L. T. Z. ABDEEN, Appellant, and A. W. H. WICKREMASINGHE (Food and Price Control

097-NLR-NLR-V-72-L.-T.-Z.-ABDEEN-Appellant-and-A.-W.-H.-WICKREMASINGHE-Food-and-Price-Control-.pdf


SAMER AWICKR AME, J.—Abdcen r. Wickremasinyhe
445
Present: Samerawickrame, J.
L. T. Z. ABDEEN, Appellant, and A. V. H. WICKRE.UASINGHE(Food and Price Control Inspector), Respondent
S. C. 734J67—.U. C. Kalmunai, 28152
Control oj Prices Act—Food Price Order C. 41$—Dried chillies—Sale to a decoy—Applicability of maximum retail price to a consumer.
A sale of a small quantity (half a pound for instance) of dried chillies to a decoyis a sale to which the maximum retail price to a consumer laid down by FoodPrice Order C 418 applies, even though the decoy does not require the chilliesfor consumption but wants them only for the purpose of the raid.
Appeal from a judgment of the Magistrate's Court, Kalmunai.
A. II. C. de Silva, Q.O., with K. C. Kamalanalhan and P. Nagendran.for the accused-appellant.
Mustapha, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
September 2, 1968. Samerawickrame, J.—
This appeal raises the question whether a sale to a decoy of an articlein respect of which Food Price Order No. C 418 had been made under theControl of Prices Act, is one in respect of which a price in excess of themaximum retail price to a consumer may not be paid. The Price ControlInspector who sent the decoy to make the purchase said that he asked thodecoy to buy any price controlled article and that, at that time, he did notrequire chillies for consumption and that he wanted them only for thepurpose of the raid.
The relevant part of Food Price Order No. C. 41S is as follows :—“ I, Mahinda Brian Senana3rake, Deputy Controller of Prices (Food), forthe Island do by this Order—
(i) fix with immediate effect the prices specified in Columns 2 and 3 ofthe Schedule hereto to be a wholesale dealer’s maximum wholesaleprice per hundredweight gross and a retail dealer’s maximum retailprice per pound nett to a consumer, respectively, above which thearticle specified in the corresponding entry in Column 1 of the Scheduleshall not be sold within the Island of Ceylon ;
446
SAMERAWICKRAME, J.—Abdeen v. Wickramasinghe
(ii) direct that for the purpose of this Order—
any sale of any quantitj' of an article specified in Column 1 of theSchedule for the purpose of re-sale, or any sale of an article specifiedin column 1 of the Schedule in a quantity of one hundredweight grossor more at a time shall be deemed to be a sale by wholesale ;
any sale of any quantity of an article specified in Column 1 of the
– Schedule, less than one hundredweight gross for the purpose of
consumption or use shall be deemed to be a sale by retail ;
,■ . .v .
Learned Counsel for the accused-appellant referred me to the fact thatthe price fixed was a maximum retail price to a consumer and also that byreason of paragraph (ii) (b) of the Order, a sale to be deemed to be a sale byretail had to be one for. the purposes of consumption or use. He,accordingly, submitted that upon the evidence in the case, the sale ofchillies to the decoy was not one that was caught up by the provisions ofthe Food Price Order and was, therefore, not one in respect of which thejuice was controlled.
The ordinary 'meaning of the term “wholesale” is selling in bulk orselling of articles in large quantities to be retailed by others. The.ordina'ry meaning of the term “ retail ” is the sale of goods in small quanti-ties. The sale in small quantities ma}' be either to a dealer who buys it forthe purposes ofresaleortoan user of the article. It appears from paragraph(ii) (a) of the Pood Price Order that for the purpose of this Order it wasintended that the sale of small quantities for the purposes of resale shouldbe considered a sale by w holesale. It was apparently for the purpose ofindicating that a retail sale was limited to one made to the user of anarticle that the words “Maximum retail price to a consumer” have beenused. In paragraph (i) of the Order, therefore, the term' c consumer ’has been used as opposed to a dealer, whobuys articles for the purpose ofresale to others for retailing, and in this context, means a person whobuys for his own use or for a purpose other than that of resale. I
I should point out that the Order contains no definition of the terraswholesale ’ and ‘ retail Paragraph (ii) of the Order merely providesthat certainsalcs which may not ordinarily have been sales by wholesaleor sales by retail should, for the purposes of the Order, be deemed to be •such sales. Thus, it provides that the sale of any quantity for the purposeof resale should be deemed to be a sale by wholesale. It has also provisionthat the sale of a quantity of one hundredweight or more shall be deemedto be a sale by wholesale. A doubt may arise in respect of a sale of aquantity slightly less than one hundredweight as to whether it v'as a saleby wholesale or by retail. For example, as wholesale has not been definedand as one of the primary meanings of wholesale is.a sale in bulk, thequestion may arise whether a sale of a hundred pounds of chillies to auser was not a sale by wholesale. Accordingly, paragraph (ii) (6) has the
SAMERAWICICRAME, J.—Abdcen v. Wiekrcmasingke
447
provision that the sale of any quantity less than one hundredweight forthe purpose of consumption or use should be deemed to be a soleby retail.
