066-NLR-NLR-V-74-ABDUL-FAJRULHUQ-Appellant-and-C.-JAYAWARDENA-Respondent.pdf
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Fajrulhuq V. Jayawardena
1971Present :G. P. A. Silva, S.P.J.ABDUL FAJRULHUQ, Appellant, andC. JAYAWARDENA, RespondentS. C. 301/70—M. M. C. Colombo, 62G05Price-controlled article—Charge oj selling it at excessive price—Conviction based ondecoy’s evidence—Currency note tendered to seller by the decoy—Circumstanceswhen secondary evidence oj it is admissible—Weighing scales—Proof of theiraccuracy—Price Order—Whether Minister's approval of the Order should beproved by the prosecution— Control of Prices Act (Cap. 173), as amended byActs No. 41 of 1367 and No. 16 of 1066, ss. 4 (3), 4 (1), S (7), S (6).
The accused-appellant -was charged with hoving sold a pound of beef withoutbones ot a prico which exceeded tho maximum controlled retail prico. Howas convicted upon tho cvidcnco of a decoy who had handed to the accused atwo-rupeo note and was given a balance sum of twenty-tivo cents instead offifty cents. Tho two-rupee note, which was hor.dcd over to tho trial court ottho timo when tho accused was produced, was found missing at tho trial.
G. P. A. SILVA, S.P.J.—Fajrulhuq v. Jayawardena
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Tbo evidence was that the pound of beef was weighed by the accused in hisown weighing scales and that it was weighed again by tho prosecuLor in thesame scales. The accused did not, when ho gave evidence at tho trial, questionthe accuracy of his scales.
Held, (i) that secondary evidence was admissible in rospoct of tho missingtwo.rupee note.
(ii) that it was not obligatory on tho prosecution to have furnished proof oftho accused’s weighing scales.
Held further, that in a prosecution for a contravention of a Prico Order madeby the Controller in terms of section 4 (3) of tho Control of Prices Act, it is notnecessary for tho prosecutor to prove that tho Price Order has boon approvedor rescinded by the Minister in terms of section 4 (5) of tho Act ; it is sufficientfor the prosecutor to provo tho Prico Order made by tho Controller. However,when a long period has intervened between the Price Order made by thoController and the commission of tho alleged offence, tho desirable course wouldbo for the prosecutor to adduce somo proof at tho trial that the Minister hasnot rescinded but approved the Order..
-/VppEAL from a judgment of the Municipal Magistrate’s Court,Colombo.
M. Tiruchelvam, Q.G., with S■ P. M. Rajendram, for the accused-appellant.
C. M. NBogollegama, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
March 23, 1971. G- P. A. Silva, S-P.J.—
The accused-appellant was charged with having, on the 12th February,1969, at Kochchikade within iheMuiicipal limits of Colombo where thePrice Order No- 430 made by the Controller of Prices (Food) publishedin the Ceylon Government Gazette No, 14.75S/10 of 26th July, 1967 wasin operation, sold 16 ounces of beef without bones for Re- 1/50 when themaximum controlled retail price under the said Order was Re. 1/25, andwith having thereby committed an offence punishable under section S (6)of the Control of Prices Ordinance as amended by the Control of PricesAmendment Acts No. 44 of 1967 and No. 16 of 1966. After trial thelearned Magistrate convicted him on 6th January, 1970, and imposed onhim a sentence of 6 months’ imprisonment and a fine of Rs. 5,000.
The evidence of Police Constable Piyasena, attached to the ViceSquad, who acted as a decoy was that Sub-Inspector Fernando handed tohim a Rs. 2 note after noting down the number and instructed him togo to the accused’s stall and purchase a pound of beef without bones,having informed him that the price of beef without bones was Re. 1/25a pound. He also instructed Piyasena to remain at the stall if the pricecha-ged was more than the controlled price and to return if the controlledprice was charged. Police Constable Wijewardena too was sent by theSub-Inspector in plain clothes, like Piyasena, to watch the transaction.
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Piyasena proceeded to the stall whsre the accused was and asked for apaund ofbeef which the accusedserved up to him and quoted Re- 1/50 asthe price. Piyasena handed the Rs- 2 note given to him by the Sub-Insp;ctor and the accused returned to Piyasena a balance of fifty cents.Police Constable Wijesvardena thereupon left the spot to signal to theSub-Inspector who drove up to the stall and took over from Piyasena thepou id of beef and the balance 50 cents. He thereafter questioned thoaccused, searched his drawer and took cha~ge of the Rs. 2 note whichhe had earlier handed over to Piyasena. He also weighed the pcudof meat in the a ecu ;ed’s weighing scale and found it to contain one poundand thereafter explained the charge and took the accused into custody.The Rs- 2 note was sealed in an envelope at the spot and the left thumbimpression of the accused was obtained on it and thereafter thoenvelope was never opened but produced in the Magistrate’s Court in thosame condition.
