Philip Mathew v. State of Kerala and Assistant Controller, Legal Metrology

Crl.MC No.2272/2014 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN MONDAY, THE 3[RD] DAY OF JULY 2023 / 12TH ASHADHA, 1945 CRL.MC NO. 2272 OF 2014** **(AGAINST ST NO.2750/2013 ON THE FILE OF ADDL.CHIEF JUDICIAL** **MAGISTRATE'S COURT(ECONOMIC OFFENCE)** ## **PETITIONER:** PHILIP MATHEW, DIRECTOR, MAY FLOWER HOTELS (P) LTD. PROPRIETOR HOTEL PRESIDENCY, ERNAKULAM, KOCHI-18. BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI ## **RESPONDENT/COMPLAINANT:** 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN:682031. 2 ASSISTANT CONTROLLER LEGAL METROLOGY, ERNAKULAM. BY ADVS. PUBLIC PROSECUTOR PUBLIC PROSECUTOR ## **OTHER PRESENT:** SR.PP.RENJITH GEORGE **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27.06.2023, THE COURT ON 3/7/2023 PASSED THE FOLLOWING:** Crl.MC No.2272/2014 2 ## **V.G.ARUN J.** ------------------------------------- Crl.M.C No.2272 of 2014 **---------------------------------** Dated this the 3[rd] day of July 2023 ## **O R D E R** The petitioner is the Director of May Flower Hotels Private Ltd.and the proprietor of Presidency Hotel, Ernakulam. On 18/12/2012, the Assistant Controller, Legal Metrology visited the bar in the hotel and placed order for 3 pegs of Mansion House Brandy, Water and Soda. Accordingly, he was served with 3 pegs of brandy in three glasses, soda in a decanter, water and complementary snacks. As directed by the Assistant Controller, the bill for the items served, amounting to Rs.318/-, was also given. After receiving the bill, the Assistant Controller revealed his identity and measured the brandy and poured it into a bottle and declared that measurement shown is 176 ml., whereas 3 pegs is 180 ml. With respect to the soda served along with liquor, it was alleged that instead of the MRP of Rs.7, the hotel was collecting Rs.15/-. The officer prepared a mahazar obtaining the measurement of the Brandy and seizure of the soda. Thereafter, the petitioner was issued with a show cause notice alleging violation of the provisions of the Legal Metrology Act,2009 Crl.MC No.2272/2014 3 (the Act for short) and the Legal Metrology(Packaged Commodities) Rules, 2011(the Rules for short). Not being satisfied with the petitioner's reply, the second respondent filed Annexure A1 complaint alleging commission of offences under Sections 12,15,18,30,31 and 36 of the Act and Rules 6(1),6(2), 18 and 33 of the Rules. Based on the complaint, cognizance was taken and the case numbered as ST No.2750/2013 on the files of the Additional Chief Judicial Magistrate Court (Economic Offences) Ernakulam. The Crl.M.C.is filed seeking to quash Annexure A1 complaint and further proceedings thereon. 2. Senior Advocate George Cherian, appearing for the petitioner, contended that the procedure adopted by the second respondent is patently illegal and at any rate, the offences are not attracted. It is contended that in the mahazar, the manner in which the three pegs was measured is not stated and the measuring glass and measured liquor were not seized. Under identical circumstances, this Court has held the procedure to be illegal, as per the judgment in **R.Pasupathy v. The Inspector, Legal Metrology** ( **Crl.M.C.No.996/2009)** . 3. As regards the allegation that excess price was collected for the soda, the Senior Counsel pointed out that the issue is covered by the decision of the Delhi High Court in **W.P.No.6517/2003** and that of the Supreme Court in **Federation of Hotel and Restaurant** Crl.MC No.2272/2014 4 **Association of India v. Union of India and Others** ( **2018 (2) SCC 97)** . The further contention is that the offences under Sections 15 and 31 are not attracted, since the petitioner and other accused were under no obligation to produce documents without the 2[nd] respondent asking for it. 4. According to the learned Public Prosecutor, even if for the sake of argument, it is admitted that offences under Sections 12 and 30 pertaining to short measurement of liquor are not attracted, that cannot result in the proceedings being quashed, in view of the other violations and offences alleged. 5. As contended by the Senior Counsel, the manner in which the liquior was measured is not stated in the mahazar. The measured liquor and the standard measure used were also not seized. In this context it will be beneficial to refer the following paragraph in Pasupathy's case. “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 Crl.MC No.2272/2014 5 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. 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 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”. ## 6. I am in respectful agreement with the above observations Crl.MC No.2272/2014 6 and findings. When the peg measure and the measured liquor are not seized and produced in court, prosecution for the offences under Sections 12,15 and 30 of the Act will only be a futile exercise. 7. The question whether star rated hotels can fix rates in excess of MRP for soda, Mineral water, Beverages, etc. is covered by a series of decisions categorically holding that excess price can be collected for the service and facilities provided to the customer. 8. Even though an allegation that the bottle of soda seized did not contain the specification mandated under Rule 6 of the Legal Metrology (Packaged Commodities) Rules is raised, from the seizure receipt submitted along with the complaint it can be seen that the seized soda is Bagpiper manufactured by United Spint. Surprisingly, the manufacturer who is having the primary responsibility of providing the details stipulated in Rule 6, was not arrayed as an accused. Further, the allegation regarding violation of Rule 6 is conspicuously absent in the mahazar. Being so, the petitioner cannot be prosecuted for that offence also. 9. In such circumstances, there is no possibility of the petitioner being convicted of any of the offences alleged against him and continuance of the criminal proceedings amounts to an abuse of process of court. For the aforementioned reasons, the Crl.M.C is allowed. All Crl.MC No.2272/2014 7 further proceedings in SC No.2750/2013 on the files of the Additional Chief Judicial Magistrate Court (Economic Offences), Ernakulam, arising from Annexure A1 complaint, as against the petitioner, is quashed. Sd/- **V.G.ARUN JUDGE** dpk Crl.MC No.2272/2014 8 ## **APPENDIX OF CRL.MC 2272/2014** PETITIONER ANNEXURES ANNEXURE A1: TRUE COPY OF THE COMPLAINT ST 2750/13 FILED BY THE SECOND RESPONDENT BEFORE ADDITIONAL CJM COURT (E.O) ERNAKULAM. ANNEXURE A2: TRUE COPY OF THE COMPLAINT DATED 3.1.13 TO THE CONTROLLER BY THE PETITIONER. ANNEXURE A3: TRUE COPY OF THE BILL DATED 329.12.12 OF AVENUE REGENT, ERNAKULAM. ANNEXURE A4: TRUE COPY OF THE BILL DATED 29.12.12 ISSUED BY GOKULAM PARK, ERNAKULAM. ANNEXURE A5: TRUE COPY OF THE BILL DATED 20.12.12 ISSUED BY BOLGATTY PALACE FOR SODA. ANNEXURE A6: TRUE COPY OF THE BILL DATED 29.12.12 ISSUED BY LE MERDIAN, ERNAKULAM. ANNEXURE A7: TRUE COPY OF THE BILL NO. 6030 DATED 29.12.12 OF RAMADA RESORT, KOCHI. ANNEXURE A8: TRUE COPY OF THE BILL NO.6032 DATED 29.12.12 ISSUED BY RAMADA RESORT.