TMI Blog1994 (11) TMI 422X X X X Extracts X X X X X X X X Extracts X X X X ..... ing in possession of liquor in which such a noxious substance has been mixed with the knowledge that arrack or Indian made foreign liquors were mixed with methanol (methyl alcohol), a substance which, on consumption, is likely to endanger human lite or causes grievous hurt to human beings or causes death. Therefore, when the appellants were charged for all or any of the offences in one or the other case, before competent criminal courts, the constitutionality of the said two provisions of the Amendment Act was assailed. It is the case of the appellants that though they are dealers in arrack or Indian made foreign liquors either selling in retail shops or under their management, such arrack or Indian made foreign liquor was being supplied by the appropriate agencies controlled by the State or regulated under the Act They secured the supply only from those recognised sources in sealed bottles or containers. They did not mix noxious substance nor permitted mixing of any noxious substance with arrack or Indian made foreign liquor. As such, there was no occasion for them to take any reasonable precaution to prevent such mixing or for being in possession of such arrack or liquor mixed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of rental in that behalf fixed from time to time and the collection thereof, in addition to the duty or tax leviable under ss. 17 and 18. Chapter VI and VII prescribe the forms and conditions of licenses, etc. Chapter VIII deals with the powers and duties of officers including searches and seizures of the offending contra-band and the follow-up actions in furtherance thereof. It is thus clear that manufacture, possession, trade and business of liquor and intoxicated drug is the privilege of the State and no one has a right de hors the Act, for manufacture, possession or sale of them except on a licence granted in that behalf by the competent officer in accordance with the provisions of the Act and the rules made thereunder and according to the conditions of licence. In other words, it is a regulated trade or business. Chapter IX deals with penalties. Sections 55 to 57 deal with offences committed under the Act. Section 57, in particular, prohibits adulteration, etc., by licensed vendor or manufacturer of the liquor or intoxicating drug. Clause (a) excludes from its operation of the offence, namely, mixing or permitting mixing of any liquor or intoxicating drug, sold or manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich may extend to imprisonment for life, and with fine which may extend to fifty thousand rupees; (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; (3) Whoever possesses, any liquor or intoxicating drug in which any substance referred to in sub-section (i) 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 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 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 Court is satisfied that there are reasonable grounds for believing that he is not guilty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Amendment Act to provide severe penalty for adulteration of liquor or intoxicating drug so as to prevent recurrence of such tragic incidents. The first question is whether the State Legislature was competent to enact the Amendment Act. Entry 8 of List II - State List of the Seventh Schedule to the Constitution read with Article 246(3) of the Constitution, empowers the State Legislature to enact law relating to intoxicating liquors, that is to say, the production, manufacture, possession, transport, purchase or sale of intoxicating liquor. Entry 64 deal with offences against law with respect to any of the matter in List II. Entry 65 deals with jurisdiction and powers of all Courts except the Supreme Court with respect to any of the matters in List II. It is true that Sections 272 to 276 of the Indian Penal Code deal with punishment for adulteration of articles of food, while the Prevention of Food Adulteration Act, 1954 also deals with the same topic. As a procedural facet, Chapter 18 of the Code of Criminal Procedure, 1973 (for short 'the Code') and the relevant provisions in the Evidence Act 1872 deal with adduction of evidence and consideration thereof by the Court, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as regards the area of encroachment. The court has to ascertain the true nature and character of the subject of the Act or its pith and substance to find whether impugned Act falls within the competence of the particular legislature. Blind adherence to strict interpretation which would lead to invalidation of statutes as being legislated in the forbidden sphere should be avoided, lest all beneficial legislations would be stifled at birth and many a subject entrusted to the State legislature rendered ineffectual divesting the State legislature of its power to deal with particular subject of entry or topic. In A.S. Krishna v. State of Madras, [1957] SCR 399, a Constitutional Bench of this Court held mat when the law is impugned on the ground that it is ultra vires the power of the