ial Leave Petition c No17098 of 1992
From the Judgment and Order dated 23101992 of the Allahabad High Court in Civil Misc
Writ Petition No473 of 1992
RB Misra for the Petitioners
Ms Shalmi Soni Mrs PS Shroff For Ms SA Shroff  Co for the Respondents
The following Order of the Court was delivered Heard counsel for the petitioners as well as the counsel for the respondents
We see no reason to entertain this special leave petition
It is established by the decision of this Court in Synthetics and Chemicals Ltd and Ors
vs State of UP and Ors
  that so far as the industrial alcohol is concerned the power of licencing vests in the Union of India alone
At the same time it is held that the power of the State Government to legislate with respect to potable liquor referable to Entry 6 of List II remains unaffected
It is also held that the State has the power to make regulations and to take appropriate action to ensure that nonpotable alcohol is not diverted and misused as a substitute for potable alcohol
Another principle enunciated in the said decision is that the State can not only charge excise duty on potable alcohol and sales tax on sales of such potable alcohol but also entitled in cases it renders any service 293 as distinct from its claim of grant of privilege to charge fees based on quid pro quo
The High Court in this case has merely reiterated the said principles
It has held that the Central Government has the exclusive power to grant a licence for the the manufacture of Industrial Alcohol
It is not necessary for the petitioner to obtain a PD 2 licence from the Excise Commissioner UP Allahabad before starting its distillery for the manufacture of Industrial Alcohol
The provisions in the UP Excise Manual relating to taking of PD 2 licence are not applicable to a case where a person wants to manufacture industrial alcohol
The other provisions of the Act and Rules of the UP Excise Act and Manual are applicable in order to ensure that Industrial alcohol is not converted into potable alcohol
 The final order of the High Court is to the following effect In view of the above we allow the writ petition and direct the respondents not to interfere with the petitioner s manufacturing industrial alcohol in the distillery for which licence had been granted
This is however subject to the right of the State Government to ensure that industrial alcohol is not converted into potable alcohol In our opinion the said observations must be understood as reiterating the principles enunciated by this Court in the decision afore cited
Mr Salve learned counsel for the State of Uttar Pradesh submitted that before manufacturing industrial alcohol the Respondent company has to manufacture rectified spirit and that rectified spirit can be coverted into potable liquor by merely adding water
May be so
The observations made by the High Court and the law laid down by this Court recognise and safeguard the power of the State Government to guard against such abuse
We affirm it
Shri Salve questioned the direction given by the High Court to the following effect We further direct that the respondents shall allot molasses to the petitioner in accordance with the assurance given to the petitioner vide order of the Government dated 2331989
 The proceeding dated 2331989 of course pertaints to the year 1989
But Mr FS Nariman leanred counsel for the Respondent Company says that the said order has been extended from time to time for the subsequent years as well
Mr Salve points out that in the body of the Judgment of the High Court no reasons 294 are given in support of the aforesaid direction
We are however of the opinion that the said direction cannot be construed and shall not be understood as calling upon or directing the Government to do anything or to make any supplies contrary to the Provisions of the Molasses control order or any other law governing the supply of molasses
The supply of molasses to the Respondent shall be made in accordance with law
Mr Salve raised certain other contentions but we did not allow him to do so in view of the fact that those contentions were not urged before the High Court
We need express no opinion thereon
Special Leave Petition is accordingly dismissed subject to the above observations
VPR Petition dismissed


Summary:
The prosecution alleged that when PW 9 and his brother having learnt that the appellant and two other persons were harvesting paddy from their plot went there and protested as to why their crops were being harvested one person caught hold of the hands of PW 9 s brother and the appellant assaulted him on his head with the back portion of a Tangi and at that very time another person assaulted PW 9 the informant with a lathi on his right hand
The three persons were charged with attempt to commit murder of PW 9 s brother and also theft of the paddy crops from the plot of PW 9 and his brother
On consideration of the evidence on record the Sessions Judge convicted the appellant and another accused for offence under section 307 read with section 34 of the Penal Code
They were sentenced to undergo seven years  and five years  rigorous imprisonment respectively
The third accused was convicted under section 323 and sentenced to undergo rigorous imprisonment for six months
All of them were also convicted under section 379 of the Penal Code and sentenced to one year s rigorous imprisonment each
138 During the pendency of the appeal before the High Court preferred by the three accused one of them died and his appeal abated
The High Court set aside the conviction and sentence under section 323 of the Penal Code against the other accused and he was acquitted of the charges levelled against him
The High Court also set aside the conviction and sentence under section 307 read with section 34 passed against the appellant but convicted him under section 304 Part 1 of the Penal Code and sentenced him to two years  rigorous imprisonment
In the appeal before this Court on behalf of the appellant it was urged that when PW 9 to whom the appellant was alleged to have given a blow by the back portion of a Tangi survived the injury there was no question of convicting the appellant under section 304 Part 1 of the Penal Code
It was also contended that the appellant had sustained injuries during the same occurrence including one at the scalp
Allowing the appeal this Court HELD  11
Section 304 does not create an offence but provides the punishment for culpable homicide not amounting to murder
In view of section 300 of the Penal Code except in cases covered by the five exceptions mentioned therein culpable homicide is murder
If a death is caused and the case is covered by any one of the five exceptions of section 300 then such culpable homicide shall not amount to murder
Section 304 provides punishment for culpable homicide not amounting to murder and draws a distinction in the penalty to be inflicted in cases covered by one of the five exceptions where an intention to kill is present and where there is only knowledge that death will be a likely result but intention to cause death or such bodily injury which is likely to cause death is absent
The first part of section 304 applies where there is guilty intention whereas the second part applies where there is guilty knowledge
But before an accused is held guilty and punished under first part or second part of section 304 a death must have been caused by him under any of the circumstances mentioned in the five exceptions to section 300 which include death caused while deprived of power of self control under grave and sudden provocation while exercising in good faith the right of private defence of person or property and in a sudden fight in the heat of passion without permeditation
141B DF 12
In the instant case when death itself had not been caused there 139 was no occasion for convicting the appellant under section 304 of the Penal Code
141G 13
The appellant in his examination under section 313 of the Code of Criminal Procedure stated that he had sustained injuries during the same occurrence while warding off the Bhala blow aimed at his chest by PW 9
The aforesaid injuries on the person of the appellant were examined by the Civil Assistant Surgeon who had been examined as a witness at the trial
The other accused who died during the pendency of the appeal had also been examined by the Jail Doctor and the Doctor was examined as a witness at the trial who proved the injuries on the person of accused
The Judge himself on consideration of the materials on record has come to the conclusion that the manner of occurrence as alleged by the appellants in which they sustained injuries has been suppressed and the true version of the occurrence has not been given by the prosecution and in the circumstances the right of private defence of person and property cannot be completely ruled out
142B CG H 14
In view of the finding of the High Court that the prosecution had not disclosed the true version of the occurrence and the right of private defence of person and property was available to the appellant the appellant was entitled to be acquitted
143A