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 a bill was issued for the same. Measurements were made in respect of Whisky and Brandy supplied to the complainant and the same revealed that it was in accord with the order placed. In respect of the beer purchased by the Senior Inspector, it was revealed that the accused had charged a sum of Rs. 85 /- instead of Rs.55/-, which was the MRP printed on the bottle in terms of Section 18 of the Legal Metrology Act, 2009. According to the complainant, charging excess price than the declared maximum retail price on the package attracts an offence under Rule 18(2) of The Legal Metrology (Packaged Commodities) Rules, 2011 ("L.M.P.C. Rules" for brevity) read with S. 18 of the Legal Metrology Act 2009 ("LM Act" for brevity) and punishable under section 32(2) of the L.M.P.C. Rules. The aforesaid proceedings are under challenge in this petition.

3. I have heard the learned counsel appearing for the petitioners as well as the learned Public Prosecutor.

4. The learned counsel appearing for the petitioners would submit that M/s Hotel Savoy Bar is a hotel which was being run on the strength of a Foreign Liquor-3 (FL3) licence issued by the designated authority of the Department of Excise and the terms of licence clearly prohibited them from carrying out any retail sale of the liquor supplied to them exclusively through a Corporation owned by the State. According to the learned counsel, the activity of serving food and alcohol in the premises licenced by the Excise Department cannot by any stretch of imagination brought within the purview of Act 1 of 2010 or the Rules framed thereunder. It is further submitted that the guest who frequents the restaurant and Bar is provided with various amenities which would include comfortable seating, climate conditioning, bearers at the beck and call of the guest, music, snacks, etc., and therefore they are justified in charging for the whole service which is inclusive of the amenities provided and the act of the 2nd respondent in categorizing the same as retail sale of individual items is against all tenets of law. Relying on the Judgment of the Apex Court in State of Himachal Pradesh and others V. Associated Hotels of India Ltd., [AIR 1972 SC 1131], it was argued that the transaction between a hotelier and a visitor to his hotel is essentially a contract of service and where, in the performance of the service and as part of 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