078-NLR-NLR-V-57-FOOD-AND-PRICE-CONTROL-INSPECTOR-Appellant-and-PIYASENA-Respondent.pdf
1955Present : Weerasooriya, J.
FOOD AND PRICE CONTROL INSPECTOR, Appellant,and PIYASENA, Respondent
S. C. 504—M. C., Mat ale, 4,316
Control of Prices Act, No. 20 of 1050—Section 4—Price Order—Prosecution thereunder—Proof of Minister's approval of the. price order not essential—Mode of proofof the price order—Judicial notice—Evidence Ordinance (Cap. 11), as. 57,7S (3).
Where a person is charged with contravening a price order made and signedby the Controller and published in the Government Gazette under sub-sections 1,3 and -i of section 4 of the Control of Prices Act, it is not obligatory on thoprosecution to place before tho Court tho fact (whether as a matter to bo provedby evidence or to be taken judicial notice of) that the price order has dulyreceived the Minister’s approval.
The Court may take judicial notice of a price order which is referred to inthe Government Gazette. Alternatively, tho price order, being a public docu-ment issued by a dcpartinent of Her Majesty’s Government, may be proved,under .Section 73 (3) of tho Evidence Ordinance, by a copy or extract of itcontained in tho Government Gazette.
j^^ePPEAL from a judgment of the Magistrate's Court, Matalc.
II. A. 1 Vijemanne, Crown Counsel, with Shim Pusiipali, Crown Counsel,for the complainant appellant.
O.E. Chilli/, with Diti/a Pcrcra, for the accused respondent.
Cur. rrdr. vult.
November 22, 1955. Weerasooriya, J.—
The respondent to this appeal was charged under the Control of PricesAct, No. 29 of 1950, with the commission of an offence the gist of whichwas that lie sold two pounds of wheat flour at a price which, in terms ofa certain 2>riee order referred to in the charge, was two cents in excess ofthe maximum retail price of forty-eight cents.
The price order in question was one made under S. 4 (1) of the Act.S. 4 (3) provides that an order under s. 4 (1) shall come into operation whenit is made and signed- The Act contains further provision for an orderwhen signed to be published in the Cover/tmail Gazelle and also to besubmitted to the Minister, who is empowered either to approve or rescindit. Under S. 4 (6), where an order is rescinded notice of such rescissionshall be published in the Gazette and the order shall be deemed to berescinded with effect from the date of such publication “ but withoutprejudice to anything done or suffered thereunder or any right, obligationor liability acquired, accrued or incurred thereunder ” ; and under S. 4 (7)
an order which has been approved by the Minister is, upon notification ofthe approval in the Gazelle, deemed to be as valid and effectual as if it werepart of the Act itself.-
These provisions make it clear, I think, that once an order has beenmade and signed (and also, perhaps, duly published) it becomes fullyoperative independently of any further efficacy it may receive from thesubsequent notification of its approval by the Minister. That the parti-cular order tinder consideration was duly made, signed and publishedwas sought to be proved by the Gazelle notification P i which was putin evidence by the prosecution. The charge framed against the respon-dent also contained a reference to the Gazette in which the order waspublished..
At the close of the case for the prosecution although the defence wascalled upon to meet the charge no evidence was adduced on its behalfand counsel for the respondent, instead, addressed certain submissions toCourt on an acceptance of one of which, at least, the Magistrate acquittedthe respondent- The ground for the acquittal is set out in these termsin the Magistrate’s order : “ The failure on the part of the prosecution toproduce the Gazette notification of the approval by the Minister of theprice order made, or even to make mention or reference to it in the -plaintis, in my opinion, a fatal irregularity which will enure to the benefit of theaccused ”. It would seem that the reference to the “ plaint ” in theabove quoted passage was intended to be a reference to the charge asframed against the respondent, but whether the order of the learnedMagistrate is regarded in its express terms or in the amended formsuggested by me, it is clear that it is not one which can be supported. Inmy opinion the charge framed against the respondent (which follows thewording of the accusation in the plaint) contained all the particulars of theoffence which need have been given under S. 167 of the Criminal ProcedureCode. For the proof of the offence charged it was not obligatory on theprosecution to have placed before the court the fact (whether as a matterto be proved by evidence or to be taken judicial notice of) that the priceorder had duly received the Minister’s approval, and it was thereforenot necessary to refer to it in the charge or produce the Gazette notificationof its approval. Indeed, Mr. Chitty who appeared for the respondent didnot attempt to maintain that the ground given by the learned Magistratefor acquitting the respondent was valid. Nevertheless, he asked thatthis Court should not interfere with the order of acquittal since, in hissubmission, the prosecution had failed to adduce evidence that the priceorder had been duly made and signed. The basis of this submission (if Iunderstood it correctly) is as follows : An order under S. 4 (1) of the Actis not a matter of which a Court is required to take judicial notice underS. 57 of the Evidence Ordinance. Therefore the Gazette notification P 4purporting to contain a copy of the order in question did not constituteprima facie proof of that order, and the prosecution should have producedin evidence either the original order or a certified copy of it under TheProof of Public Documents Ordinance (Cap. 12). In support of thissubmission 3Ir. Chitty referred to the case of the Solicitor General v.Aradiel1 where it was held that a closing order made under the Shops1 (19IS) 50 N. L. R. 233.
Ordinance, No. 66 of 193S, did not come within the classes of documentsenumerated in S. 57 of the Evidence Ordinance and a Court is, therefore,not hound to take judicial notice of it and tlie prosecution should haveproduced it in evidence. But while S. 57 of the Evidence Ordinancedeals with what facts a Court is bound to take judicial notice of, there isample authority for the view that the Court may, in its discretion, takejudicial notice of various other facts not enumerated in S. 57 thoughnot bound to do so. See, for example, Mcnon v. Lantine 1 and Boglslra v.The Custodian of Enemy Properly
In the present case there was publication in the Gazette (as proved by theproduction of P 4) of what purported to be an order under S. 4 (1) of theControl of Prices Act, No. 29 of 1950, and I see no reason why in thecircumstances the Court should not take judicial notice of the orderreferred to in P 4 as one which was duly nfacle and signed under S. 4 (1)of the Act. Alternatively, even if the Court, were not disposed to takejudicial notice of the order referred to in P 4, it seems to me that P 4itself constitutes primci facie proof that such an order was duly made andsigned, since under S. 78 (3) of the Evidence Ordinance the original order(being, in my view, a public document issued by a department of HerMajesty’s Government) may be proved by a copy or extract of it containedin the Government Gazette.■
therefore, set aside the order of acquittal and remit the ease fora fresh trial before another Magistrate. But having regard to the natureof the offence charged and the allegation that it was committed as far backas the Gt.h of March, 1954, and the principle of law sought to be establishedin filing this appeal having now been fully vindicated, the complainantwill, no doubt, consider whether the charge should be proceeded withor whether this is not a proper ease for an application under S. 195 of theCriminal Procedure Code for its withdrawal.
The respondent will pay the Crown Its. 105 as costs of this appeal.
Acquittal set aside.
(1011) 43 K. L,. li. 34.
= 11043) 2G C. L. If. 5.