IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 4TH NOVEMBER 2009 / 13TH KARTHIKA 1931 Crl.MC.No. 996 of 2009() ---------------------------------- ST.3216/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, KOCHI .................... PETITIONERS/ACCUSED ----------------------------------- 1. R. PASUPATHY, FORMER GENERAL MANAGER, MALABAR HOTEL (NOW TAJ MALABAR), WILLINGTON ISLAND, KOCHI. 2. MALABAR HOTEL (NOW TAJ MALABAR), WILLINGDON ISLAND, KOCHI,REP.BY ITS GENERAL MANAGER. 3. SATHEESH, S/O. KARUNAKARAN NAIR, PADMAM HOUSE, ATTUKAL.P.O.,THIRUVANNTHAPURAM. 4. MADHUSOODHANAN, MALABAR HOTEL (NOW TAJ MALABAR), WILLINGDON ISLAND, KOCHI. BY ADV. MR.G.SHRIKUMAR MR.SREEJITH S.NAIR RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------------------- 1. THE INSPECTOR, LEGAL METROLOGY, KOCHI TALUK, PERUMBADAPPU,KOCHI. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 & R2 BY PUBLIC PROSECUTOR MR.S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04/11/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.996 OF 2009 ------------------------------------------ Dated 4th November 2009 O R D E R The former General Manager and subsequent General Manager and staff members of Malabar Hotel, Willingdon Island, Kochi who are the accused in S.T.3216/2008 on the file of Judicial First Class Magistrate-I, Kochi are the petitioners herein. On 22/6/1993 at about 1.15 p.m a surprise inspection was conducted by the Inspector, Legal Metrology, Kochi at Malabar Hotel. The Inspector detected short delivery of Dubbonet, a foreign liquor which according to the petitioners in liqueur, by 4 ml to a consumer as instead of 60 ml demanded and paid 56 ml alone was delivered. It is alleged that thereby an offence under Section 39(2) of Standards of Weights and Measures (Enforcement) Act, 1985 (hereinafter referred to as SWM (Enforcement)Act) was committed. It was also contended that a Wills filterpipped cigarette packet with maximum retail price not exceeding Rs.9.85 (inclusive of all taxes) was sold for Rs.13/- Crmc 996/09 2 which is Rs.3.15 in excess and thereby violated Rule 23 (2) of Standards of Weights and Measures (Packaged Commodities)Rule (hereafter referred to as SWM (Packaged Commodities)Rules. It was also alleged that certificate of verification of liquor was not displayed in the bar counter where sale of liquor was carried out and non exhibition of the certificate is in violation of Section 25 of SWM (Enforcement)Act. On 2/7/1993 the Inspector sent a notice to show cause why action shall not be taken. A reply was sent to the effect that the liquor was manufactured in France and there was no short delivery and the certificate as provided under Section 25 of the Act was displayed in the hotel and the cigarette was served in a plate over which doily paper and napkins are placed and along with cigarette match box specially made for the hotel are also served and it was for all the service Rs.13/- was collected and there was no violation of the provisions of the Act or the Rules. Petitioners were then informed that the explanations are not satisfactory and if they are ready, the offences could be compounded by paying fine. Petitioners challenged the said action as illegal as the order is non speaking one in Crmc 996/09 3 O.P.10761/1993. The O.P. was allowed. It was challenged in writ appeal 162/2004 which was disposed directing respondent to reconsider the explanation and to pass a speaking order. Thereafter Annexure-2 order was passed on 17/9/2003. Petitioners in Annexure-3 dated 20/10/2008 informed the Inspector that the rejection of the explanation was not correct and under the amended SWM (Packaged Commodity) Amendment Rules, an error upto 4.5 ml is permissible and hence short delivery of 4 ml is not an offence under Section 39(2). It was contended that the liqueur was sold in a 60 ml bottle and the measurement by the Inspector was faulty. It was also contended that certificate of verification was displayed in a conspicuous place of the premises and certificate need not be displayed at every place in the premises and therefore, there is no violation of Section 25 of SWM (Enforcement) Act which is punishable under Section 39(2). It is also contended that sale of cigarette in the Star Hotel for more than the maximum retail price is not violation of the rules as held by the Delhi High Court in Civil Writ petition No.6517/2003, and hence they cannot be prosecuted. Annexure-A4 complaint was thereafter lodged alleging Crmc 996/09 4 that accused committed offences under Section 39(2)(1) and Section 25 of SWM (Enforcement) Act and Rule 23 (2) of SWM (Packaged Commodities) Rules. 2. This petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings contending that continuation of the proceedings is only an abuse of process of the court. It is contended that under Section 25 of Standards of Weights and Measures (Enforcement) Act certificate is to be displayed in a conspicuous place in the premises where such weight or measure is being or is intended or likely to be, used in any transaction, and when prosecution has no case that certificate was not displayed at any place in the premises and instead when the only case is that it was not displayed at the place where the liquor was served, there is no violation of Section 25 and even if petitioners are to be tried, they cannot be convicted for violation of Section 25 or under Section 39(2) of the Act. Relying on the decision of the Delhi High court in Civil writ petition No.6517/2003, petitioners would contend that what was served for