Sub-Inspector Fernando corroborated this witness on the materialpoints and also gave the number of the Rs. 2 note which he took downbefore handing it over to Piyasena to Luy the pound of beef. As regardsthe envelope containing the Rs. 2 note which was sealed by the Sub-Inspector in the presence of the accused and handed over to the trialcourt at the time the accused was produced, it was found missing at thetrial. In the evidence of the Record Keeper, however, he admitted thereceipt of this envelope which was further supported by an entry in theProduction Register as well as by the receipt given by him to the Policeat the time it was handed over by Police Constable Wijewardena.
Sfr. Tiru'helvam’s first argument on behalf of the appellant was thatthe absence of this Rs. 2 note was fatal to his conviction. He submittedthat in the absence of the note, there was no proof that a Rs. 2 notebearing the number noted by the Sub-Inspector was one in circulationand that it was incumbent on the prosecution to have summoned anofficer of the Central Bank in the circumstances to prove that such a notewas in circulation. I regret I am unable to see any substance in thisargument. The note is only a circumstance of evidentiary value evenif it was present and if the Magistrate was able to accept as he did without■ hesitation the oral testimony of the Police officers with regard to thohanding over of a Rs. 2 note and the return of the change of 50 cents forthe pound of beef, the mere absence of the note did not affect thecorrectness of tho finding. I can .appreciate an argument of this natureif the offence was one connected with the note itself such as its being acounterfeit note ; but where the note only consists of circumstantialsupport of oral evidence the truth or falsity of which had to be assessed bythe Magistrate, the absence of the note at the trial was inconsequential inanew of the secondary evidence thereof which the Magistrate accepted.
The second submission made by counsel for the appellant was thatthere was no evidence as to the accuracy of the accused’s scale in which the•beef was weighed by the Sub-Inspector. He relied for this submission
G. P. A. SILVA, S.P.3 .—Fajrulhuq v. Jayau-ardcna
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on an observation made by Howard, C-J. in the case of Ekanayake v.IVa-ssira1, to the effect that in the absence of evidence as to the accuracyof the scales it could not be said that the standaid of proof required in acriminal case had been reached. The faets of that case bore a similarityto the facts of the instant case in regard to the weighing of the articlein that the decoy in that case too weighed it in the accused’s scale. Inthat case however there was another substantial contention raised onbehalf of the appellant and accepted by the appellate court that thePrice Order which referred to one pound and half pound loaves of breadhad no application to quarter pound loaves. While it is correct thatHoward, C.J. also took into consideration the absence of evidence as tothe accuracy of the scale in dismissing the appeal by the complainant,this is a view with which I find compelled most respectfully to disagree.I can well understand if there is, in a particular case, a dispute as to thecorrect weight of the article sold and it had been weighed in a scalesupplied by the complainant the accuracy of which has not beenestablished bj' evidence. But in a case such as the one referred to or inthe instant case, where the evidence is that the act used weighed in his ownscale one p ru.id of the article bought by a customer and it is again weighedby the prosecutor in the same scale and found to contain one pound, andwhere not even a suggestion is made on behalf of the accused at the trialthat the scale was inaoewate, I am unable to see any justification for acourt, in order to reach the satisfaction necessary in a criminal case,to insist on a requ'remcnt by the prosecution to furnish proof of theaccu-aoy of the accused’s own scale which the law ordinarily requiresto be accurate. In the instant case there is the additional fact that theaccused gave evidence and, although he had an opportunity to say thathis scale was inaccu-ate, did not say so either directly or by implication.The other case cited by cou lsel was Sheriff Aten v- Girihagama 2 in whichthe accused was convicted of having sold 15 ounces of beef at a pricewhich exceeded the controlled price of one pound. In that case, thequestion whether the quantity sold was 15 ounces or 16 ounces became avital issue and the connected facts made it obligatory on the prosecutionto prove the accuracy of the scale used for the purpose, which was notthe accused’s scale but one used in a co-operative store. The facts ofthat case have no application to those of the instant case for another. reason, namely, that there was an opportunity in that case of a portionof the beef sold by the accused to have been abstracted before it wasweighed by the constable.
The final submission of counsel for the appellant revolved round aquestion of law. He first argued that the Gazette, in which.the order ofthe Controller as approved by the Minister was published, was notreferred to in the change. The view has often been taken in these courtsthat the particular Gazette in which a Price Order is published heed noteven be referred to in the charge. I note however that the relevant
(1945) 29 C. L. TP. 76.
(1969) 721st. L. Hi454.
