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STATE Vs. MAHESH & ORS.

LL.B. SEMESTER V, CAMPUS LAW CENTRE, UNIVERSITY OF DELHI

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IN THE HON’BLE HIGH COURT OF DELHI

AT NEW DELHI

CRIMINAL APPELLATE JURISDICTION

(Under section 377 and 378 of Code of Criminal Procedure 1973)

IN CRIMINAL APPEAL NO _____ / 2019

State of NCT of Delhi … Appellant

Versus

Mahesh … Respondent No. 1

Bharat … Respondent No. 2

Vasu … Respondent No. 3

MEMORIAL FOR APPELLANT

Group 20, Section H, Campus Law Centre

Moot Counsels for Appellant Class Roll No. Examination Roll No.
Sarvjeet Yadav 173238 170590
Nitin Kumar 173574 170441

Memorandum on behalf of the State


STATE Vs. MAHESH & ORS.

TABLE OF CONTENTS

CONTENTS PAGE NO.


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1. STATEMENT OF FACTS 3

2. STATEMENT OF JURISDICTION 4

3. TABLE OF REFERENCES AND CASES 5

4. STATEMENTS OF ISSUES 6

5. SUMMARY OF ARGUMENTS 7

6. DETAILED PLEADINGS 9

7. PRAYER 19

Memorandum on behalf of the State


STATE Vs. MAHESH & ORS.

STATEMENT OF FACTS

2.1 On the festive day of Holi of 2009, 70 persons died and 24 lost eye sight permanently Page | 3
in Delhi after having consumed liquor from the shops and the sub-shops which were catered
by the firm names “TOUCH LIQUOR”. Many others became prey to lesser injuries.

2.2 TOUCH LIQUORS was started on 24th February 2006 and the licence to vend liquor
was taken in the name of the firm by the three partners- BHARAT, VASU and MAHESH.

2.3 All three accused were convicted under 326 r/w section 120B, 107 and 109 of IPC and
were sentenced to rigorous imprisonment of seven years. All the three were acquitted under
section 302, 120B of IPC

2.4 Mahesh was also convicted under 272 read with section 34, 107 and 109 of IPC and was
sentenced to rigorous imprisonment of six months and fine of rupees one thousand with the
rider that the substantive terms of imprisonment would run concurrently. No order of
compensation to the victims was passed by the Sessions Court.

2.5 The present appeal is being filed by the State against acquittal of the accused persons
u/s 302, 120B of IPC and for enhancement of Punishment u/s 326 r/w section 120B, 107 and
109 of IPC.

2.6 All the accused persons also challenged their conviction and prayed for setting aside of
the sentence.

2.7 The victims and families filed a class appeal praying for grant of adequate compensation
to the victims and their families under section 357/357A of the CRPC as no order for
compensation was made by the sessions court.

2.8 All the appeals are clubbed together.

This Memorandum contains the issues raised by the State, accused and the victims and their
families.

Memorandum on behalf of the State


STATE Vs. MAHESH & ORS.

STATEMENT OF JURISDICTION

The Appellant humbly submits this memorandum before this Honourable Court u/s 377 and
378 of Code of Criminal Procedure 1973. Page | 4

Sec 377(1) of CrPC provides for Appeal by the State Government against sentence:-
Save as otherwise provided in sub-section (2), the State Government may, in any case of
conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to
present an appeal to the High Court against the sentence on the ground of its inadequacy.

Section 378 provides for Appeal in case of acquittal.

(1) Save as otherwise provided in sub- section (2) and subject to the provisions of sub- sections
(3) and (5), the State Government may, in any case, direct the Public Prosecutor to present an
appeal to the High Court from an original or appellate order of acquittal passed by any Court
other than a High Court 2 or an order of acquittal passed by the Court of Session in revision.]

(2) If such an order of acquittal is passed in any case in which the offence has been investigated
by the Delhi Special Police Establishment constituted under the Delhi Special Police
Establishment Act, 1946 (25 of 1946 ), or by any other agency empowered to make
investigation into an offence under any Central Act other than this Code, the Central
Government may also direct the Public Prosecutor to present an appeal, subject to the
provisions of sub- section (3), to the High Court from the order of acquittal.

(3) No appeal under sub- section (1) or sub- section (2) shall be entertained except with the
leave of the High Court.

