101-NLR-NLR-V-70-M.-M.-JALALDEEN-Appellant-and-P.-A.-S.-JAYAWARDANE-Food-and-Price-Control-Ins.pdf
476
Jalaldeen v. Jayawardane
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1968Present: H. N. G. Fernando, C.J.M. M. JALALDEEN, Appellant, and P. A. S. JAYAWARDANE.(Food and Price Control Inspector), Respondent8. C. 1163167—M. C. Kegalle, 68375
Contol of Prices Act—Charge of selling 14 oz. tin of Farm Brand Condensed Milk atexcessive price—Proof of weight of tin unnecessary—Burden of proof—EvidenceOrdinance, s. 114,
A Price Control Order fixed the maximum retail price of a 14 oz. tin ofcondensed milk. If a tin is sold bearing a label which specifies the weightof the contents as 14 oz., the prosecution need not, in the case of an allegedcontravention of the Price Order, adduce proof of the actual weight of thecontents of the tin. The statement as to weight on the label constitutes anadmission as to weight by the seller.
Piyadasa v. Jayatileke (70 N. L. R. 475) not followed.
H. >T. G. FERNANDO, C.J.Hdalrteen .Jayawaritane4*7
Appeal from a judgment of the Magistrate’s Court, Kegalle.
Colvin R. de Silva, with P. D. TP. de Silva and I. S. de Silva, for theAccused-Appellant.
D. Ghirusuxtmy, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
April 22, 1968. H. N. G. Fernando, C.J.—
The charge in this case, of which the appellant vras convicted, was thathe sold a 14 oz. tin of Farm Brand Condensed Milk for Re. 1, a price inexcess of the maximum retail price of 90 cents for the said tin fixed by aPrice Control Order published in Gazette No. 14,752/2 of June 9, 1967.I would ordinarily have dismissed the appeal without stating reasons, butfor the statement of Counsel that the point of lawr •which Counsel raisedhas been recently upheld by this Court in S.C. 1132/67 (S.C. Minutes of31st March,1968 1). The point, briefly stated, is that there was no evidencetendered by the prosecution to prove that the tin of milk sold by theappellant contained 14 oz. of condensed milk, and that in the absence ofsuch evidence the appellant could not have been lawfully convicted ofthe offence charged. It is necessary first to refer to the relevant part ofthe Order alleged to have been contravened in this case :—
“ By virtue of the powers vested in the Controller of Prices (Food) by■section 4 of the Control of Prices Act (Chapter 173) I, PinnaduwageArthur Silva, Controller of Prices (Food), do by this Order— (i) * * * * 6
(i)fix with immediate effect the prices specified in Columns 2 and 3 ofthe Schedule hereto to be the maximum retail prices per tin (orbottle) respectively, above which the brand of milk food specified
in the corresponding entry in Column 1 of the Schedule shall not be
sold within the Island of Ceylon ;
direct that for the purpose of this Order—
(rt) any sale of any quantity of an article specified in Column 1 of theSchedule for the purposes of resale or any sale of an articlespecified in Column 1 of the Schedule in a quantity of one dozentins (or bottles) or more at a time shall be deemed to be a saleby wholesale ;
(6) any sale of any quantity of an article specified in Column 1 ofthe Schedule loss than one dozen tins (or bottles) at a time for thepurpose of consumption or use shall be deemed to be a sale bj'retail ; ”
1 (790S) 70 N. L. R. 470.
478
H. X. G. FERNAND©. C'.J.—-Jaloldeen >'. Jayatvardarm
The Schedule to the Order contains a list of milk foods, and of thecorresponding wholesale prices and retail prices fixed by the Order, and apart of the Schedule is here re-produced :—
« SCHEDULE
Column 1DescriptionCondensed Milk :
Milk Maid Condensed Mi lieTea Pot Condensed MilkRed Ruby Condensed MilkIdeal Evaporated MilkFarm Brand Condensed Milk
Column 2Maximumwholesaleprice per dozen
tins (or bottles)
Bs. c.
14oz.tin1135.
14oz.tin1085.
14oz.tin1035.
14£oz.tin1175.
14oz.tin1020.
Column 3Maximumretail
price per tin
(or bottle)
Bs. c.
1 00 95
90
050 90 ”
The Order fixes, in respect of each brand of milk, a wholesale price, anda retail price ; and we are here concerned only with the fixation of retailprices. Paragraph (i) of the Order fixes the prices specified in column 3 ofthe Schedule as the maximum retail prices per tin for the different brandsof condensed milk specified in column 1, and paragraph (ii) (b) of theOrder provides that the sale of any quantity of an article specified in
Column 1 of the Schedule less than one dozen tinsshall be deemed
to be a sale by retail.