Rs.13/- was not the packet of cigarette alone, as it was served in a plate with match box, doily paper and Crmc 996/09 5 napkin and hence for collecting amount more than the maximum retail price in a Star hotel inclusive of the services rendered, no offence as alleged is committed. Petitioners would contend that in spite of the specific defence in Annexure-A3 that what was served was not 56 ml poured from a bottle but 60 ml bottle, it was not denied in the complaint and the mahazar also does not disclose that it was in fact poured from a bottle and served and so provisions of SWM (Packaged Commodities) Rules will apply and as provided under schedule 2 thereunder, a deficit upto 4.5 ml is a permissible error when sold in a bottle of 50 to 100 ml. and when the alleged shortage is only 4 ml, even if petitioners are to be tried, there is no likelihood of a conviction and as the incident occurred in 1993, it is not in the interest of justice to continue the prosecution. 3. Learned Public Prosecutor argued that what was sold at the hotel was not a 60 ml bottle but 60 ml liquor poured from a bottle containing 70 ml and it is clear from the statement of the concerned witness recorded under Section 161 of Code of Criminal Procedure and therefore, permissible error provided Crmc 996/09 6 under Schedule 2 of SWM(Packaged Commodities) Rules has no application and as what was sold was with a shortage of 4 ml and the offence under Section 39(2) is attracted. Learned Public Prosecutor also argued that when the maximum retail price printed in the packet of cigarette sold was inclusive of taxes is Rs.9.85/- and Rs.13/- was collected in violation of Rule 23(2) of SWA (Packaged Commodities) Rules as price exceeding the maximum retail price was collected and therefore, there is violation of Rule 23(2) punishable under Rule 39 of SWM (Packaged Commodities) Rules. It was also submitted that as certificate was not displayed at the place where the liquor was sold, there was violation of the provisions of Section 25 of SWM (Enforcement)Act and in any case, all these aspects are matters for evidence and cannot be decided in a petition filed under Section 482 of Code of Criminal Procedure. 4. Section 25 of SWM(Enforcement) Act, 1985 provides for display of certificate of verification. It reads; “25. Display of certificate of verification.--Every certification of verification granted under this Act shall be displayed in a Crmc 996/09 7 conspicuous place in the premises where such weight or measure is being, or is intended or likely to be, used in any transaction or for industrial production or for protection.” 5. As rightly canvassed by the learned counsel appearing for the petitioners Section 25 provides for displaying “in a conspicuous place in the premises where such weight or measure is being or likely to be used” and not at every places where the weight or measure is being used or likely to be used. The one case in the complaint as well as in the mahazar prepared by the Inspector is that the certificate was not displayed at the bar counter where liquor was sold and not that the certificate was not at all displayed in any conspicuous place in the premises of the hotel. When it is not disputed that a certificate was displayed in a conspicuous place in the premises of the hotel, though not exactly at the place where the liquor was served, it cannot be held that there is violation of Section 25 of SWM (Enforcement) Act. 6. Sub Rule 2 of Rule 23 of SWM (Packaged Commodities) Rules, 1977 provides that no retail dealer Crmc 996/09 8 or other person including manufacturer, packer and wholesale dealer shall make any sale of any commodity in packaged form at a price exceeding the retail sale price thereof. Allegation is that packet of Wills Filterpiped Cigarette, though it is declared that maximum retail price inclusive of all taxes is Rs.9.85/- was sold for Rs.13/- which is excess of Rs.3.15/- and therefore, there is violation of Rule 23 (2), which is punishable under Section 39 of the SWM (Enforcement) Act, 1985. Annexure-A4 mahazar shows that cigarette packet was sold, as per bill No.15157, for Rs.13/- which is in excess of Rs.3.15/-. Question is whether Rs.13/- collected for a packet of cigarette is the price of the cigarette alone or the price of cigarette plus charge for the service rendered at the Star Hotel. Learned counsel appearing for the petitioners submitted that what is being delivered at the Star Hotel when a packet of cigarette is purchased, is not the packet of cigarette alone but a match box, napkin and doily paper and in such circumstances, it cannot be said that the amount collected is in excess of maximum retail price. 7. Identical question was considered by the Crmc 996/09 9 Delhi High court in civil writ petition No.6517/2003. That was a case where mineral water was sold in excess of maximum retail price from a Star Hotel. Question considered was whether the sale would amount to sale in violation of the provisions of SWM (Enforcement) Act or Rules. Following the decisions of the Apex court in Northern India Caterers (India) Ltd. v. Lt.Governor of Delhi (1979 (1) SCR 557 and K.Damodarasamy Naidu & Bros. v. State of T.N (2000 (1) SCC 521) it was held that “what the customer pays for is a right to satisfy his appetite by the process of destruction and what he thus pays for includes more than the price of the food as such, which includes all that enters into the conception of service and with it no small factor of direct personal service” and in such circumstances collecting price above the maximum retail price printed on the packet in a Star Hotel does not violate the provisions of SWM (Packaged Commodities) Rules. 