E. L. PERERA, Appellant , and C. W. MUNAWEERA (Food and Price Control Inspector)

109-NLR-NLR-V-56-E.-L.-PERERA-Appellant-and-C.-W.-MUNAWEERA-Food-and-Price-Control-Inspector.pdf

.Perera v. Munaweera
433
1955 Present: Gratiaen J., Swan J., de Silva J., Sansonl J.and Fernando J.J
E. L. PERERA, Appellant, and C. W. MUNAWEERA(Food and Price Control Inspector), Respondent
C. 1,176—M. G. Colombo, 57,397
Mens rea—Applicability to statutory offences—Mistake of fact— Validity of suchdefence—Penal Oode, ss. 38 (2), 72— Control of Prices Act, No, 29 of 1930,s. 8 U) and (fi).'
Section 72 of the Penal Code which enacts that “ nothing is an offencewhich is done by any person … who by reason of a mistake of fact
and not by reason of a mistake of law in good faith believes himself to bejustified by law in doing it ” applies to all offences alike, including everystatutory offonce whose definition does not contain a particular state ofmind or knowledge as one of its elements. In the latter case the accusedwill bo entitled to an acquittal if he can prove on a balance of probabilitythat by roason of a mistake of fact, and not by reason of a mistake of law,he had in good faith believed himself to be doing something which was notprohibited by law.
The uppoltant was charged with having sold a loaf of bread weighing 151ounces at a price fixed for a 16 ounce loaf; this sale at a price beyond the controlledprice constituted, it was alleged, a contravention of section 8(1) of the Controlof Prices Act. The appellant gave evidence to the effect that he himselfbelieved that the weight of the offending loaf was in fact 16 ounces and thatin demanding and receiving 26 cents for its sale, he acted in good faith andintended to charge only what was in truth the controlled price fixed for a16 ounce loaf.#
Held, that it was not open to the trial Court to convict the appellant unlessit rejected the appellant’s evidence that he believed in good faith, and byreason of a mistake of faot, that he was justified in law in charging 26 centsfor a loaf of bread which he honestly but erroneously believed to be 16 ouucesin weight.
^.PPEAL from a judgment of the Magistrate’s Court, Colombo.This appeal was reserved for the decision of a Bench of five Judges upona reference by Rose C.J. in the following terms :—
“ The appellant in this case was convicted of selling a loaf of breadwhich purported to be a pound loaf and which actually weighed only15J ounces, for 26 cbnts which would have been the appropriateprice undor the relevant older for a one pound loaf of bread.
“ The appellant suggests that no moral turpitude attaches to himin- this matter in view of the fact that several hundreds of loavesof bread were baked on this particular morning, and that had theremainder of these loaves been weighed it would ha,ve been found10iwi
■>J. N. B 45450—1,502 (6/55)
Fercra v. Sfunaveera
that all except a negligible quantity would have weighed either therequired 16 ounces or slightly more. Evidence was adduced insupport of this position and the present appeal was argued on thobasis that that evidence should be accepted for the reason that1 tholearned Magistrate in his order appears to have acted on tho basisthat the factual position as presented by the appellant was correctbut that his liability in law was absolute, irrespective of ‘ monsroa
“ It is of course quite possible to advance a valid argumont in supportof either view, and it appears that there are conflicting authoritiesof this court. Roertsz J. appears to have come to opposite conclusionson tho point of the principle involved in two cases, in both of whichlie was sitting alone. In Gunasekere v. Dias Bandaranaike (39 N. L. It.17} he held that Section 72 of the Penal Code could be availod of bytho appellant, whereas in Perumal v. Arumugam (40 N. L. It. 532)he held that in relation to a charge under section 28 of the Poisons,Opium, and Dangerous Drugs Ordinance the existence of mens reawas not an essential element of the offence.
“ The view expressed in tho former case would seem to derivesupport from a Full Bench decision that was decided as long ago asin 1921, the case of Weerakoon v. Ranhamy (23 N. L. It. 33 at pages43 and 44).