legislature which enacted it, what has to be ascertained is the true character of the legislation. To do that, one must have regard to the enactment as a whole, to its objects and to the scope and effect of its provisions. If on such examination it is found mat the legislation in substance is one on a matter assigned to the legislature, then it must be held to be valid in its entirety, even though it m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffence being within the special knowledge of the accused has also been laid on the accused person. Therefore, though incidentally it trenches into some of the provisions of the Evidence Act. the Indian Penal Code and the Code, in its pith and substance, it is an integral scheme of the Act, which falls within Entry 8 read with Entry 64 and 65 of Schedule II of the 7th Schedule of the Constitution. Under Article 246(3), the State Legislature was competent to enact the Amendment Act. Therefore, the assent of the President is not necessary. Even assuming that some of the provisions incidentally trespass into the field of operation of the central provisions falling in the Concurrent List, which empower both the Parliament and the State Legislature to enact the law, the assent given by the President made Sections 57A and 57B valid. The gazette notification of the Amendment Act has been placed before us which shows that the President has given his assent to the Amendment Act on December 1, 1984. Therefore, by operation of proviso to clause (2) of Article 254, the Amendment Act prevails over the relevant provisions in the Indian Evidence Act, IPC and the Code in relation to the State of Ke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sought and given for special reasons in respect of each enactment or provision or provisions. On the other hand, the observation clearly indicates that if the assent is sought and given in general terms it would be effective for all purposes. In other words, this Court observed that the assent sought for and given by the President in general terms could be effective for all purposes unless specific assent is sought and given in which event it would be operative only to that limited extent. In Minoo Framroze Balsara v. Union of India, AIR (1992) Bombay 375, it was contended that the Public Premises Unauthorised Occupants (Eviction) Act, 1971 prevails over the Bombay Rent Act following the ratio in Jamalpur Gram Panchayat's case but the division bench held that since special assent of the President was sought and given in relation to the Transfer of Property Act, and Small Causes Court Act over the Bombay Rent Act, the omission to obtain assent in relation to Eviction Act, 1971 was eloquent and that, therefore, the Public Premises Unauthorised Occupants (Eviction) Act, 1971 will not prevail over the Bombay Act. The ratio therein is not a general proposition of law as contend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al, (i) If as a result of such act, grievous hurt is caused to any person, then the accused on conviction, be punishable with imprisonment for a term which shall not be less then two years bat which may extend to imprisonment for life and with fine which may extend to ₹ 50,000. (ii) If as a result of such act, death is caused to any person, in other words, on account of consumption of adulterated liquor or intoxicating drug mixed with noxious substance or any other substance, the accused, on conviction, be punishable 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 Rs, 50,000. (iih In any other case, 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 may extend to ₹ 25,000. The expression 'grievous hurt' by operation of the Explanation to Sub-section (1) of section 57-A for the purpose of sections 57-A and 57-B, shall have the same meaning as envisaged in section 320 of IPC. Sub-section (2) prescribes 'omission' also as an offence postulating that w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section (4) deals with grant of bail. In view of the constitution bench decision of this Court upholding the constitutional validity of similar provision of TADA in Kartar Singh v. Union of India, [1994] 3 SCC 569, the validity of sub-section (4) is no longer res Integra and that, therefore, its validity no longer remains assailable. The need to elaborately discuss its validity is obviated. Therefore, it is accordingly held valid and so upheld. Sub-section (5), because of non-obstanate clause, makes inapplicable the relevant provisions in the Indian Evidence Act as to fact proved, disproved or not proved under section 3; may presume, shall presume and conclusive proof in section 4 and burden of proof in Chapter 7 in Part III of the Evidence Act. The special rules of evidence envisaged under sub-section (5) of section 57-A get attracted. Clause (a) provides that where a person is prosecuted for an offence under sub-section (1) or (2), the burden of proof that he has not mixed or permitted to mix noxious substance or any other substance with the liquor or the intoxicated drug or as the case may be, omitted to take reasonable precaution to prevent the mixing of any noxious substanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... place whether or riot he is convicted of an offence under section 57-A, to pay by way of compensation as liquidated damages such amount, as appears to be just, to be paid to the legal representatives of the deceased or to the person or persons to whom grievous hurt has been caused. By operation of sub-section (2), the person aggrieved by an order made under sub-section (I), has been given right of appeal to the High Court within prescribed period of limitation. The proviso imposes as a condition precedent that the appeal shall not lie unless the amount ordered under sub-section (1) was deposited in the court of first instance. In other words, exercise of the right of appeal under sub-section (2) is conditional one for pre-compliance with the order of the court made in sub-section (1) and gives to the High Court the jurisdiction to entertain the appeal only on proof of the deposit of the amount ordered to be made by the trial court. Since it is made a condition precedent, the second proviso gives power and discretion to the High Court to entertain the appeal, after the expiry of the prescribed period of limitation on the appellants' satisfying the court that he was prevented by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eath. Mere negligence in taking reasonable precaution to prevent mixing noxious substance or any other substance with arrack or Indian made foreign liquor or intoxicated drugs is made punishable with minimum sentence is harsh, unjust and excessive punishment offending Articles 14 and 21. Exclusion of proof of any mitigating circumstances, want of intention or non-serious or trivial consequences ensued by consumption of adulterated arrack etc. are totally excluded from consideration by me court in awarding sentence which would violate Fundamental Rules of fair procedure guaranteed under Articles 21 and 14. Even the culpability of the negligence proved under section 304- A while giving discretion to criminal court to impose lesser sentence, is taken away in the garb of mandatory deterrent sentence prescribed in section 57-A, compensatory justice envisaged in section 57-B is obnoxious to fair trial. The consequential omission or failure to deposit the compensation awarded as a condition to exercise right of appeal is also Unfair, unjust and illusory offending Articles 14 and 21, The presumptions envisaged in sub-section (5) of section 57-A per se violate the fundamental rights and uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf, the procedure is arbitrary, unjust and unfair offending Articles 14 and 21 of the Constitution. Mere mixing or permitted to mix noxious or other substance with liquor or intoxicated drug itself was made an offence without the same being exposed for sale or intended for sale or consumed and consumption by the person is contrary to the notions of fair criminal jurisprudence. Absence of burden on prosecution to prove these essential ingredients, makes the Amendment Act totally arbitrary and per se unjust violating Articles 14, 19 and 21. The presumption by section 57-A(5) read with section 57-A(3) that a person in possession of adulterated liquor is presumed to know mat the same is mixed with noxious substance is harsh and cruel since as a bona fide purchaser of liquor for consumption would also be a person in possession of the liquor or intoxicated drug without any knowledge that it was mixed with or permitted to be mixed with noxious or any other substance and it does not satisfy the test of rational connection. We have given our anxious and deep consideration to the diverse aspects projected forcefully by all the learned counsel and we find that they are unacceptable and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antithetic desires. This intertwined network is difficult to delienate within defined spheres of conduct within which freedom of action may be confined. Therefore, liberty would not always be an absolute licence but must arm itself within the confines of law, In other words, there can be no liberty without social restraint Liberty, therefore, as a social conception is a right to be assured to all members of a society, the liberty of some must not involve the oppression of others. If liberty be regarded a social order, the problem of establishing liberty must be a problem of organising restraint which society has over the individual. Therefore, liberty of each citizen is borne of and must be subordinated to the liberty of the greatest number, in other words, common happiness is an end of the society, lest lawlessness and anarchy will tamper social weal and harmony and powerful courses or forces would be at work to undermine social welfare and order. Thus the essence of civil liberty is to keep alive the freedom of the individual subject to the limitation of social control which could be adjusted according to the needs of the dynamic social evolution. The concept of individual liber ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst him and (g) provides not to be compelled to testify against himself or to confess guilt. This Court in Bachhan Singh