8. It was held, “In the above analysis I hold that charging prices for mineral water in excess of MRP printed on the packaging, during the service of customers in Crmc 996/09 10 hotels and restaurants does not violate any of the provisions of the SWM Act as this does not constitute a sale or transfer of these commodities by the hotelier or Restaurateur to its customers. The customer does not enter a hotel or a restaurant to make a simple purchase of these commodities. It may well be that a client would order nothing beyond a bottle of water or a beverage, but his direct purpose in doing so would clearly travel to enjoying the ambience available therein and incidentally to the ordering of any article for consumption.” I am in agreement with the decisions of the Delhi High Court. When what was paid by the customer for the packet of cigarette is not the price of a packet of cigarette alone and it includes the satisfactory service rendered to him and enjoyment of the ambience. For the reason that the price collected is more than the maximum retail price petitioners cannot be prosecuted for violation of the provisions of Sub Rule 2 of Rule 23. 9. Then the question is whether shortage of 4 ml of Dubbonet foreign liquor delivered would attract Crmc 996/09 11 violation of provisions of Section 39(2) of SWM (Enforcement) Act. Argument of the learned counsel appearing for the petitioners is that as the article was sold in a packed bottle, when under schedule 2 of the SWM (Packaged Commodities) Rules, 1977 maximum permissible error, for a declared quantity having a measurement of 50 ml to 100 ml is 4.5 ml, the alleged deficit of 4 ml. cannot be said that there was violation of the provisions and punishable under Section 39(2) of SWM (Enforcement) Act. 10. Sub Section 2 of Section 39 of SWM (Enforcement) Act provides that whoever in selling any article or thing by weight, measure or number, or causes to be delivered to the purchaser any quantity or number of that article or thing, less than the quantity or number contracted for and paid, shall be punished for the sentence provided thereunder. Allegation is that what was purchased by the customer was 60 ml of dubbonet liquor and what was served was 4 ml lesser than 60 ml and therefore, an offence under Section 39 (2) is committed. If the dubbonet liquor was sold as a packed bottle, as provided under schedule 2 of SWM (Packaged Commodities) Rules, as quantity of liquor Crmc 996/09 12 sold is 60 ml, deficit of 4 ml is definitely a permissible error and in that case, no offence under Section 39(2) is attracted. Question is whether it was sold as a packed bottle or was poured from a bottle and sold. 11. Learned Public Prosecutor argued that statement of the relevant witness recorded under Section 161 of Code of Criminal Procedure shows that when 60 ml of liquor was demanded, it was poured from a 70 ml bottle and 60 ml was measured and served and hence provisions of SWM (Packaged Commodities) Rules is not applicable and as there is a deficit of 4 ml, an offence under Section 39(2) of SWM (Enforcement) Act was committed and therefore, it cannot be quashed. Learned counsel appearing for the petitioners pointed out that Annexure-A4 mahazar does not show that 60 ml sold under bill No.15159 was poured from a 70 ml bottle and served. It would only show that 60 ml Dubbonet liquor which was sold was seized and when it was measured with the standard measurement, it was found that there is a deficit of 4 ml. The mahazar does not show that the liquor was measured by the officer, using a measurement apparel brought by him. Crmc 996/09 13 It also does not disclose that it was taken from the Hotel. Whatever it be, from the mahazar it is not clear that the liquor served was poured from a bottle containing more liquor and was not sold in a packed bottle. It was also pointed out by the learned counsel appearing for the petitioners that neither the bottle nor peg measure, which was used at the Hotel was seized. It was also argued that as the liquor is having high density, possibility of a portion of the liquor remaining in the bottle from which it was measured cannot be ruled out and if so, deficit of 4 ml need not a real shortage. I find force in the submission. It is more so, because when the Manager of Taj Hotel by Annexure-A3 reply specifically contended that liquor was not served by pouring from a bottle but was sold as a 60 ml packed bottle, that fact was not denied in Annexure-A4 complaint. Moreover, when the bottle and the peg measure used for measurement were not seized and possibility of a portion of the liquor having high density still remaining in the glass/bottle in which it was served cannot be ruled out. In the light of, even if petitioners are to be tried in the case, there is no likelihood of conviction. On the Crmc 996/09 14 materials available, it cannot be said that what was sold is not a bottle but liquor poured from a bottle. If that be so, as provided under schedule 2 of SWM (Packaged Commodities)Act, deficit of 4 ml is within the permissible error. If so, prosecution for the offence under Section 39(2) will not result in a successful prosecution. In such circumstances, it is not in the interest of justice to continue the prosecution. Petition is allowed. S.T.3216/2008 on the file of Judicial First Class Magistrate-I, Kochi is quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj.