STATE Vs. V N SOOD AND FIVE ORS

JUDGEMENT

(1.) This appeal, preferred against the acquittal of the respondents by the learned Judicial Magistrate 1st Class, New Delhi (Shri A. S. Dhugga), raises an interesting question of construction of the U. P. Entertainment and Betting Taxes Act, 1937 (hereinafter called the Act), extended to the Union Territory of Delhi vide Government of India, Ministry of Home Affairs Notification No. 20/2/50-Judl., dated 2nd April, 1950. The facts, namely undisputed as they transpire from the evidence of the prosecution itself, may be briefly noticed.

(2.) Shri Bodh Raj (P.W. 3), Entertainment Tax Inspector, Delhi visited, on 15-11-1968 at about 10 P.M., the Lido Restaurant run by the respondents, along with Shri M. M. Bajaj (P-W. 5); this was done as per the instructions of the Entertainment Tax Officer. They stayed in the restaurant till 11.15 P.M. There were two cabaret programmes by lady artistes and the band was played by four or five persons. The minimum charges for dinner and tea, when there were cabaret programmes, were Rs. 10.00 and Rs. 5.00 respectively, per head. Public Witness 3 contacted the then Manager V. N. Sood (who was now said to be away in America) and recorded his statement (mark B). He also took one cash memo (mark C) which showed that the total amount charged was Rs. 70.00 for seven persons plus sales tax; he also took one menu card. At the time of P. W. 3's visit 72 persons were taking dinner and Rs. 10.00 per head were charged from each person as the minimum charge which each of them had to pay. P. W. 3 stated that there was no (other) charge for entry into the restaurant except for the total minimum adjustable towards food. In other words, if it was tea a minimum of Rs. 5.00 was charged; if it was dinner it was Rs. 10.00 per head. If, however, any person consumed food of the value of metre than Rs. 5.00 or Rs. 10.00 , as the case may be, he would have to pay the excess. Advertisements were made in newspapers announcing the cabaret show etc. during tea time and dinner time. Mark A is the advertisement dated 15-11-1968 which announced the cabaret show commencing from 7 P.M. and at 10 P.M. daily; patrons were requested to take their seats at 6.30 P.M. and 9.30 P.M., respectively. Shri M. M. Bajaj (P. W. 5) had also stated that he was told by the customers that it was within their knowledge that the management had affixed a board near the gate of the entrance regarding the minimum charge being Rs. 10.00 for a dinner- cum-cabaret programme". He also explained the procedure which was that the persons desirous of seeing the cabaret programme at the Lido restaurant occupied a table and placed an order for food and in addition to the food which they consumed they also witnessed the cabaret performance and listened to the band; at the end a bill was presented to the customer and he had to pay according to the bill. M. S- Aggarwal (a partner) of the Lido restaurant was examined under section 342 Criminal Procedure Code .; he stated in answer to question No. 3 as follows :

(3.) Section 2(3) of the Act defines "entertainment" as including "any exhibition, performance, amusement, game or sport to which persons are admitted for payment". The charging section 3 reads as follows :