“ Having regard to tho importance of this matter from tho pointof view of the effect that its decision must have upon the efficacyof prosecutions under these various controlling ordinances, and inview of the conflicting authorities, I consider that thL is a matterwhich should properly be referred to a decision of more than oneJudge ; and in pursuance of Section 48a of the Courts Ordinance,I hereby diroct that tho mattor shall de decided by a Bench of fiveJudges. ”
H. V. Perera, Q.C., with A. B. Perera, for the accused appellant.—English Law is defferent from the law in Ceylon. In Ceylon there arcthe General Exceptions in the Penal Code. The question is—is section72 available to the accused ? Our system is statutory and thereforeEnglish law cannot bo imported into it. Perumal v. Arumugam 1 iscorrect when it says'- Section 38 Penal Code makes Section 72 applicableto offences punishable under an}7 law other than this Code ” ; but isincorrect when it says “ it is not an inflexible rule … ”. Perumal
v. Arumugam 1 is in conflict with the earlier decision of tho same Judgein Letchman v. Murugappa Chetliar2 which referred to Weerakoon v.Ranhamy3 and applied section 72. In Weerakoon v. Ranhamy 3 thequestion was whether ignoiance is covered by the exception—ignoranceimplying a mistake Cl fact as distinguished from pure ignoiance. Theease was disposed oi on the footing that there wav ignorance of law,but the Judges considered the applicability of section 72. In Rea v.'* {1030) 40 P. Tv. Ii. 632.* {1936) 39 N. L, It. 19.
{1021) 23 N. L. It. 33 {F,J3.)
Pertra o. Munaweera
436
Ansalavarnar1 the defence was disbolieved. In Medudaka v. Muttu-carupen -—the lieadnote is incorrect—de Sampayo A.C.J. appliedseotion 72 as the accused proved his mistake of fact.
In the present case, the evidence of the accused was accepted by thoMagistrate. The accused honestly believed that he could sell the loafat the price he did because of the mistake of fact regarding its weight.
In English Law there is no General Exception ; but there are specialprovisions in the laws relating to the Sale of Bread that afford variousdefences—e.g., mistake, accident, driage, and acts of persons not withinthe defendant’s control. Vide :—1954 (Vol. 2) Stone’s Justices Manual,p. 2414 and Trickers {Confectioners), Ltd. v. Barnet.
In the present case, the accused by a practical system tested theweight—though he did not weigh each loaf. He believed that tho loafin question weighed 16 ozs. He bona fide thought so. As counter clerkhe had no control over the other employees. He issued the ingredientsfor making a particular quantity of loaves, checked their number whenbaked and tested the weight of some loaves. When occasionally ashort weight loaf was discovered it was converted to toast.
The difference in weight in this case is only f oz. There can be nodoubt os to the bona fides of the accused.
H. .1. Wijemanne, Crown Counsel, with Vincent T. Thamotheram andV. S. A. Pullenayagain, Crown Counsel, for the Attorney General.—Tho question is whether section 72 permits an accused person to pleada mistake of fact in regartl to absolute prohibitions. The observationsof Bertram, C. J., in Weerakoon v. Ranhamy 4 on the scope of section 72aro obiter and not binding on this Court. That case was disposed ofon the footing that there was a mistake of law. In any event, thoseobservations are orroneous. The correctness of the principle referredto at p. 43—that the absence of the word “ knowingly ” shifts thoburden of proof—has been doubted by Devlin J. in Taylor's CentralGarages {Exeter) v. Roper1 * * * 5.
Section 72 applies only to offences which involve mens rea. In thocase of an absolute prohibition the prosecution need not prove a mentalelement. For instances of absolute prohibition vide Renolds v. Q, 11.Austin and Sons, Lid. 8. Soertsz J. in Perumal v. A rumugam 7 followedthe English Law. See also Buckingham v. Duck8; Peark s Dairies,Lim. v. Tottenham Food. Control Committee0; James dr Son, Ltd. v. Smee10.Tiio definition of “ offence ” in section 38 cannot enlarge the scope ofsection 72.
Even if section 72 applies, the accused has not established his defenceof mistake. The ovidence led by him shows that 5 per cent, of his breadwould normally bo short in weight, that the bread, is subject to driageand that it has less driage if it is double baked. The accused should
1 (1922) 1 Times 46.4 {1951) 1 All England Reports 606.'
(1923) 1Times 239.’(1939)40 N. L. R. 532.
8 (1955) 1All England ReportsSOS.* (1919) L. J. K. B. D. Vol 88. p. 375.
(1921) 23 N. L. R. 33 (F.B.).»(1919)L.J.,K. B. D. Vol. 78 p. 623.
5 (1951) 2T. L. R. 2S4. .•»(1954)3AllEngland Reports 273.