(4) If such an order of acquittal is passed in any case instituted upon complaint and the High
Court, on an application made to it by the complainant in this behalf, grants special leave to
appeal from the order of acquittal, the complainant may present such an appeal to the High
Court.

List of references and cases

Memorandum on behalf of the State


STATE Vs. MAHESH & ORS.

Websites
Manupatra
SCC Online
Indian Kanoon Page | 5

Bare Acts
Partnership Act 1932
Code of Criminal Procedure 1973
Indian Penal code 1860

Case Laws

EK Chandrasenan Vs. State of Kerala (1995 AIR 1066, 1995 SCC (2) 99)
Hari Krishna and State of Haryana vs. Sukhbir Singh [(1988) 4 SCC 2127]
Maya Devi and Ors. vs. Raj Kumari Batra [(2010) 9 SCC 486]
State of Andhra Vs. Punnaya, AIR 1977 SC page 45
Chirag Vs. State of Gujrat
Hanifa vs State of Kerala 2012 SCC online KR 28507
Ravinder singh@ Ravi Pawar Vs. State of Gujarat
Madan Lal vs. State of HP
Swaran Singh Vs. State of Punjab
Ramkaran mohan Vs State

Memorandum on behalf of the State


STATE Vs. MAHESH & ORS.

STATEMENT OF ISSUES

1. Whether the acquittal of the accused persons under section 302, 120B of IPC by the
trial court, sustainable?
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(Dealt by - Sarvjeet Yadav)

2. Whether looking at the lives lost and permanent deformity caused to such number of
people the quantum of sentence awarded by the session court under section 326 of
IPC read with section 120-B, 107 and 109 would be enhanced or not?
2.1 Whether there was any need of enhancement of punishment?
2.2 Whether session court was a bit lenient while pronouncing sentence for such a
grave magnitude of crime?

(Dealt by – Nitin Kumar)

3. Whether circumstantial evidence available on record is sufficient to convict accused


no. 1 under section 272 read with section 34, 107, 109 when he already withdrew
from the firm?

(Dealt by- Sarvjeet Yadav)

4. Whether the trial court, while concluding the case, was in error for not making any
orders for the compensation to victims or their families under S. 357 and/or 357 A
Cr.P.C.?

4.1. Whether there is a need for the compensation orders in the case?
4.2. If yes, there is a need and court was at fault, then who is liable for the
compensation to the victims? Whether the accused persons or the state?

(Dealt by – Nitin Kumar)

Memorandum on behalf of the State


STATE Vs. MAHESH & ORS.

SUMMARY OF ARGUMENTS
1. ISSUE 1. Whether the acquittal of the accused persons under section 302, 120B of IPC
by the trial court, sustainable? –BY SARVJEET YADAV
 In State of Andhra Vs. Punnaya, AIR 1977 SC page 45, it was held that it will
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be sufficient to say that section 300(4) would be applicable where the
knowledge of the offender as to the probability of death of person or persons in
general as distinguished from a particular person or persons, being caused from
his imminently dangerous act, approximates to a practical certainty. Such
knowledge on the part of the offender must be of the highest degree of
probability, the act having been committed by the offender without any excuse
for incurring the risk of causing death or such injury as aforesaid.

 Considering the nature of the offence in which the accused persons are involved
and the manner in which liquor was distributed to large number of customers,
having full knowledge about its contents, it requires to be viewed seriously as it
took many lives because of the consumption of spurious liquor.
 When there is crime and meeting of the minds, prima facie case of section 120B
is established. There is knowledge and hatching of conspiracy. The provision
of Section 302 is prima facie attracted looking at the death of innocent persons.
2. ISSUE 2: Whether looking at the lives lost and permanent deformity caused to such
number of people the quantum of sentence awarded by the session court under section
326 of IPC read with section 120-B, 107 and 109 would be enhanced or not?
2.1 Whether there was any need of enhancement of punishment?
2.2 Whether session court was a bit lenient while pronouncing sentence for such a grave
magnitude of crime? –BY NITIN KUMAR
 Yes, enhancement of punishment from seven years to life imprisonment was
required as it is a case of criminal misconduct leading to the loss of life of 70
people and 24 people losing their eyesight completely.
 Looking at the causalities suffered and magnitude of tragedy, the session court
was bit lenient while pronouncing sentence which shows court was at fault and
need to enhance the punishment.
3. ISSUE 3: Whether circumstantial evidence available on record is sufficient to convict
accused no. 1 under section 272 read with section 34, 107, 109 when he already
withdrew from the firm? –BY SARVJEET YADAV

Memorandum on behalf of the State


STATE Vs. MAHESH & ORS.

