the
same meaning as in Section 320 of the Indian Penal
Code, 1860 (Central Act 45 of 1860).
E (2) Whoever omits to take reasonable precautions
to prevent the mixing of 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,-
F
(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 lie, and with fine which may extend to fifty
G 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
H fifty thousand rupees;
SOMAN v. STATE OF KERALA [AFTAB ALAM, J.] 1167
(iii) in any other case, with imprisonment for a term which A
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 B
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 C
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 sub-
section (1) or sub-section (3) shall, if in custody, be D
released on bail or on his own bond, unless-
(a) the prosecution has been· given an opportunity to
oppose the application for such release, and
(b} where the prosecution opposes the application, the E
court is satisfied that there are reasonable grounds for
believing that he is not guilty of such offence.
(5) Notwithstanding anything contained in the Indian
Evidence Act, 1872 (1 of 1872)- F
(a) where a person is prosecuted for an offence 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 G
with any liquor or intoxicating drug shall be on him;
(b) where a person is prosecuted for an offence under sub-
section (3) for being in possession of any liquor or
H
1168 SUPREME COURT REPORTS [2012] 11 S.C.R.
A intoxicating drug in which any substance referred to in sub-
section (1) is mixed, the burden of proving that he did not
know that such substance was mixed with such liquor or
intoxicating drug shall be on him"
9. Section 58 reads as under:-
B
"58. For possession of illicit liquor.- Whoever, without lawful
authority, has in his possession any quantity of liquor or of
any intoxicating drug, knowing the same to have been
unlawfully imported, transported or manufactured, or
c knowing [the duty, tax or rental payable under this Act] not
to have been paid therefor, [shall be punishable with
imprisonment for a term which may extend to ten years and
with fine which shall not be less than rupees one lakh]."
0 10. It may be seen that all the three provisions as contained
under Sections 55, 57A and 58 provide for long periods of
imprisonment, leaving it to the discretion of the court to fix the
exact sentence having regard to the facts and circumstances
of a particular case. Section 57A which is one of the Sections
E under which the appellant is convicted provides for a minimum
sentence of three years' imprisonment. When it was pointed
out to the learned counsel that under the relevant provisions the
sentence of imprisonment could vary from one day to ten years
(under Section 55) and from three years to a life term (under
Section 57A(2)(ii)) and from one day to ten years under Section
F 58, he replied that the appellant's conviction was not
maintainable under Section 57A(2)(ii) and so far as Sections
55 and 58 are concerned, the relevant considerations for giving
a life sentence of imprisonment would be the amount of spirit
stored for sale. According to him, the death of a person as a
G result of sale of the spurious liquor could not have been a
ground for imposition of a heavier sentence.
11. We find no substance in the submissions. First, no
good reason is given to hold that the appellant's conviction
H under Section 57 (2) (ii) is not sustainable; secondly, in regard
SOMAN v. STATE OF KERALA [AFTAB ALAM, J.] 1169
to the main issue in the case, i.e., whether the consequences A
of an offence can be taken into consideration for determining
the appropriate punishment, a complete answer is to be found
in Section 57A itself. Under Section 57A, the adulteration of
liquor or the omission to take reasonable precaution to prevent
the mixing of any noxious substance with any liquor are made B
offences. And then different sentences are provided in clauses
(i), (ii) and (iii), depending upon the different consequences
resulting from the offence. In case of grievous hurt, the minimum
sentence is two years' imprisonment, in case of death, three
years and in any other case, one year's imprisonment. There c
is no reason why the same basis may not be adopted for
sentencing under the other provisions of the Act, e.g., Sections
8, 55 (a) & (i) and 58.
12. Giving punishment to the wrongdoer is at the heart of
the criminal justice delivery, but in our country, it is the weakest D
part of the administration of criminal justice. There are no
legislative or judicially laid down guidelines to assist the trial
court in meting out the just punishment to the accused facing
trial before it after he is held guilty of the charges. In State of
Punjab v. Prem Sagar1 this Court acknowledged as much and E
observed as under -
"2. In our judicial system, we have not been able to develop
legal principles as regards sentencing. The superior courts
except making observations with regard to the purport and F
object for which punishment is imposed upon an offender,
have net issued any guidelines. Other developed countries
have done so. At some quarters, serious concerns have
been expressed in this behalf. Some committees as for
example Madhava Menon Committee and Malimath G
Committee have advocated introduction of sentencing
guidelines."
13. Nonetheless, if one goes through the decisions of this
1. c2ooai 1 sec sso. H
1170 SUPREME COURT REPORTS [2012] 11 S.C.R.
A Court carefully, it would appear that this Court takes into
account a combination of different factors while exercising
discretion in sentencing, that is proportionality, deterrence,
rehabilitation etc. (See: Ramashraya Chakravarti v. State of
Madhya Pradesh 2 , Dhananjoy Chatterjee alias Dhana v.
B State of W.B. 3 , State of Madhya Pradesh v. Ghanshyam
Singh4, State of Kamataka v. Puttaraja 5 , Union of India v.
