017-NLR-NLR-V-77-D.-E.-PATHIRANA-Appellant-and-G.-JAYATILEKA-and-another-Respondents.pdf
SHARVANANDA, J.—Pathirana v. Jayatileha
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1974 Present: Walgampaya, J., and Sharvananda, J.
D. E. PATHIRANA, Appellant, and G. JAYATILEKA andanother, Respondents
S. C. 498/72—M. C. Anuradhapura, 34454
Weights and Measures Ordinance (Cap. 158)—Sections 29, 41 (b), 48, 51—Charge of possessing unstamped weights—Meaning of word“possession ”—Manager and his assistant—Whether the assistant’spossession is that of the Manager—Penal Code (Cap. 19), ss. 6, 25,259.
The 1st and 2nd accused-respondents were charged with havinghad in their possession, for use in a trade, certain unstamped weightsin contravention of section 41 (b) of the Weights and MeasuresOrdinance. At the time of the discovery of the weights inside astore belonging to a co-operative society, the 1st accused, who wasthe Manager of the store was away but the 2nd accused, who wasthe Manager’s assistant, was in charge of the store.
Held, that the 1st accused was entitled to be acquitted and thatthe 2nd accused was liable to be convicted. Section 25 of the PenalCode, which provides that “ when property is in the possession of aperson’s wife, clerk or servant, on account of that person, it is inthat person’s possession within the meaning of this Code ”, can onlybe applied to cases arising under the Penal Code, and cannot beextended to explain possession under other statute law, like theWeights and Measures Ordinance.
Dharmawardena v. Edirisinghe (71 N.L.R. 261) not followed.
A.PPEAL from a judgment of the Magistrate’s Court, Anura-dhapura.
T. D. Bandaranayake, Senior State Counsel, with G. L. M. deSilva, State Counsel, for the State.
Respondents absent and unrepresented.
Cur. adv. vult.
February 27, 1974. Sharvananda, J.—
The charges against the two accused in this case are that theydid at Madawachchiya M. P. C. S. Union branch at Padavi Parak-ramapura on the 4th day of March 1970, an area in which therewas in force an order under Section 29 of the Weights andMeasures Ordinance …. have in their possession for use in atrade to wit sale of provisions such as flour, sugar, rice, etc.weights to wit one 1 pound weight and one 2 lbs. weight whichhad not in the period of twelve months immediately precedingthe said 4th day of March 1970 been stamped by an Inspector ofWeights and Measures with the mark of verification prescribed
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SH AH VAN AND A, .T.—Pathirana v. Jayatileka
by Regulation 159 of the Weights and Measures Regulation 1955and that they were thereby guilty of an offence punishable underSection 41(b) of the Weights and Measures Ordinance
(Chapter 158).
On the evidence led in the case the learned Magistrate rightlyheld that the 1st accused was the Manager of the said M. P. C. S.Union branch and the 2nd accused was his assistant. It willappear that the 1st accused was not at the Co-operative stores atthe time of the detection on 4th March 1970, but had goneto Madawachchiya and that the 2nd accused was acting for himin the capacity of Manager and was in charge of the store in theabsence of the 1st accused.
According to the evidence of the Inspector of Weights andMeasures when he went to the said store he saw the 2nd accusedissuing rice and he found the three unstamped weights marked PIamong other stamped weights in the section where the rice wasissued. He added that he did not see these three weights beingused.
Apart from the evidence of the Inspector of Weights andMeasures, the case for the prosecution consisted of the evidenceof the Co-operative Inspector, Madawachchiya and of theGrama Sevaka, Padavi Parakrama.
The defence did not seriously contest the evidence of theprosecution and did not lead any evidence but contented itselfwith relying on the judgment of De Kretser J. in Dharmawar-dena v. Edirisinghe 1 reported in 71 N.L.R. 261. Following the saidjudgment the learned Magistrate, though he was satisfied thatthe charge against the accused had been established, acquittedthe accused.
The only question that arises in this appeal is whether the saidjudgment reported in 71 N.L.R. 261 should be re-considered.
