KULDIP SINGH - (1.) 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 houses and making many persons destitutes. Many ladies have become widows and many children orphans.
(2.) HERE is a case in which the festive day of Onam 1982 brought disaster to many families inasmuch as the prosecution case is that 70 persons died after having consumed liquor from the shops and sub-shops 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 ( 1/09/1982 ) thus became a day of disaster to hundreds of families. The magnitude of the calamity swang police into action who, after close of investigation, chargesheeted 10 persons for offences punishable under Sections 120-B, 302, 272 and 328 read 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 charges 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 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 acquitted 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 of the offences under 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. The convicted accused filed appeals before the Kerala High Court and the State challenged the acquittal of all the accused for the offence under Section 302 and the acquittal of accused 5 to 8 and 10 for all the offences.. The High Court heard all the appeals together and after a 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 undergo rigorous imprisonment for seven years. The 10th accused was further convicted under Sections 120-B and 328 read with S.107 and S.109 as well as S.272 read with S.34 S. 107 and S.109, For the offence under Section 328, rigorous imprisonment for six years and a fine of Rs. 10,000.00; and for the offence under Section 272 rigorous imprisonment for six months and a fine of Rs. 1,000.00 were awarded, with the rider that the substantive terms of imprisonment would run concurrently. 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 Bench felt that the case of enhancement exists; and so rules of enhancement were ordered on 5-1-94. Learned counsel for the appellants addressed us on the question of enhancement as well . Insofar as accused 9 is concerned, he had filed SLP (Cri) No. 1190/90 which was dismissed on 31/07/1990. Review Petition was also dismissed on 28/08/1991. By an order dated 10-11-94, he was, however, noticed by us to show-cause as to way sentence awarded to him by the High Court should not be enhanced, 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 question of his acquittal as well, as mentioned in our notice; so also on the question whether sentence awarded to him merits enhancement.
(3.) LET it first be seen whether the conviction as awarded by the High Court is sustainable. To decide this, what we shall have to primarily see is whether the five accused before us had 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 there is no appeal to this Court against the acquittal under Section 302 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 confine our discussion to the conviction as awarded by the High Court. The licence to vend liquor being in the name of the aforesaid firm (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 subsequently. In the relevant year (1982-83) the liquor licence had been obtained by the firm in the name of accused 1 and 2 along with wife of the 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 aforesaid accused, which conspiracy ultimately culminated in the aforesaid tragedy. For the sake of completeness, it may be pointed out that though accused 10 withdrew from this partnership sometime before the tragic occurrence, there is a finding based on materials on record that he continued his relationship with the firm.;