Ku/deep Singh6 , Shai/esh Jasvantbhai and another v. State
of Gujarat and others1 , Siddarama and others v. State of
Kamataka 8 , State of Madhya Pradesh v. Babu/a/9, Santosh
C Kumar Satishbhushan Bariyar v. State of Maharashtra 10)
14. In a proportionality analysis, it is necessary to assess
the seriousness of an offence in order to determine the
commensurate punishment for the offender. The seriousness
of an offence depends, apart from other things, also upon its
D harmfulness. The question is whether the consequences of the
offence can be taken as the measure for determining its
harmfulness? In addition, quite apart from the seriousness of
the offence, can the consequences of an offence be a
legitimate aggravating (as opposed to mitigating) factor while
E awarding a sentence. Thus, to understand the relevance of
consequences of criminal conduct from a Sentencing
standpoint, one must examine: (1) whether such consequences
enhanced the harmfulness of the offence; and (2) whether they
are an aggravating factor that need to be taken into account
F by the courts while deciding on the sentence.
2. (2008) 1 sec 550.
3. (1976) 1 sec 2s1.
4. (2003) 8 sec 13.
G 5. (2004) 1 sec 475.
6. (2004) 1 sec 475.
7. (2006) 2 sec 359.
8. (2006) 1o sec 673.
9. (2008) 1 sec 234.
H 10. c2000i 6 sec 498.
SOMAN v. STATE OF KERALA [AFTAB ALAM, J.] 1171
15. In Sentencing and Criminal Justice, 5th Edition, A
Cambridge University Press, 2010, Andrew Ashworth cites the
four main stages in the process of assessing the seriousness
of an offence, as identified in a previous work by Andrew Von
Hirsch and Nils Jareborg. (See Pages 108 - 112)
B
1. Determining the interest that is violated (i.e.
physical integrity, material support, freedom from
humiliation or privacy/autonomy)
2. Quantification of the effect on the victim's living
standard. C
3. Culpability of the offender.
4. Remoteness of the actual harm.
16. Ashworth then examines various specific offences to D
ascertain how seriousness is typically gauged. The most
relevant example is that of drug trafficking, where the author
notes the problem that the offence lies fairly remote from
causing people's deaths. Ashworth further notes that harsh
sentences for drug trafficking offences is justified more by E
deterrent rationales than proportionality concerns, although even
the deterrent rationales are beset with problems. (See Pages
128 - 130)
17. Here, it needs to be noted that one major difference F
between production/sale of spurious liquor and drug trafficking
is that in the case of spurious liquor, the consumer does not
know what he is consuming, whereas in the case of drugs, the
consumer, at least in the initial stages, knowingly and voluntarily
chooses to consume the drugs.
G
18. Ashworth also examines the impact of unintended
consequences on sentencing. He notes that there is a tendency
to take those into account in manslaughter and for causing
death by bad driving. The extent to which unintended
consequences may be taken into account would depend, for H
1172 SUPREME COURT REPORTS [2012] 11 S.C.R.
A instance, on the extent to which the offender was put on notice
of the risk of death. Thus, where it is known that driving
dangerously or under the influence of alcohol creates risk for
the safety of others, there would be a greater emphasis on
resulting death while determining the sentence. (See Pages
8 153 - 154).
19. Arguably, one might surmise that manufacturers of
spurious liquor must be able to reasonably foresee that
consumption of spurious liquor would affect the health (and
possibly life) of others. Thus, there may be some basis for
C taking into account the unintended consequences while
determining sentence. The remoteness of harm would be a
factor when a person, by consuming drugs, dies after a period
of sustained use. Where a person consuming spurious liquor
dies as a result of such consumption, the harm is much more
D direct and immediate, and remoteness of harm may not be as
much of an issue.
20. Germane to the issue under consideration is a decision
of the Supreme Court of Appeal of South Africa in S Nyathi
E and The State11 and we may usefully refer to it. The case
relates to the death of six people resulting from the road
accident in which a sedan driven by the appellant in that case
collided with a minibus taxi. The impact caused the minibus to
overturn, killing six of its occupants. Some other passengers
F were injured.
The appellant was convicted of culpable homicide.
The court found that the collision between the two vehicles
had taken place on a blind rise where a double barrier line
G prohibited overtaking by vehicles coming from either direction.
It was the admitted position at the trial that forward visibility was
restricted. The court observed that overtaking on a barrier line,
and specially on a double barrier line, where a motorist should
H 11. (2005] ZASCA 134 (23 May 2005)
SOMAN v. STATE OF KERALA [AFTAB ALAM, J.] 1173
realise that his inability to observe approaching traffic is A
compounded by the inability of the traffic in the opposite
direction to see him is probably the most inexcusably
dangerous thing a road user can do. Coming to the question
of sentence, the Court observed:
B
"[13] Road accidents with calamitous consequences are
frequently caused by inadvertence, often momentary.
[Dube v. S [2002] JOL (Judgments on Line) 9645 (T), a
case mentioned by the regional magistrate, is an example.