 Even though the accused withdrew from the firm there is no material available
on record to show that he discontinued his relationship with the firm.
 There is plethora of material on record to show that the accused person have
acted in concert in adulterating the liquor consumption of which was
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responsible for the death and loss of eyesight apart from causing other injuries.
The accused person entered into conspiracy with common intention to sell
adulterated liquor to make huge profits.
 Weather from the evidence led in the case that all the accused persons were
active management of the firms suffer from any infirmity? The circumstances
showed that despite the withdrawal from the firm before the occurrence of the
incident the accused took active part in the management. The partner had clear
motive to drive wrongful gain from adulteration which was undertaken on
behalf of the firm to commit the offences.
4. ISSUE 4: Whether the trial court, while concluding the case, was in error for not making
any orders for the compensation to victims or their families under S. 357 and/or 357A
Cr.P.C.? –BY NITIN KUMAR

4.1. Whether there is a need for the compensation orders in the case?
4.2. If yes, there is a need and court was at fault, then who is liable for the compensation
to the victims? Whether the accused persons or the state?
 Yes, the Court made an error, neither the Court awarded any compensation to the
injured/legal heirs under S. 357 Cr.P.C. nor it recommended the grant of
compensation u/s 357A Cr.P.C. The Court appears to be totally ignorant of the
benevolent provisions of Law.
 Yes, the compensation was required as the magnitude of the tragedy was large
enough to affect many lives and it affected. 70 people have died, 24 lost their
eyesight and others were grievously hurt. Victims were left to live on their own in
hardship by the Court.
 The accused were liable to pay the compensation u/s 357 Cr.P.C. Only in case of
inadequate compensation, acquittal or discharge, the recommendations could have
been made under Sec. 357 A Cr.P.C.

Memorandum on behalf of the State


STATE Vs. MAHESH & ORS.

Detailed Pleadings
MOST RESPECTFULLY SHOWETH:-

That the present appeal is filed under Section 377 and 378 of code of criminal procedure 1973
to set aside the order of the trial court and Convict the accused persons under Section 302 120 Page | 9
B of IPC and enhance the punishment of this accused persons under section 326 red with 107
and 109 of IPC. This appeal is clubbed with the appeal filed by the accused against his
conviction u/s 272 r/w 34,107,109 of IPC and application filed by the victims and their families
for compensation u/s 357/357A.

1. ISSUE 1. Whether the acquittal of the accused persons under section 302, 120B of IPC
by the trial court, sustainable?

a) In Chirag Vs. State of Gujrat, it was said that Knowledge implies awareness. It
requires such knowledge as men in his position might be expected to possess.
Knowledge is a mental act and condition of the mind as such incapable of direct
proof.
b) "Section 300(4) of IPC states that If the person committing the act knows that it is
so imminently dangerous that it must, in all probability, cause death or such bodily
injury as is likely to cause death, and commits such act without any excuse for
incurring the risk of causing death or such injury as aforesaid."
c) In State of Andhra Vs. Punnaya, AIR 1977 SC page 45, it was held that it will be
sufficient to say that section 300(4) would be applicable where the knowledge of
the offender as to the probability of death of person or persons in general as
distinguished from a particular person or persons, being caused from his imminently
dangerous act, approximates to a practical certainty. Such knowledge on the part of
the offender must be of the highest degree of probability, the act having been
committed by the offender without any excuse for incurring the risk of causing
death or such injury as aforesaid.

d) The adulterated liquor was sold by the firm during the festival season which resulted
in death of 70 people and caused severe injuries to others. Nothing more than the
above is required to hold that the firm wanted to earn profit at the cost of human
lives. The magnitude of Profit involved satisfies that there was meeting of mind in
so far as the persons in the management of the firm are concerned to undertake the

Memorandum on behalf of the State


STATE Vs. MAHESH & ORS.

highly illegal act. The accused persons have acted in concert in adulterating the
liquor and entered into conspiracy with common intention to sell adulterated liquor
to make huge profits.
e) Even though the accused no. 1 withdrew from the firm, there is nothing to show
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that he discontinued his relationship with the firm and never took active part in the
management. The partners had clear motive to drive wrongful gain from
adulteration which was undertaken on behalf of the form to commit the offences
f) The circumstances of the case reveal manufacture, sale, transportation and supply
of illicit liquor, distribution and consumption of which ultimately resulted in death
of many people when the role of the accused in the commission of the crime prima
facie surfaces on record. Considering the role attributed to the accused and the
manner in which the offence is committed by him in tandem with other accused and
seriousness as well as the gravity of the offence in which the accused persons are
involved, whereby people lost their lives and family is lost their breadwinners. The
activities of the accused persons also have a very adverse or deleterious effect on
the society as a whole and therefore involvement of the accused persons in the
commission of offence required to be viewed very seriously.
g) As regards circumstantial evidence, the chain of events is complete to fasten him.
As to when conspiracy can be taken as established, it has been accepted 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 conspiracy by this accused has no significance.

No parity can be granted to the accused persons considering the gravity of the crime
and involvement of the accused in a serious offence punishable under Section 302.

h) In EK Chandrasenan Vs. State of Kerala(1995 AIR 1066, 1995 SCC (2) 99), the
High Court took the view that the accused had no knowledge that the adulteration
caused by them would endanger life because of which the accused persons were not
convicted under Section 302. The Supreme Court held, the High Court was not
correct in arriving at this finding; but as there is no appeal by the State against
acquittal of the appellants under Section 302, the Hon’ble Supreme court did not
reverse this finding of the High Court.

Memorandum on behalf of the State


STATE Vs. MAHESH & ORS.

i) When the standard and healthy alcohol in the form of liquor is not available or is
too costly for a common man, the poor section of the society goes for illicitly
distilled liquor which is sold by the bootleggers. The bootleggers take full advantage
of this human weakness and without any qualms of conscience, distil illicit liquor
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and then to increase the sale and to gain astronomical profits make their product
more potent at least in taste so as to attract the poor customers. Such poor customers
invariably become the prey of such unholy avarice on the part of the bootleggers
and in the process even lose their lives at times or suffer such injuries which are
irreparable like total blindness etc. and that is precisely what has happened in this
case.
j) In Hanifa vs State of Kerala 2012 SCC online KR 28507 it was held that the
argument that the accused had no knowledge of the spurious nature of liquor cannot
absolve his liability. Knowledge is also a state of mind. It has to be inferred or
gathered from the proved facts and circumstances obtained in the case. The
contention that the act was accidental in nature was also rejected.
2. ISSUE 2: Whether looking at the lives lost and permanent deformity caused to such
number of people the quantum of sentence awarded by the session court under section
326 of IPC read with section 120-B, 107 and 109 would be enhanced or not?
2.1 Whether there was any need of enhancement of punishment?
2.2 Whether session court was a bit lenient while pronouncing sentence for such a grave
magnitude of crime?
a) That Section 320 of ipc which is “GREVIOUS HURT” states following kind of
heart as GREVIOUS: - Emasculation and Permanent privation of either eye.
b) When we look at the case 70 people have dies and 24 lost both of their eye sight
permanently. They lost privation of the sight of both the eye which has caused
far more injury as mentioned above in section 320 of IPC.
c) Those people will not be able to work for the rest of their lives. They were the
sole bread earners of their families. Depriving of them with their eyesight is a
serious criminal misconduct and must be dealt with utmost seriousness.
d) As per the explanation given on the page 526 of IPC which illustrates that the
offence of grievous hurt is not caused unless the offender both causes grievous
hurt and intends or knows himself to be likely, to cause grievous hurt as stated
in Ramkaran mohan Vs State.