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G. P. A. SILVA, S.P.J.-—-Fajrulhuq v. Jayawardcna
Gazette in'which the order made by the Controller was published, namelyGovernment Gazette Extraordinary No. 14,7oS/10 of 26.7.67, has beenreferred to in the charge and produced as P5 by the prosecution witness,Sub-Inspector Fernando. Crown Counsel’s answer to the submission thatthe Gazette in which the Minister’s approval was published should havebeen referred to in the charge is that, in view of the clear wording ofsection 4 (3) of the Control of Prices Act (Chapter 173) that an Ordermade by the Controller comes into operation when such order is madeand signed by the Controller and published in accordance with thoprovisions of sub-section 4, there is no requirement to refer in the chargeto the Gazette in which the Minister’s approval has been published.His contention finds support in two cases cited by him, namely, Foodand Price Control Inspector v- Piyasena1, and Martin Coorap v.Sub-Inspector of Police, Borella.2 I was myself anxious to know duringthe course of the argument whether this Price Order had beensubsequently approved or rescinded by the Minister who is vestedwith the power to take either of these courses in terms of section 4 (5) ofthe Control of Prices Act. The Crown Counsel was unable to enlightenme on this but relied strongly on the recent decision of Samcrau ickreme, J.in the 73 New Law Report case to show that it was sufficient for theprosecution to prove the Price Order made by the Controller.
While I do not disagree with the views expressed in the two judgmentscited above, there is another aspect of this matter which would havepresented certain difficulties in my way in affirming the conviction inthis case had the Crown Counsel not subsequently brought to my noticethe Gazette in which the approval of the Minister had in fact beenpublished, namely, Government Gazette Extraordinary No. 14,762/4 of24th August, 1967. For, I cannot help thinking that when the Magistrateconvicted this accused he did so without being aware whether the PriceOrder made by the Controller in July, 1967, was in operation in February1969 or whether it had been subsequently rescinded by the Minister. Thissituation seems to me to be unsatisfactory and I refrain from interferingwith this conviction only because I am satisfied that it has not occasioneda failure of justice as the Minister has in fact not rescinded but approvedthe order made by the Controller or Prices.
Tho appeal is accordingly dismissed.
I should now wish to state my views on the aspect of this questionwhich ha3 not been dealt with in tho two previous judgments referred to,
. presumably because the Court was not invited to consider that aspect. Inboth those cases tho aspect that has boon considered by Wcorasooriya J.and Saijicrawickrame J. is whether, in a case whore an accused is chargedwith contravening a Price Order made bj- tho Controller in forms of section4 (3) of tho Control of Prices Ordinance, it is necessarj- for the prosecutionto prove that tho said Ordor ha3 been approved by tho Minister and
1 {1055) 57 N. L. R. 310.
{1070) 73 N. L. R. 307.
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whether the notification of such approval has been published in theGazette. I havo no difficulty in agreeing that the provisions of sub-section 3 make such an order operative when it is signed by the Controllerand public notico thereof has been given as contemplated by sub-section
These provisions are intended in my view to deal with offendersagainst such a Price Order with immediate effect despite any time lagthat may occur between the signing of the Order by the Controller andfurther action by the Minister as contemplated in sub-section 5. Ifthe wording of this sub-section was to the effect that an Order made bythe Controller shall be placed before the Minister for approval but thatthe Order shall nevertheless bo effective from the time it is signed bythe Controller, there would of course be no difficulty as to whether thereshould be a reference to tho Minister’s approval in a charge, the obviousanswer being in tho negative as tho Minister's approval would appearin that event to bo a mere formality. It scorns to mo however that,as sub-section 5 empowers tho Minister to approve or to rescind theOrder of tho Controller, such Order is not placed before the Minister forhis formal approval but that ho may well rescind tho Order. He may,for instance, think that tho price fixed by tho Controller in tho Orderis too low having regard to tho supply of tho article available and maywish to fix a higher price ; or consider the price too high, having regardto the capacity of the consumer to pay or the general high cost of livingor for any other reason, and may wish to fix a lower price. When,particularly, there is a long period intervening between the order madeby the Controller and the commission of the alleged offence, as in theinstant case—a period of nearly two years—it is fair and desirable that,an accused person should know at tho t-imo he is charged whether theoriginal Order of the Controller has been approved or rescinded by theMinister. It is also important for tho trial Judge to bo certain, beforeho decides to convict an accused, whether such Order has for an}' reasonbeen rescinded by tho Minister rather than that ho should bo in thodark as to whether tho Minister has approved or rescinded tho Order.Whichever way one looks at tho question, whether from tho point ofview of tho Court or of the accused, therefore, it seems to mo that thedesirable course would bo for the prosocution to adduce some proof at thetrial that such an Ordor has not beon rescinded bj' tho Minister. Thismay in practice of courso result in tho prosecution proving that thoMinistor has in fact not rescinded but approved tho Order. I fooljustified in expressing this view by reason of tho further provision insection 4 (7) that when an Order has beon approved by tho Ministor andnotification of such approval is published, “ the Order shall be doomed tobo as valid and effectual as if it wero herein enacted. ” If at tho stagewhen tho notification is published tho Order is elevated to tho positionof an enactment, I do not seo any reason why an accused should bocontinued to be charged under an Ordor of the Controller of Prices whenho can bo charged in terms of a provision that has assumed tho formof an enactment.'
Appeal dismissed. .