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TMI Blog2016 (9) TMI 351X X X X Extracts X X X X X X X X Extracts X X X X ..... [2007 (3) TMI 336 - HIGH COURT OF DELHI] has been followed - continuance of prosecution against the petitioners can only be vexatious – petition allowed – decided in favor of petitioner - Crl. MC. No. 1267 of 2013 - - - Dated:- 22-3-2016 - MR. RAJA VIJAYARAGHAVAN V J. Smt. Sumathy Dandapani, Sr. Advocate and Shri Millu Dandapani Advocate for the Petitioners. Sri. Baby Thomas Public Prosecutor, for the Respondent. ORDER: 1.Whether charging prices in excess of MRP (Maximum Retail Price) printed on the label of Beer served to guests in a Bar Hotel, operating on the strength of an FL3 Licence issued by the Excise Department, will attract the penal provisions of the Legal Metrology (Packaged Commodities) Rules 2011, is the question that is to be answered in this petition filed under S.482 of the Code. 2.The prosecution case as is revealed from the complaint laid before the court below runs thus: An inspection was conducted on 22.12.2011 by the second respondent in the premises of M/s Hotel Savoy Bar at Kozhikkode. He placed an order for 3 portions of 90 ml- MC Whisky, 1 portion of 90 ml -MC Brandy, one bottle of Beer, snacks and a soda and on his request ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the amenities incidental to that service the hotelier serves meals at stated hours, the transaction is not a sale. The learned counsel also relied on the Judgment of the Delhi High Court in The Federation of Hotels and Restaurants Association of India and others etc. V. Union of India and others (AIR 2007 Delhi 137) and also the unreported judgment of this Court in Crl. M.C. No 996 of 2009 to advance his contentions. According to the learned counsel the prosecution of the petitioners on the strength of unsustainable allegations is liable to be interfered with by this Court and quashed at the threshold itself by exercising the powers under S 482 of the Code. 5.Au Contraire, the learned public prosecutor would vehemently oppose the contentions of the learned counsel and would submit that the uncontroverted allegations contained in the complaint would prima facie make out a case against the petitioners. According to the learned Public prosecutor, the petitioner has admitted that he has sold Beer much in excess of the MRP and that being the case, it would not be in the interest of justice to order premature termination of the prosecution. 6.I have heard the rival submissions. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of individuals or any other consumer; Rule 2 (m) - retail sale price means the maximum price at which, the commodity in packaged form may be sold to the ultimate consumer and the price shall be printed on the package in the manner given below; Maximum or-Max. retail price Rs............ /Rs ....... inclusive of all taxes or in the form MRP Rs .........../ Rs ....... .inclusive of all taxes after taking into account the fraction of less than fifty paisa to be rounded off to the preceding rupees and fraction of above 50 paise and up to 95 paise to the rounded off to fifty paise; 13. In other words, retail dealer is a dealer in relation to any commodity in packaged form means a dealer who sells such packages to the customer and includes a wholesale dealer. Retail Sale means, in relation to a commodity, sale, distribution or delivery of such commodity through retail sales shops, agencies or other instrumentalities by an individual or a group of individuals or any other consumer. Retail sale price means the maximum price at which the commodity in packaged form may be sold and the mode in which the price is to be printed in the package has also been defined. 14. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Corporation for retail sale of liquor in bottles through their various outlets in the State. In other words retail sales , in the strict meaning of the phrase can be carried out in the State of Kerala only by these Government owned Corporations. 17.In this context reference is to be made to some of the decisions cited by the learned counsel to advance the contention that the nature of service conducted in a Hotel or Restaurant can never be categorized as a retail sale will be apposite. Though that same was rendered in a different context, I am of the view that, the principles laid down therein would shed ample light on the question in controversy in the instant case as well. The character and nature of the service provided by hotels has been succinctly stated by a Constitution Bench of the Hon'ble Supreme Court in State of Himachal Pradesh and others V. Associated Hotels of India Ltd., [AIR 1972 SC 1131]. 13. What precisely then is the nature of the transaction and the intention of the parties when an hotelier receives a guest in his hotel? Is there in that transaction an intention to sell him food contained in the meals served to him during his stay in the hotel? It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The bill prepared by the hotelier is one and indivisible, not being capable by approximation of being split up into one for residence and the other for meals. No doubt, such a bill would be prepared after consideration of the costs of meals, but that would be so for all the other amenities given to the customer. For example, when the customer uses a fan in the room allotted to him, there is surely no sale of electricity, nor a hire of the fan. Such amenities, including that of meals, are part and parcel of service which is in reality the transaction between the parties. (Emphasis supplied ) 18.Taking cue from the nature of the licence issued by the excise authorities to the petitioner and the ratio of the law laid down by the Apex Court, it is indefensible that the transaction that takes place inside the hotel / restaurant is one of service in the performance of which alcohol or meals or both are served as part of and incidental to that service to the customer, who may have been residing in the said hotel or one who had visited the hotel for having meal or alcohol. The amenities provided to the customer is regarded as essential even as per the express terms of the FL3 licenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... competent authority . 20.In M/s. Northern India Caterers India Vs. Lt. Governor of Delhi (AIR 1978 SC 1591) the principle laid down in Associated Hotels of India (supra) was reiterated and it was held that the service of meal to casual visiors in a restaurant is not taxable as a sale whether a charge is imposed for the meal as a whole or according to the dishes separately ordered. A review petition was filed to review the judgment in Northern India Caterers India (supra) and the same was dismissed by the Apex Court after elaborately hearing the same. Justice V.R. Krishna Iyer J, speaking for a three judge bench, while dismissing the review petition, in his inimitable words has stated thus : It sometimes happens that high-style restaurants or residential hotels render a bungle of special services like ball dance, rare music, hot drinks, 'viands of high regale', glittering crockery, regal attention or 'bikini' service and even sight-seeing transport or round-thecity visits, shoe-shining, air-conditioning, massage in the room etc., on a consolidated sum. You cannot dissect the items or decode the bill to discover separately the component of goods sold. This sit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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