Memorandum on behalf of the State


STATE Vs. MAHESH & ORS.

e) The three accused were very well aware of the fact that after procuring license
to vend liquor; they need to follow the rules and procedure prescribed by the
state government of Delhi. They very well knew that if they adulterate or add
more alcohol than the prescribed limit, it will be unhealthy and can lead to
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severe consequences. If we assume that they did not intend as profit earning was
their sole motive but it cannot be denied that they did not had the knowledge.
f) Section 326 of the IPC states voluntary causing heart by dangerous weapons or
means-Whoever, except in the case provided for by section 335, voluntarily
causes grievous hurt by means of any instrument for shooting, stabbing or
cutting, or any instrument which, used as a weapon of offence, is likely to cause
death, or by means of fire or any heated substance, or by means of any poison
or any corrosive substance, or by means of any explosive substance, or by means
of any substance which it is deleterious to the human body to inhale ,to swallow,
or to receive into the bold, or by means of any animal, shall be punished with
[imprisonment for life], or with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine.
g) The session judge convicted all three under section 326 of IPC read with 120-b
107 and 109 and each of them was sentenced to rigorous imprisonment for seven
years. The state appreciates the judgment but looking at the lives lost and
number of causalities happened, the state wanted all the three to be sentenced
for life imprisonment.
h) Whether looking at the evidence advanced in case in session court concluded
that all the three accused were in active management in the firm or not?
i) There is no problem as so far in the in matter of accused 1 and 2 are
concerned but whether accused 1 that is Mahesh, to show that he was taking
active part in the management?
j) The session court has mentioned about the following circumstances to show that
despite the withdrawal from the firm of TOUCH LIQUOR, he continued to take
active part in the management:

(i) operation of bank account upto 7 June 2009

(ii) The continued user of the jeep belonging to this accused by the firm
Touch liquors

Memorandum on behalf of the State


STATE Vs. MAHESH & ORS.

(iii) dealing with all labour problems and service conditions of the employee
of the firm

(iv) joint management of the firm at hand and Vypeen Liquor, in which this
accused was admittedly taking leading part, treating them as sister concerns
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(v) Continuous money transactions between Touch Liquors and Cochin
wines, another firm of this accused

k) The aforesaid circumstances do not leave any manner of doubt in our mind that
accused 3 was taking active part in the management. In the aforesaid premises,
we have no hesitation in agreeing with the conclusion arrived at by Session
Court that all the three appellants were taking active part in the management of
the firm. The perusal of the judgment shows that after taking this view, the
Session Court analyzed the evidence (direct or circumstantial) to find out
whether there was conspiracy between the parties and it ultimately concluded
that there was a conspiracy.
l) The venture undertaken has been described as 'huge profit making" by the
Session Court and it has rightly said that without the knowledge, consent and
connivance of the person in the management of the firm such a venture would
not have materialized.
m) 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.
n) Thus, the session court was right in sentencing all of the three under section 326
read with 120B, 107 and 109. The question now arises for the enhancement of
the sentence. Citing the judgment of three judge bench given in E.K.
Chandrasenan vs State of Kerala on 19 January, 1995 in which 70 persons
died and 24 lost eyesight and many more injured were charged under section
326 of IPC read with 120-b, 107 and 109 were convicted for seven years. The
bench enhancing their sentence stated that there cannot be two opinions, as the
appellants by their nefarious activity, prompted only by lust of money sold
adulterated and poisonous liquor.
o) What can be more shocking to the conscience? If greed makes people
unconscionable and so unconcerned with human happiness which destroys

Memorandum on behalf of the State


STATE Vs. MAHESH & ORS.

human life must be dealt sternly and with a steel heart not yielding any plea of
softness on any ground, not relenting to discharge the onerous duty which falls
our court in such cases.
p) The need to rise to the occasion becomes great and imperative as liquor barons
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have been playing with destinies of many. This has been prevalent all around
the country and has been taking heavy toll on human lives. So, retribution itself
demands enhancement. Deterrent lends further support to the demand. Let us
all strive to check our atrocious acts. We would we indeed failing in our duty if
we were not to do so. And the least we can do in the case at the hand is to see
that the maintain sentence visualized by our law makers is awarded to all the
appellants before us. There can hardly be more appropriate occasion than
the one at hand to award the maximum sentence.
q) For the aforesaid reason, we are of the view that that the sentence of all the three
accused must be enhanced to life imprisonment. With the judgment mentioned
in the above case and the amount of injury sustained in present case makes it
clear that the three accused were very well having the knowledge about the
effects of adulterated liquor was going to cause.
r) They have caused permanent deformity by administering adulterated alcohol to
24 people which is not to be considered a simple case of criminal misconduct.
A stern punishment should be given so that in the coming future no one tries to
play with lives of people. Thus, the state demands to enhance the sentence from
seven years to imprisonment for life.
3. ISSUE 3: Whether circumstantial evidence available on record is sufficient to convict
accused no. 1 under section 272 read with section 34, 107, 109 when he already
withdrew from the firm?
Indian partnership act, 1932
Section 25 - LIABILITY OF PARTNER FOR ACTS OF THE FIRM – Every partner
is liable, jointly with all the other partners and also severally for all acts of the firm
done while he is a partner.
Indian penal code, 1860
Section 272 – ADULTERATION OF FOOD OR DRINK INTENDED FOR SALE –
Whoever adulterates, any articles of food or drink, so as to make such article noxious
as food or drink, intending to sell article as food or drink, or knowing it to be likely that
the same will be sold as food or drink, shall be punishable with imprisonment of either