There is thus no reference in the body of the Order to the quantity ofcondensed milk sold in any case, and the Order fixes retail prices onlyfor tins of milk. The description of the “ controlled ’’ tins is contained inColumn 1 of the Schedule, the appropriate description for present purposesbeing the last in the part of the Schedule which has been re-producedabove, namely “Farm Brand Condensed Milk 14 oz. tin and the retailprice fixed in Column 3 for such a tin is 90 cents.
Legal considerations apart, what then was the int ention of the Controllerof Prices when he made the Order, and what should and did a retailer andmembers of the public understand by this Order ? Common sense canfurnish only one answer, namely that 90 cents is the maximum price fora 14 oz. tin of Farm Brand Condensed Milk. Thus the “Controlledarticle ” for present purposes is simply the 14 oz. tin of Farm BrandCondensed Milk.
The Schedule to this Price Control Order specifies 16 brands ofCondensed Milk, and refers in all cases but one to 14 oz. fins. On anycommon sense view, why did the Controller in 15 of the 16 cases refer to14 oz. tins ? Was it because the Controller knew that each and everytin available for sale in Ceylon had been actually weighed by someappropriate authority and found to contain 14 oz. ? Was it becauseevery retailer of condensed milk is supposed to weigh each tin before
H. N. G. FERNANDO, C.J.—Jalaldeen v. Jayauardane
479
he exposes it for sale, and because he Avas to be free to sell a tin at anyprice if he found on weighing that in fact the tin contained, not exactly14 oz. of condensed milk, but something less or something more than14 oz. ? Or was it because all 15 brands of condensed milk are hi factmarketed in this bearing labels stating that the nett weight of thecontents, or the gross weight of the tin is 14 oz. ? It seems to me thatcommon sense affords only the answer that the Controller, the dealerand the public must know that the Order fixed prices for tins labelled14 oz. tins.
The judgment in the recent case proceeds on the basis that the statementin the label of a tin, as to the weight of the contents, is hearsay, and there-fore is not evidence of the actual weight. If that be so, then the statementson the label Farm Brand ”, and “ Condensed Milk ”, are equally hearsay,and there is thus no proof either that the accused sold Condensed Milkor that what he sold was the brand referred to in the Schedule to thePrice Order as “ Farm Brand ”. Accordingly a prosecution cannot succeedunless there is other evidence to prove (a) that the tin contained condensedmilk, (b) that it is of the Farm Brand and (c) that the contents weigh14 oz. I myself cannot think of any means by Avhich there can be proofthat milk is of a particular brand; for all Ave know, the composition ofdifferent brands may be identical.
It is perfectly clear in my opinion that the Order was intended to applyto the sale of tins identifiable by the labels which they bear, and thatreferences in the Order to the three matters mentioned at (a), (6) and (c)above were intended to distinguish, through the labelling, the differentvarieties of condensed milk ordinarily on sale. Particularly with regardto weight, it is absurd to suppose that the Controller of Prices knew theactual Aveight of all tins exposed for sale, or that he expected a dealerto know' for himself the weight of every tin he sells. As to the actualAveight of the contents of a tin, there are three possibilities :—
that the Aveight is 14 oz. ;
that the Aveight is less than 14 oz. ;
that the Aveight is more than 14 oz.
In the case (1), there is a clear contravention if the tin is sold at morethan the Controlled price. In the case (2), the Order surely intended thisto be a contraA'ention : if the tin contains less than 14 oz., the sale of thetin at a price higher than the controlled price is a more seriouscontravention than is the first case. The third possibility, that thetin might contain more than 14 oz., is contrary to common sense.The presumption in Section 114 of the Evidence Ordinance, as to “ theexistence of any fact Avhich the Court thinks likely to have happened,
regard being had to the common course of human conductand
public and private business ”, must be applied in this context. I myselfhave never enjoyed the pleasant surprise of finding that the quantityof any article sold in a tin or bottle or packet is greater than the quantity
480H. N. G. FERNANDO. C.J. -Jalaldeer» c. Jayawardane
stated iii the label. It would be absurd to suppose that manufacturersof condensed milk adopt any uncommon course of conduct or businesspractice, and that they understate in their labels the weight of milkwhich they sell. The only result, therefore, which actual weighing inthese cases could achieve is to establish, either that the contents weigh14 oz. or that they weigh less than 14 oz. But each such result wouldmean that the seller contravened the Order. That being so, any actualweighing would serve no purpose.
I hold also that when a retailer sells an article bearing a label whichspecifies the quantity of its contents, e.g., “ 14 oz. condensed milk ”,“£lb. butter” or “ 20 cigarettes”, he adopts the specification in thelabel, and admits by his conduct that the weight or number stated onthe label is the weight or number of that which he sells. That admissionis prim a facie evidence of the weight or number of the contents withoutfurther proof. If it is the seller’s case that the weight or number wasin fact different, the burden lies on him to prove the actual weight ornumber of the contents.
For these reasons, I must express firm disagreement with the judgmentto which I have referred. The appeal is dismissed.
Appeal dismissed.