The appellant was the driver of a bus involved in an
accident on a mountain pass which killed twenty eight C
passengers. On appeal a suspended sentence of two
years' imprisonment was substituted for one of six years'
imprisonment imposed by the trial court on the footing that
the appellant's negligence had been slight.] Overtaking on
a double barrier line is not inadvertence. It is a conscious D
decision to execute a manoeuvre that involves taking a
fearfully high risk.
Referring then to some earlier decisions of the Court in
paragraph 14 of the judgment it observed as under:- E
"[14] In S v. Nxuma/o 1982 (3) SA 856 (SCA) the court
approved a passage from R.v.Bamardo 1960 (3) SA 552
(A) (at 5570-E) where the court held that although no
greater moral blameworthiness arises from the fact
that a negligent act caused death, the punishment F
should acknowledge the sanctity of human life. It
affirmed the dicta of Miller J who twenty years earlier in S
v Ngcobo 1962 (2) SA 333 (N) at 336H-337B had set out
the approach to road death cases. At 861 H Corbett JA
said: G
'It seems to me that in determining an appropriate
sentence in such cases the basic criterion to which the
Court must have regard is the degree of culpability or
blameworthiness exhibited by the accused in committing H
1174 SUPREME COURT REPORTS (2012] 11 S.C.R.
A the negligent act. Relevant to such culpability or
blameworthiness would be the extent of the accused's
deviation from the norm of reasonable conduct in the
circumstances and the foreseeability of the consequences
of the accused's negligence. At the same time the actual
B consequences of the accused's negligence cannot be
disregarded. If they have been serious and
particularly if the accused's negligence has resulted
in serious injury to others or loss of life, such
consequences will almost inevitably constitute an
c aggravating factor, warranting a more severe
sentence than might otherwise have been imposed.'
(Emphasis Added)
21. Punishment should acknowledge the sanctity of human
D life. We fully agree.
22. From the above, one may conclude that:
1. Courts ought to base sentencing decisions on
various different rationales - most prominent
E amongst which would be proportionality and
deterrence.
2. The question of consequences of criminal action
can be relevant from both a proportionality and
F deterrence standpoint.
3. Insofar as proportionality is concerned, the
sentence must be commensurate with the
seriousness or gravity of the offence.
G 4. One of the factors relevant for judging seriousness
of the offence is the consequences resulting from
it.
5. Unintended consequences/harm may still be
properly attributed to the offender if they were
H
SOMAN v. STATE OF KERALA [AFTAB ALAM, J.] 1175
reasonably foreseeable. In c:ase of illicit and A
underground manufacture of liquor, the chances of
toxicity are so high that not only its manufacturer but
the distributor and the retail vendor would know its
likely risks to the consumer. Hence, even though
any harm to the consumer might not be directly B
intended, some aggravated culpability must attach
if the consumer suffers some grievous hurt or dies
as result of consuming the spurious liquor.
23. In light of the discussion made above, we are clearly
of the view, that the High Court was fully justified in taking into C
account the death of a person, as a result of consuming the
illicit liquor, sold by the appellant as a ground for enhancing his
sentence from two years to five years rigorous imprisonment.
There was absolutely no illegality or lack of jurisdiction in the
order of the High Court and we would have unhesitatingly D
upheld the order of the High Court but for another reason. It is
noted above that a number of appeals against the judgment and
order by the High Court came before this Court at the instance
of a number of accused. One of them happened to be accused
No.25 who was the supplier of the illicit liquor to the appellant E
and from him the appellant had received the fatal supply that
led to the death of Yohannan and sickness of a number of
others. The trial court had convicted accused no.25 under
Section 57 A(2)(ii) of the Act and sentenced him to
imprisonment for life and a fine of Rs. fifty thousand with the F
default sentence of simple imprisonment for six months. He was
convicted and sentenced to undergo rigorous imprisonment for
five years and a fine of rupees fifty thousand with the default
sentence of imprisonment for six months under Section
57A(2)(i) of the Act. He was also convicted under Sections G
57A(2)(iii), 55(a)(i) and 58 of the Act. The High Court had
maintained the conviction and sentence passed by the trial
court. This Court, however, by its judgment and order dated
April 4, 2011 in Chandran v. State of Kera/a 12, maintained the
12. c2011) s sec 1s1. H
1176 SUPREME COURT REPORTS [2012) 11 S.C.R.
A conviction of accused no.25 under the various provisions as
recorded by the trial court and affirmed by the High Court.
However, it accepted the plea made on behalf of accused
no.25 to reduce his sentence from a life term to ten years
imprisonment. Since this Court has deemed fit to reduce the
B sentence given to accused no.25 from a life term to ten years
rigorous imprisonment, we feel that it will not be fair not to give
the same concession to the appellant (accused no.41) who was
the last and weakest link in the chain. We, accordingly, reduce
his sentence from five years rigorous imprisonment to three
C years rigorous imprisonment, being the minimum under Section
57A (2) (ii) of the Act. The fines imposed by the courts below
for the different offences remain unaltered.
24. In the result, the appeals are dismissed, subject to
modification and reduction in sentence, as noted above.
D
25. The bail bonds of the appellant are cancelled. He will
be taken into custody to serve his remainder sentence.
R.P. Appeals dismissed.
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