Memorandum on behalf of the State


STATE Vs. MAHESH & ORS.

description for a term which may extend to six months or with fine which may extend
to one thousand rupees, or with both.
Section 34 – ACT DONE BY SEVERAL PERSON IN FURTHERENCE OF
COMMON INTENTION – When criminal act is done by several persons in furtherance
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of the common intention of all, each of such person is liable for that act in the same
manner as if it were done by him alone.

CASE 1 – E.K CHANDRASENAN VS STATE OF KERALA

-For the sake of completeness, it may be pointed out that though Mahesh 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.

-According to the learned counsel there is a plethora of material on record to show that the
three accused named above had acted in concert in adulterating the liquor, consumption of
which was responsible for the deaths and loss of eyesight, apart from causing other injuries.

-The aforesaid partners of the firm were those who were in-charge of the management and
Mahesh had entered into conspiracy either individually or collectively with them; and on such
accused Mahesh before us is guilty of the offences for which they have been convicted by the
session court, this result follows either because of the conspiracy of the partners or because of
the common intention on the part of the partners.

-This aspect of the case presents no problem insofar as accused Bharat and Vasu are concerned
in as much as even licence to vend liquor by the firm stands in the name of accused Bharat
and Vasu and as to Mahesh there is enough evidence to show that he was taking active part in
the management.

-The trial court has mentioned about the following circumstances to show that despite his
withdrawal from the firm before the occurrence, he continued to take active part in the
management.

-Let it be first stated that according to us no proof of conspiracy as such between the three
appellants was strictly necessary in as much as they being partners had clear motive to derive
wrongful gain from adulteration which was undertaken on behalf of the firm who commit the
offences. The venture undertaken has been described as huge profit making by the session court

Memorandum on behalf of the State


STATE Vs. MAHESH & ORS.

and it has rightly said that without the knowledge, consent and connivance of the person in the
management of the firm, such a venture would not have materialized.

-The greed for huge money is thus writ large in the abominable planning nothing more then the
above is required to hold that the liquor was out to earn profit at the cost of human life. The Page | 16
magnitude of profit aimed at fully satisfied us that there was meeting of mind insofar as the
person in the management of the firm are concerned to undertake the highly illegal act.

-So far as section 272 is concerned, there is no dispute because apparently there was
adulteration.

CASE 2 – JOSEPH KURIAN VS STATE OF KERALA

-In order to established that an offence under section 272, IPC has been committed, the
prosecution has to prove that the article involved was food or drink meant to be consumed by
live person, that the accused adulterated it, that such adulteration rendered it noxious food or
drink, and that the accused at the time of such adulteration intended to sell such articles as food
or drink, or knew it to be likely that such article would be sold as food or drink. Now noxious
rendering is making it poisonous or harmful or both, as is plain the offence is complete on
introduction of the adulterant in the food or drink, provided it is meant for the purpose of sale,
actual or likely.

CASE 3 – RAVINDER SINGH @ RAVI PAVAR VS STATE OF GUJARAT

- Some harmful chemicals had been added while the manufacturing of liquor as it had the
devastating results and can cause death or severe damage to health or injuries to anyone who
consumes it. Further, such type of offences, as in the case on hand, or against the society at
large and who commit the same do not deserve any leniency.

-The claim that he had no knowledge about all these aspects is unacceptable.