v. Slate of Punjab, [1980] 2 SCC 684, while upholding the constitutionality of death sentence under section 302, IPC, when contended that it violates Article 6 (1) of the Convention and the Universal Declaration of Human Right held that both rights are substantially the same as the guarantees or prohibition contained under Articles 20 and 21 of our Constitution. India's commitment, therefore, does not go beyond what is prohibited in the Constitution and the Indian Penal Code and the Criminal Procedure Code. However, the spirit of the international convention has to be kept in view in considering the validity of the impugned provisions and their applications. It is true and indisputable, as contended by Sri A. Raghuvir, the learned senior counsel that the golden rule that runs through the web of all the civilised criminal jurisprudence is that the accused is presumed to be innocent unless he is found guilty of the charged offence. The burden to prove all the facts constituting the ingredients of the offence against the accused beyond reasonable doubt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legislative competence under the Act. The State has thereby the power to prohibit trade or business which is injurious to the health and welfare of the public and the elimination and exclusion from the business is inherent in the nature of liquor business. The power of the legislature to evolve the policy and its competence to raise presumptive evidence should be considered from this scenario. In Salabiaku v. Grance, [1988] 13 EHRR 379 at 388, the European Court of Human Rights while dealing with the scope of Article 11 of Universal Declaration of Human Rights, the scope of the burden of proof on the prosecution and also its placement on the accused, held that presumption of fact or of law operate in every legal system. Clearly, the Convention of civil and political rights does not prohibit such presumption in principle. It does, however, require the contracting states to remain within certain limits in this respect as regards criminal law. If, as the Commission would appear to consider paragraph 2 of Article 6 merely laid down a guarantee to be respected by the courts in the conduct of legal proceedings, its requirements would in practice overlap with the duty of impartiality ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;s, case, is in the defence of insanity and in offences where onus of proof is specially dealt with by statute. In Jayesena v. The Queen, (1970) A.C. 618, Lord Devlin speaking for the Privy Council, commenting upon Woolmington's case at p. 623 stated that the House laid it down that, save in the case of insanity or of a statutory defence, there was no burden laid on die prisoner to prove his innocence and that it was sufficient for him to raise a doubt as to his guilt In Reg. v. Edwards [1975] Q.B. 27, considering the Licence Act of 1964 and section 160 (1) (a), the Court of Appeal held that when the accused was convicted of selling intoxicating liquor without the licence contrary to law and the prosecution had not adduced any evidence to show that he did not have the licence, the Court of Appeal held that the burden was on the defendant (accused) to prove that he held a licence and that as he had not done so he was rightly convicted. This case followed number of precedents on the statutory exceptions and ultimately upheld that it is no part of the duty of die prosecution to prove a negative fact that the accused had a licence. In Ong Ah Chuan v. Public Prosecutor, (1981) A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... babilities, that he had not Intended to part with possession of the drugs to anyone else, but to retain them solely for his own consumption, (emphasis supplied). The constitutional validity of presumption under section 15 was upheld holding that a generous interpretation avoiding what has been called 'the austerity of tabulated legalism, suitable to give to individuals the full measure of the fundamental liberties is necessary and most liberal approach to the construction of the written constitution which is sui generis, is necessary. It was held that one of the fundamental rules of natural justice, in the field of criminal law, is that a person should not be punished for an offence unless it has been established to the satisfaction of an independent and unbiased tribunal that he committed it...........What fundamental rules of natural justice do require, is that there should be material before the court, that is, logically probative of facts sufficient to constitute the offence with which the accused is charged. Upon the prosecution's proving that certain ads consistent with that purpose and in themselves unlawful were done by the accused, the court shall infer that they w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Parliament makes its intention known, either expressly or by necessary implication, the courts must give effect to what Parliament has provided.....Whenever it is the intention of Parliament to place a burden of proof upon the accused, so to provide in express terms, the proposition advanced by the appellant cannot