*88
Ptrora v. Mutuneeera
therefore have either weighed his bread before celling ov oouble-baked it.As he did neithei he cannot plead a bona fide mistake of fact. Moreover,the Price Order C 229 in Gazette 10,248 of May 18, 1951 and the BreadOrdinance, Cap. 171, as amended by Ordinance 33 of 1944 casts a legalduty on the accused to weigh the bread before it is sold.
Counsel also cited Silva v. Attorney General1.
,Cur. a<lv. vult.
•Tune 6, 1955. The judgment of the Court —
This appeal was reserved for the decision of a Bench of five Judgesunder the provisions of Section 48a of the Courts Ordinance.
The appellant was charged with having sold a loaf of bread purportingto weigh 1G ouncep, but in fact weighing only 15J ounces, at a pricewhich was 1 7/32 cents in excess of the maximum control'price fixedunder a Food Price Order in force at the time ; this sale, it was alleged,constituted a contravention of Section 8 (1) of the Control of PricesAct, No. 29 of 1950 and was punishable under Section 8 (6) of the Act.
The appellant admitted the bare facts relied on by the prosecution—namely, that the loaf of bread weighed slightly less than 16 ounces andthat the price charged was accordingly in excess of the controlled price.He gave evidence, however, to the effect that, as a responsible personemployed by a reputable bakery, he had taken all reasonable precautionsto avoid selling bread at prices beyond the controlled price ; that hehonestly believed that the weight of the offending loaf was in fact16 ounces, and that, in demanding and receiving 26 cents for its sale,he acted in good faith and intended to charge only what was in truththe controlled price fixed for a 16 ounce loaf. In other words, he setup a defence under Section 72 of the Penal Code the relevant provisionsof which are as follows :—
“ 72. Nothing is an offence which is done by any person who. . . . by reason of a mistake of fact and not by reason of amistake of law in good faith believes himself to be justified by lawin doing it
The learned Magistrate did not reject the appellant’s version of thecircumstances relating to the sale. He took the view, however, thatthe Food Price Order in question contained words of absolute andunqualified prohibition, and that in regard to such offences, as inEngland, the defence of “ bona fide mistake of fact ” was not availableto an accused person against whom the commission of the actus reushad been established. In reaching this conclusion, the learned Magis-trate adopted the ratio decidendi of Soertsz J’s judgment in Perumalv. Arumugam 2. In that case a person charged under Section 28 of thePoisons, Opium, and Dangerous Drugs Ordinance (Cap. 172) explainedby way of defence that his possession of an article containing ganja* (1940) 42 N. L. A. 304 at 309.* (1939) 40 N.L.R. 532.
Perera v. Munaweera
437
was due to a bona fide mistake of fact. Soertsz J. decided that Section72 of the Penal Code was not applicable to offences punishable underSection 28 of the Ordinance because : '
“ As regards Common law offences, which so far as we are concernedhave been made statutory to the extent that they have been codifiedin our Penal Code, mens rea is necessary as Seotion 72 of the Pena]Code indicates. Section 38 makes Section 72 applicable to offencespunishable under ‘ any law other than this Code ’ as well, but inmy opinion, this does not mean that it necessarily applies to all offencesoutside the Penal Code. It is not an inflexible rule. Whether itapplies or not must as I have pointed out on the authority of thecases I have referred to depend on the particular Legislative Enact-ment. If I may repeat myself and use the words of de Sampayo J.‘ there are many branches of social and municipal legislation in whichan act is made criminal without any mens rea ’. The Poisons, Opium,and Dangerous Drugs Ordinance is such an Ordinance. ”
It was argued before us that this decision was wrong, and that it is inconflict with the earlier judgment of the same distinguished Judge inLetchman v. Murugappa Chettiar1. In that case the accused wascharged with plying an omnibus along a route not approved by thelicensing authority. His defence was he honestly believed that he hada valid licence authorising him to proceed along the particular route.Soertsz J., in quashing the conviction, said:
“ The accused has given evidence and his defence is that he hadnot been informed, and he was not aware, that the licensing authorityhad withdrawn his approval of a section of the route. There is noreason whatever for rejecting the accused’s evidence on this point.The only question is whether his defence is good in law. I am ofopinion it is. In Weeralcoon v. Ranhamy 2, a Bench of four Judgesconsidered the question of mens rea in relation to our law. Theyheld that Section 72 of the Penal Code which enacts that ‘ nothingis an offence which is done by any person who is justified by law,or who by reason of a mistake of fact and not by reason of a mistakeof law in good faith believes himself to be justified by law in doingit ’ applies to all enactments alike, including those enactments whichimpose absolute obligations. The English Law drew a distinctionand made the plea of absence of mens rea inoperative in the case of'charges framed under ‘ certain exceptional enactments containingprohibitions which are interpreted as unqualified’. Our law knowsno such distinction. ”'
In our opinion this passage correctly sets out the general principle asto the applicability of Section 72 of the Penal Code not only to offence?punishable under the Penal Code but also to offences punishable underall other criminal statutes enacted in Ceylon. Section 38 (2) of the Codeunambiguously declares that the word “ offence ” in Chapter 4 of theCode (dealing with “ General Exceptions ”) includes “ a thing punishablein Ceylon under any law other than this Code”. Accordingly, Section• (1936) 39 N.L.R. 19…(1921) 23 N. L. R. 33.