On facts very similar to the facts in this case De Kretser, J.acquitted the salesman (an employee of the C.W.E.) who was inactual possession of the unstamped weights as in his view “ thepossess'on referred to in Section 41 (b) of Chapter 158 was thepossession which involves the idea of proprietorship, the right toexercise power and control over the thing possessed in contradic-tion to the mere physical possession by the officer in chargeof the stall which is really the equivalent of custody ”. For thisview he relies on Section 25 of the Penal Code (Chap. 19). Hisconclusion is based on the following reasoning. To quote his ownwords—“ It is true that there is no definition of possession in
(1968) 71 N. L. E. 261.
SHARVANANDA, J.—Pathirana v. Jayatileka
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Chapter 158, but one must remember that Chapter 13 of the PenalCode also deals with offences relating to weights and measuresand section 51 of Chapter 158 states that the provisions of Part 6of Chapter 158 which commences with Section 41 are in additionto and not in substitution for the provisions of Chapter 13 of thePenal Code. In Chapter 13 of the Penal Code as well as inPart 6 of Chapter 158 there are sections dealing with offences ofwhich the main ingredient is possession, e.g., Section 259 ofChapter 13 of the Penal Code and Section 41 (b) in Part 6 ofChapter 158
I regret to say that the above process of reasoning does notcommend itself to me. It assumes that the constructive posses-sion of the husband or employer postulated by Section 25 of thePenal Code excludes the possession of the wife or servant.Though the said section 25 says that the possession of a person’swife or servant is in certain circumstances the possession of thatperson it does not say that such possession is not that of the wifeor servant also. Section 25 of the Penal Code defines the limitsof constructive possession recognised in the Penal Code. It doesnot define possession as such which it leaves to the determinationof the civil law.
Further Section 25 of the Penal Code can only be applied tocases arising under the Penal Code, and cannot be extended tosituations arising under the provisions of other statute law. Aconsideration of Section 6 of the Penal Code, which appears alongwith Section 25 in Chapter II of the Penal Code, under the caption‘ General Explanations ’ makes this position clear. Section 25 ofthe Penal Code cannot be applied to explain possession under aspecial statute, like the Weights and Measures Ordinance(Chapter 158). Though Part VI of Chapter 158 and Chapter XIIIof the Penal Code deal with offences relating weights andmeasures yet they respectively deal with entirely different speciesof offences. The element of fraud pervades the offences dealt withby Chapter XIII of the Penal Code unlike the offences dealt withby Part VI of Chapter 158. Section 51 of Chapter 158 appears tome to be superfluous and to have been enacted ex abundanticautela and no argument can be based on that section.De Krester, J. appears to me to have been in error in importingthe concept of constructive possession contained in Section 25 ofthe Penal Code into a charge under Section 41 (b) of the Weightsand Measures Ordinance. In an inquiry under Section 41 (b)of Chapter 158, the essential question is “ did the accused usefor the purpose of any trade or have in his possession for use inany trade the impugned weight ” ? Section 48 of Chapter 158provides that any such weight found in the possession of any
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person who carries on any trade or on any premises used by anyperson for the purposes of any trade, shall be deemed until thecontrary is proved to be in the possession of that person foruse in trade. This rebuttable presumption militates againstthe application of the doctrine of constructive possessionembodied in Section 25 of the Penal Code.
In my view, the judgment reported in 71 N. L. R. 261 does notcorrectly set out the law and should no longer be followed.
On the facts in the case it appears that the 2nd accused was thelocum tenens in charge of the stores in the absence of the1st accused who was the permanent manager. At the timeof detection the impugned weights PI were found in his posses-sion. In my view the charge against the 2nd accused has beenestablished. I set aside the order of acquittal entered against the2nd accused and find him guilty and order him to pay a fine ofRs. 20. In default of his paying the fine he shall undergo threeweeks simple imprisonment. In my view of the circumstances it ishoped that the Union will pay out of its funds the said fine ofRs. 20 on behalf of the 2nd accused.
Since the 1st accused was absent and the 2nd accused was incontrol of the shop at the time PI was found, the 1st accusedcannot be said to have been in possession of the impugnedweights and hence the order of acquittal entered by the learnedMagistrate against him will stand and the appeal against himis dismissed.
Walgampaya, J.—I agree.
Acquittal of 1st accused upheld.Acquittal of 2nd accused set aside,