be sustained. In Mok Wei Tak and Am. v. The Queen, (1990) 2 A.C. 333, a case arising from Hong Kong Prevention of Bribery Ordinance (Laws of Hong Kong, 1980 rev., c.201). Sections 10 (I) (a), the accused husband and his wife were maintaining a standard of living above that commensurate with his official emoluments during the relevant period and on the charge of abatement of the crime by the wife; they were convicted of the offences and the Court of Appeal dismissed the appeal. On further appeal, the judicial committee speaking through Lord Roskill held per majority that section 10(1) creates an offence different from the other offences enacted by Part II of the Ordinance, It concerns with maintaining an excessive standard of living following an earlier event, namely, corrupt acquisition of assets which has enabled those later events to take place. Therefore, the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n stolen or obtained unlawfully, matters which are likely to be a formality in the majority of cases. Therefore, it was held that it contravened Article II (1) of the Hong Kong Bill of Rights. But with regard to section 25 it was held that under sub-section (1) of section 25, the onus is on the prosecution. Unless the prosecution can prove that the defendant has been involved in a transaction involving the relevant person's proceeds of drug trafficking within the wide terms of section 25(2) as set out in section 25(1) and that at that time he had the necessary knowledge or had reasonable grounds to believe the specified facts the defendant is entitled to be acquitted. However, once the defendant knows or has reasonable grounds to believe that the relevant person is a person who carries on or has .carried out drug trafficking or has benefited from drug trafficking, then the defendant knows that he is at risk of committing an offence and that he can only safely deal with that person if he is in a position to satisfy section 25(3) or (4). If the defendant chooses not to take the precautionary action under section 25(3) then he knows he can only safely proceed by relying on section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the element of knowledge formed part of the ingredient of possession when mere possession of the substance amounted to an offence and it would be within the province of the Parliament to create an offence. As seen, the Privy Council had-explained the rationale to strike a balance between individual liberty and social order and court is to see whether strict construction would subserve the legislative purpose and the Court was not inclined to adopt that strict construction. The decision of the Hong Kong High Court in the Queen v. Sin Yau-ming, [1992] 1 Hong Kong Criminal Law Reports p. 127, must be understood in the light of the latter decision of the Privy Council referred to hereinbefore. In Ed Tumedy v. State of Ohio, (71) L.Ed. 510, the question arose whether certain statutes of Ohio in providing for the trial by the Mayor for Violation of the Prohibition Act of the State, deprive the accused of due process of law violating the 14th Amendment to the Federal Constitution. Tapt, C.J. speaking for the unanimous Supreme Court of the United States of America held that a statute seeking to stimulate small municipalities to organise and maintain courts to try persons accused of vio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... violates due process of 14th Amendment Steward, J. expressing the opinion for majority by seven Members of the Court held that the statutory inference is constitutional. The purpose of section 26 USC 5601 (b) (1) and (2) is to provide that the unexplained presence of an accused at the sight where an unregistered distilling apparatus is set up or an illegal distilling business is carried out shall be sufficient evidence to authorise conviction, is to meet the practical impossibility of proving actual participation in such an illegal activity except by inference drawn from the accused's presence when the illegal acts were committed. The constitutionality of legislation authorising an inference from the certain facts depends on the rationality of the connection between facts proved and the ultimate fact presumed. Significant weight should be accorded to the capacity of Congress to amass the stuff of actual experience and cull conclusions from it in matters not within specialised judicial competence or completely common place. An unexplained presence of an accused at a place where an illegal distilling business is carried on shall be deemed to be sufficient evidence to authorise co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in possession of heroin could be presumed to have obtained it by purchase, the defendant was properly convicted for purchasing heroin which was not in or from the original stamped package. But since cocaine was being also cultivated in the United States, it was held that from mere possession the statutory presumption of unlawfully procured or to infer that cocaine in the defendant's possession had been illegally imported and that he had knowledge of its illegal importation cannot be sustained