In this eaL-e, if one takes the view, upon the evidence given by thePrice Control Inspector, that the sale of chillies was not for the purpose ofconsumption or use, paragraph (ii) (b) would not appljr, but the questionwould still remain whether it was sale by retail giving the terms * sale byretail ’ its ordinary meaning. The amount alleged to have been sold to thedecoy was half a pound of dried chillies. This was certainly a sale of anarticle in a small quantity and, in 1113' view, falls within a sale by retail.The decoy was not buying for the purpose of reselling the chillies and onthe view that I have taken as to the meaning which that term lias inparagraph (i), he is a consumer. I am of the view, therefore, that thesale of dried chillies made to the decoy was a sale to which the maximumretail price to a consumer applied and that the accused has charged a pricein excess of the said maximum retail price.
Learned Counsel for the accused-appellant referred to the judgment inBrierley v. Phillips, Brierley v. Brear 1 in which Lord Goddard, C.J.,dealing with the price control order in respect of the sale of eggs said,“ What does ‘ consumer * mean? If I were asked what ‘consumer ’ meantin an order or a statute, the first thing I would direct n^self to do would beto give to the word the ordinary meaning which the English languageattaches to it. The ordinary meaning which the English language wouldattach to that word in relation to an egg is a person who is going toeat the egg or to use it in the process of cooking in his own house. If I buyan egg for the purpose of putting one of ni3r hens on it to hatch it, I do notconsume that egg. I should not have thought anybody could by an3’possibility have said that a person who bu3rs an egg for the purpose ofhatching it is a consumer of an egg. ’*
The provision that he was dealing with prohibits the bujdng or sellingthe eggs where the seller was a producer owning 25 head of poultry or lessto a consumer at a price above the maximum price laid down. Therewere apparently also other provisions which prohibit the producer whoowned 25 head of poultry or less from selling eggs to any person for thepurpose of a catering establishment and any person from buying eggs fromsuch producer for resale to a catering establishment. Price was controlledunder that provision, therefore, in respect of a transaction in which boththe seller and the buyer belonged to different categories and were on theone side a producer owning only 25 head of poultry or less and on theother side a consumer. There were, therefore, indications in thatlegislation that the term * consumer ’ was used in a limited sense andLord Goddard, C. J. held that it must be given its ordinary meaning andthat, therefore, it did not include a person who bought the eggs for the
1 (.1947) 1 K.B. 541.
448SA2VIERAWICKRAME, J.—Abdeen v. Wickramasinghe
purpose of hatching. In the price order under consideration by meihowever, the indications arc not that the term ‘ consumer ’ has been usedin a limited sense but rather the contrary.
Lord Goddard, C.J., stated that orders should be stated in a languagewhich ordinary persons who will be affected by them can understand.He said, “ It is surely desirable that orders creating criminal offencesshould be stated in language which the persons who may commit theoffences— in this case, quite humble people, like cottagers—can understand.It is a very serious thing to produce orders, whether under DefenceRegulations or otherwise, which create serious offences, if they are couchedin language which does not make it clear whether a person is committingan offence or not. I am certainly not prepared to support such ordersand to find persons guilty of criminal offences when the orders which theyare charged -with violating are couched in language which is open to all. sorts.of meanings and causes all sorts of difficulties, so that the persons towhom they apply cannot know whether they are acting legally or not,unless possibly they get counsel’s opinion, or at any rate a solicitor’s. advice. ”
Unlike the Order in that matter, the price order under consideration, inmy view, is not couched in language which is open to all sorts of meanings„ and likely to cause all sorts of difficulties. The meaning of the provisionis reasonably plain. While there is no obscurity or want of clearness, asemblance of them was made to appear, quite legitimately of course, bythe adroit use of legal technicalities and by forensic ingenuity of ahigh order. The mists of uncertainty so caused, however, yield to andare dispelled by careful examination of the language of the provisionsunhampered by preconceived notions as to the meanings which are to be
attributed to the terms used in them.
* ^
I am, therefore, of the view that the sale to a decoy of the said chillieswas one to which the maximum retail price to a customer laid down b}rFood Price Order No. C. 41S applied. l am fortified with the view that I•have'taken by the fact that G. P. A. Silva, J. in 7i. A. Martin v. KandyPolice 1 and Tennekoon, J. in H. M. Podimenike v. Inspector of Police,
‘ Kiriella 2 have held that a sale to a decoy was a sale by retail for thepurpose of the Price Control Act and an order made thereunder. Theyhave gone beyond what I have found it necessary to do and held that sucha. sale was one for consumption or use and fell within the provisions inparagraph (ii) (b) of the Order. I am, therefore, of the view that theconviction of the appellant must be affirmed.
Learned Counsel for the appellant submitted that the sentence of threemonths rigorous imprisonment was without justification. There isnothing on the record to show that the appellant had any previousconvictions and I do not see any reason why the Magistrate should haveimposed anj'thing more than the mandatory term of four weeks R. I.,
1 (1967) 70 N. L. R. 141.s {1067) 72 N. L. R. 30G.
Hassan v. Inspector of Police, Panadura
4t9
which the Legislature, in its wisdom has enjoined on Courts to impose onall persons found guilty of this offence, irrespective of ages, previousrecord, antecedents and physical or other conditions. I, accordingly,alter the sentence of imprisonment to one of four weeks R. I. The fine ofRs. 2,000 in default six weeks R. I. imposed by the Magistrate will stand.Subject to this variation, the appeal is dismissed.
Appeal mainly dismissed.