2*
438
Pererci v. Munawtern
72 equally applies to every statutory offence even if its definitiondoes not contain a particular state of mind or knowledgeas one of its elements. Weerakoon v. Ranhatny1. It is therfore wrongto say that the rule laid down in Section 38 of the Code in its presentform is “ not inflexible Where the definition of an offence containswords of absolute and unqualified prohibition, the prosecution needonly establish beyond reasonable doubt the commission of the prohi-bited act, and it is not required in addition to establish that the accusedacted with any specific intention or knowledge. Blit this does not meanthat in such a case the accused is to be denied the right to plead any ofthe general exceptions set out in Chapter 4 of the Code. The accusedwould therefore be entitled to an acquittal if he proved on a balanceof probability that by reason of a mistake of fact, and not by reason ofa mistake of law, he had in good faith believed himself to be doingsomething which was not prohibited by law. The accused must, ofcourse, prove affirmatively the existence of each of these circumstances,and he will not be entitled to the benefit of Section 72 if he fails to doso, or merely leaves that issue in doubt. The Kiruj v. Chandrasekera 2.
Learned Crown Counsel conceded that these principles are in accordwith the rule unanimously laid down by a Full Bench of this Courtnearly 34 years ago in Weerakoon v. Ranhamy 1. He invited us, however,to hold that that case had been wrongly decided on this point, and that thegeneral observations as to the applicability of Section 72 of the Code to allstatutory offences were obiter dicta. We are quite unable to take thisview. The observations referred to were considered by all the Judgesto be strictly necessary for their ultimate decision, and therefore consti-tuted an essential part of its ratio decidendi. The Court unanimouslyagreed, as a preliminary to its conclusions, that Section 72 of the Codedid apply to prosecutions under the Forest Ordinance, but the majorityof the Judges then proceeded to hold that on the evidence the mistakerelied on was one of law and not of fact. Even if the decision of aCollective Bench properly constituted under Section 51 of the CourtsOrdinance is wrong, it cannot subsequently be over-ruled by even asubsequent Collective Bench, far less by a Bench to which an appealhas been referred under Section 48a. Vide Jane Nona v. Leo 3.
We were invited to consider the undesirability of Section 38 of the PenalCode making Section 72 inflexibly applicable to offences to which, undermodern conditions, Parliament may, in the interests of justice, considerthe defence of bona fide mistake to be inappropriate. This argumentdoes not impress us. In such a contingency, it is always open toParliament to enact that, in regard to any particular criminal statute.Chapter 4 of the Penal Code or any part of it shall not apply : Section 38 (2)would then stand repealed or amended to that extent. No such repeal oramendment having been enacted in the case of offences punishableUnder the Control of Prices Act, No. 29 of 1950, it W88 not open to thelearned Magistrate to convict the appellant without rejecting theappellant’s evidence that he believed in good faith, and by reason of'(1921) 23 N. L. R. 33.* (1942) 44 N. L. R. 97.
(1923) 25 N. L. R. 241.
GRATIAEN J.—Justin de Silva v. f>on Niculas
430
a mistake of fact, that he was justified in law in charging 26 cents for aloaf of bread which he honestly but erroneously believed to be 16 ouncesin weight. We allow' the appeal and quash the conviction,
(Sgd.) E. F. N. Gratiaen,
Puisne Justice.
(Sgd.) V. L. St. Clair Swan,
Puisne Justice.
(Sgd.) K. D. de Silva,
Puisne Justice.
(Sgd.) M. C. Sansoni, '
Puisne Justice.
(Sgd.) H. N. G. Fernando,
Puisne Justice.
Appeal allowed.