unless there is some evidence adduced by the prosecution. The ratio in Lawry's case was followed. In Barnes v. United States, 412 US 837 (1973), 37 Law. Ed. 2nd, 381, in a prosecution on a charge of being in possession of US Treasury checks from the mails knowing them to be stolen, the trial court instructed the Jury that ordinarily it would be justified in inferring, from the defendant's unexplained possession of the recently stolen property, that he possesses the mails with knowledge that it was stolen. On finding guilty by the jury and on conviction and affirmation by the Dist. Court and the US Court of Appeal on the federal side, on certiorari, Powell, J. speaking for the major ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mun, and Rehnquist, JJ., it was held that defendants' claim that it was unconstitutional for fee State to rely on the presumption because the evidence was otherwise insufficient for conviction had not been rejected by the State courts on the basis of an independent and adequate State procedural safeguards. It was held that the most common evidentiary device is the entirely permissible inference or presumption which allows, but does not require, the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and which places no burden of any kind on the defendant. The basic fact may constitute prima facie evidence of the elemental fact, A state statutory presumption, providing that the presence of a firearm in an automobile is generally presumptive evidence of its illegal possession by all persons occupying the vehicle, is not violative of the due process under the United States Constitution. For the purposes of the constitutionality, in terms of due process, a statutory presumption regarding a criminal matter, a presumption need not be accurate in every imaginable case. For the purpose of due process, the validity of inferences and presumptions va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an offender on merits. So the Supreme Court of USA adopted due process technique and reasonable doubt standard to synthesise the procedure and principles suitable to its judicial review. Section 5 of the Evidence Act envisages that evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and such other facts as are hereinafter declared to be relevant and no others. Illustration (a) provides that 'A' is tried for the murder of 'B' by beating him with a club with the intention of causing his death. At A's dial, the following facts are in issue :- A's beating B with the club; A's causing B's death by such beating; A's intention to cause B's death. Section 6 provides that facts which though not in issue, are so connected with a feet in issue to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. Section 101 places general burden of proof postulating that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 106 of the Evidence Act does not abrogate the well-established rule of criminal law that except in very exceptional classes of cases the burden that lies on the prosecution to prove its case never shifts and section 106 is not intended to relieve the prosecution of that burden. On the contrary, it seeks to meet certain exceptional cases where it is impossible, or a proportionately difficult, for the prosecution to establish facts which are especially within the knowledge of the accused and which can be proved by him without difficulty or inconvenience. In C.S.D. Swamy v. The State, [1960] 1 SCR 461, on a charge for offence under section 5(1) (a) and 5(1) (b) read with section 5(3) of the Prevention of Corruption Act, 1947, on the question of burden of proof, this Court noticing the language in section 5(3) which reads as under :- In any trial of an offence punishable under sub-section (2) the fact that the accused person or any other person on his behalf is in possession, for which the accused person cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income may be proved, and on such proof the court shall presume, unl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts scope was considered and held that under section 105 of the Evidence Act, if an accused person claims the benefit of Exceptions, the burden of proving his plea that his case falls under the Exceptions is on the accused but the nature and extent of the onus of proof on the accused is not the same as the nature and extent of the onus placed on the prosecution in a criminal case. He is not required to discharge that burden by leading evidence to prove his case beyond reasonable doubt. The test of proof beyond reasonable doubt does not apply to the accused and if he proves by preponderance of probabilities, the burden shifts to the prosecution which has still to discharge its original burden. Considering the Woolmington's ratio this Court held that the principle of common law criminal law jurisprudence would be a part of the criminal law in our country. In Dhanvantrai Balwantrai Desai v. State of Maharasthtra, AIR (1964) SC 575, it was held that in order to raise the presumption under sub-section (1) of section 4 of Prevention of Corruption Act, 1947, what the prosecution has to prove is that