4. ISSUE 4: Whether the trial court, while concluding the case, was in error for not making
any orders for the compensation to victims or their families under S. 357 and/or 357 A
Cr.P.C.?

4.1. Whether there is a need for the compensation orders in the case?

Memorandum on behalf of the State


STATE Vs. MAHESH & ORS.

4.2. If yes, there is a need and court was at fault, then who is liable for the compensation
to the victims? Whether the accused persons or the state?
a) It is humbly submitted the session court made an error for not making any orders
for compensation.
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b) Justice remains incomplete without adequate compensation to the victims.
Justice is complete only when the victims are also compensated. S. 357 Cr.P.C.
empowers the court to award compensation to victims who have suffered by the
action of the accused.
c) Despite there being provisions of S. 357 and 357A of Cr.P.C., trial courts are
reluctant to award compensation. Noticing this inhibition, Hon'ble Apex Court
in the case of Hari Krishna and State of Haryana vs. Sukhbir Singh (1988) has
made the following observation: “S. 357 of Cr.P.C. is an important provision
but courts have seldom invoked it. This Section of law empowers the courts to
award compensation while passing the judgment of conviction. This power is
not ancillary to other sentences but is in addition thereto. We, therefore,
recommend to all the Courts to exercise this power liberally so as to meet the
ends of justice in a better way.”
d) The trial Court failed to appreciate this and didn't act as a responsible Court.
There is really a requirement and need for the immediate compensation in this
case.
e) In this case 70 people have died, 24 lost their eyesight, and others were
grievously hurt. The magnitude of the offence has forced the victims to live their
life in misery. Some families have lost their bread-earners. It was necessary for
the Court to keep the following things in mind at the conclusion;
 Nature of the injury caused: The Supreme Court in Madan Lal vs. State
of HP invoked this provision of 357 Cr.P.C. In yet another case, the
widow and her children were compensated for the loss they have
suffered. Here, in this case, when 70 people have died and many
suffered, compensation is not awarded.
 Application of mind: S. 357 of Cr.P.C., confers a heavy duty on the
judges to apply its mind to the question of compensation. In Maya Devi
(Dead) and Ors. vs. Raj Kumari Batra it was observed, even though
awarding or refusing compensation might be in the court’s discretion

Memorandum on behalf of the State


STATE Vs. MAHESH & ORS.

there is a mandatory duty on the court to apply its mind on the question
in every criminal case. The court failed at it.
f) Under S. 357 Cr.P.C. the accused is liable to pay the compensation. The
scope of S. 357 was explained by the Supreme Court in Sawarn Singh vs. State
Page | 18
of Punjab. The Court said that the aim of S. 357 is to give compensation to the
victim or their kin, even when fine does not form a part of the sentence u/s
357(3). Under S. 357(1) the fine imposed would be recovered and applied as
the compensation but the Session Court didn't impose any fine while convicting
the accused persons under S. 326 IPC. The Court should have imposed fine and
even when fine doesn't form part of a sentence u/s 357(3) Cr.P.C. the
compensation should have been awarded. If the trial Court, at the conclusion, is
satisfied that the compensation awarded under section 357 is not adequate or
where the case ends in acquittal or discharge, it may make recommendation for
compensation under Section 357A of Cr.P.C.
g) That the trial court didn't impose any fine on accused persons, neither awarded
any compensation under S. 357(3) nor they recommended for compensation
under section 357 A. The court remained totally ignorant that victims need
compensation and rehabilitation in this case.

Memorandum on behalf of the State


STATE Vs. MAHESH & ORS.

PRAYER

That the appellant humbly prays this Hon’ble court


Page | 19
a) To set aside the order of the Sessions Court and convict all the accused persons under
section 302 r/w 120B of IPC and uphold the conviction of the accused persons under
section 326 read with 107, 109 of IPC.
b) That all the accused persons be awarded with maximum punishment provided for the
above said offences in IPC. That the Sentence be enhanced from seven years to life
imprisonment and a strong message be given to the person indulging in wrongful
activities related to liquor business.
c) That no relief be granted to the accused/respondent no. 1 convicted u/s 272 r/ w 34, 107
and 109 of IPC and uphold his conviction.
d) Adequate compensation should be awarded to the victims or their families.

Memorandum on behalf of the State