LexJOSEPH KURIEN PHILIP JOSE versus STATE OF KERALA
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A JOSEPH KURIEN PHILIP JOSE Y. STATE OF KERALA OCTOBER 4, 1994 B [M.M. PUNCHHI AND K. JA YACHANDRA REDDY, JJ.] Indian Penal Code, 1860, S. 27~Adulteration of drink for sal~Ap pellant in control of depot which sold adulterated arrack causing death-Held, the offence stood committed on the very day appellant found in possession C of adulterated arrack. Kerala Abkari Act, SS, 55( a), (i) and 57-fllegal possession and sale of adulterated arrack-Appellant not licensee but in control of depot that sold adulterated arrack-Held, mere possession of liquor by the appellant sufficient D to attract offence. Indian Penal Code 1860, S. 328--Causing hurt by poison-Trial CouTt holding accused not aware that arrack being sold likely to cause death and ruling out offence under Ss. 302 and 304-Trial CouTt neveTtheless convicting accused for causing huTt by poison-Held, in the absence of mens rea or E evidence that accused administered poisoned liquor to the deceased offence not made out. Indian Penal Code 186G, S. 1~betment-Trial CouTt convicting and sentencing co-accused for substantive offence under Ss. 272 and 328 F fPC-High Court acquitting co-accused of substantive offence but convicting and sentencing him for abetment-Held, when. direct involvemen.t not estab- lished accused cannot without a fonnal charge be held guilty of abet- ment-Criminal triaL Arising out of the Punalur Liquor Tragedy in Kerala in which certain G persons died after consuming poisonous adulterated arrack, the first Appellant who was in control of the Punalur arrack depot and the second appellant who was its manager were convicted and sentenced by the Trial Court for offences under Ss. 272 and 328 IPC for adulteration and causing burt by poison respectively. The Trial Court held that the appellants were H not aware that the arrack they sold was likely to cause death and accord- U2 JOSEPH KURIEN v. STATE 123 ingly ruled out the offence of causing death punishable under S302 or even A S304 IPC. The appellants were also convicted and sentenced under the Kerala Abkari Act for possessing and selling adulterated liquor. The High Court confirmed the conviction and sentence of the first appellant but converted the conviction of the second appellant into one for B abetment and sentenced. him to two years' rigorous imprisonment al· though he was ,.ever charged with that offence in the first place. Hence this appeal. Allowing the appeal of the second Appellant and partly the appeal of the first appellant, this Court C HELD : 1. The offence under S.272 IPC stood committed by the first appellant on the very day he was found in possession of adulterated arrack. The offence under S.272 was complete on introduction of the adulterant in · the food or drink, provided it was meant for sale, actual or likely. [1Z7A, 126-8] D 2. The first appellant having been in possession of adulterated liquor, the offences under Ss.SS(a) and (i) of the Kerala Abkari Act stood rightly prove.d against him. The scheme of the Abkari Act did not exclude the unlicensed possessor of liquor, in permitting him rdulteration. [128-C, 128-B] 3.1 The first appellant had to be acquitted of the charge under S328 IPC in the absence of positive evidence that be administered the poisoned liquor to. the deceased directly or indirectly with the necessary mens rea. Important links in the prosecution case remained missing. [131-C, Dl 3.2 The finding of the trial court that the accused did not have guilty knowledge of causing death cannot stop in that slide and take within its arms hurt also. [131-B, C} E F 4. S.l09 IPC could in no case be attracted and more so without a G charge to that effect put to th_e second appellant. The roles of the per· petrator and abettor of the crime are different. When the direct involve- ment ·of the second appellant could not be established, he could not be taken to have 1\nswered the charge of abetment and convicted on that basis. There would be serious miscarriage of justice to the accused causing great prejudice to his defence, [13l·D, G, Fl H 124 SUPREME COURT REPORTS (1994) SUPP. 4 S.C.R. A CR!¥1NAL APPELLATE JURJSDICflON: Criminal Appeal No. 472 of 1990 etc. From the Judgment and Order dated. 9.4.90 of the Kerala High Court in Crl. A. No. 416 of 1985. B G. Ramaswamy, V J. Francies, Thomas Mathew for the Appellant in c Crl. A. No.545!90 E.M.S. Anam and C.C. Thomas for the Appellants in Crl. A. No. 47
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