the accused has received gratification other than legal remuneration and when it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecution. Where the onus shifts to the accused, and the evidence on his behalf probabilities the plea he will be entitled to the benefit of reasonable doubt. The same view was reiterated in Kali Ram v. State of Himachal Pradesh, [1974] 1 SCR 722, by a bench of three Judges. In State of Mahrasthra v. Wasudeo Ramachandra Kaidalwar, [1981] 3 SCR 675, considering the question as to the nature and extent of burden of proof under section 5 (1) (e), this court held that the expression burden of proof has two distinct meanings; (1) the legal burden, that is, the burden of establishing the guilt and (2) the evidential burden, that is, the burden of leading evidence. Notwithstanding the general rule that the burden of proof lies exclusively upon the prosecution, in the case certain offence, the burden of proving a particular fact in issue may be laid by law upon the accused. This burden is not so onerous as that which lies on the prosecution and is discharged by proof of a balance of probabilities. As soon as the ingredients of offence under sections 5(1) and 5 (2) to the extent of the pecuniary resources or property in his possession or his known sources of income known to the prosecutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as Prohibition Act, 1947, held that the presumptions do not offend the requirement as the equality before law or the equal protection of law under Article 14 as they have to be raised against all persons against when the facts mentioned therein are established. After Bank Nationalisation's case and Menaka Gandhi v. Union of India, [1978] 1 SCR 568, the procedure prescribed must also stand the test of Article 21. It is settled law that the procedural as well as substantive law must satisfy the requirements of Articles 14, 20 and 21. In K. Veeraswamy v. Union of India, [1991] 3 SCC 655, when the constitutionality of section 5 (1) (e) and section 5 (3) of the Prevention of Corruption Act was challenged, the Constitution Bench held that a statute placing the burden on the accused cannot be regarded as unreasonable, unjust or unfair nor can it be regarded as contrary to Article 21 of the Constitution as contended for the appellant In Sanjay Dutt v. The State through C.B.I [1994] 5 SCC 410, a Constitution Bench held that on proof of possession of firearm or ammunition and of conscious possession by the prosecution, the unauthorised possession in notified area raises statutory pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances in which the offence was committed and therefore, without regard to the gravity of the offence, cannot but be regarded as harsh, unjust and unfair. The legislature cannot make relevant circumstances irrelevant, deprive the courts of their legitimate jurisdiction to exercise their discretion not to impose the death sentence in appropriate cases, compel them to shut their eyes to mitigating circumstances and inflict upon them the dubious and unconscionable duty of imposing a pre-ordained sentence of death. It was, therefore, held that section 303 IPC imposing compulsory death sentence on a person undergoing life imprisonment was held to be unconstitutional. This ratio also reiterates that savage sentence is anathema to civilised jurisprudence of Article 21 and that, therefore, court has wide discretion in imposing punishment in accordance with the magnitude of the crime. It is for the court to decide whether the procedure prescribed by law for depriving a person of his liberty or life is fair, just and reasonable. In Polavarapu Satyanarayana alias Narayana v. Polavarapu Soundaryavalli and Ors., 1987 (I) Andhra Law Times 762, the Andhra Pradesh High Court was to consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decisions on Menaka Gandhi, Kehar Singh v. Union of India, [1988] Supp 2 SCR 24, D.T.C, v. Union of India, [1990] Supp 1 SCR 142 and Sunil Batra v. Delhi Administration, [1979] 1 SCR 392 etc. The question of intention and the distinction between murder and culpable homicide under section 300 and 299 IPC and the doctrine of negligence and culpability under section 304-A IPC and the decisions arising thereunder are not relevant. The question of intention bears no relevance to an offence under section 57-A and equally of culpability or negligence. It is seen that mixing or permitting to mix noxious substance or any other substance with liquor or intoxicated drug or omission to take reasonable precaution or being in possession without knowledge of its adulteration for the purpose of unjust enrichment would be without any regard for loss of precious human lives or grievous hurt. The legislature has noted the inadequacy and deficiency in the existing law to meet the menace of adulteration of liquor etc. and provided for new offences and directed with mandatory language protection of the health and precious lives of innocent consumers. While interpreting the law, the court must be cogniza ..... X X X X Extracts X X X X X X X X Extracts X X X X
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