044-NLR-NLR-V-77-L.-SAVUNDARANAYAGAM-Appellant-and-H.-B.-DAYAPALA-Respondent.pdf
Savundaranayagam v. Dayapala
213
1973PresentRaj aratnam, J.
SAVTJNDARANAYAGAM, Appellant, and
B. DAYAPALA, Respondent
S. C. 793/72—M. C. Negombo, 48156
Control of prices—Charge of profiteering in sale of an imported saree—Quantum of evidence—Legends on the saree—Admissibility inevidence—Evidence Ordinance, ss. 45, 114 (e) (/).
In a prosecution for profiteering in the sale of an imported printedsaree the Price Control Inspector stated that the accused sold himthe saree when he was asked for an imported saree. The saree hadon it the legends “ Made in Pakistan ” and “ Manufactured by Pakis-tan The accused did not give evidence but relied on the Report ofthe Government Analyst who was unable to say whether the sareewas imported or not.
Held, that there was sufficient evidence to prove that the saree wasan imported one. In the circumstances of the present case it couldnot be contended that the legends on the saree were items of hearsaywhich were inadmissible. The legends were further circumstancesto be taken into consideration to prove that the article was imported.
Held further, that the requirement of the law is not that thearticle in question must be proved objectively to be a controlledarticle but that it must be proved to be a controlled article beyondreasonable doubt.
Appeal
from a judgment of the Magistrate’s Court, Negombo.
N.Satyendra, for the accused-appellant.
Mustapha, State Counsel, with M. L. M. Ameer, State Coun-sel, for the Attorney-General.
Cur. adv. vult.
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RAJARATNAM, J.—Savundaranay> gam v. Dayapala
October 29, 1B73. Rajaeatnam, J.—
The accused was convicted on a charge of profiteering in thesale of an imported saree which came within the relevant PriceOrder.
The Price Control Inspector Kuruppu stated that he asked foran imported saree and he was sold the saree in question forRs- 75. This same witness for what it was worth stated that fromhis experience he could say that the saree PI was an importedsaree but conceded in cross-examination that he was not anexpert on the identification of sarees. He also stated that plainsarees could be imported into Ceylon and printed here in whichcase such a saree was excluded from the operation of the PriceOrder but rather unpatriotically said that as the flower printeddid not fade off when he rubbed his wet finger on it, it was not aflower print made in Ceylon on an imported saree. The saree PIalso had these legends on it “ made in Pakistan ” and “ manufac-tured by Pakistan Rayon Mills, Karachchi ” which the defencesubmitted were items of hearsay evidence. The accused did notgive evidence but relied on D2 the Report of the GovernmentAnalyst who was unable to say whether PI was imported or not.
Inspector Kuruppu’s evidence was that he asked for animported saree. The accused asked him whether he wanted aplain imported saree or an imported printed saree whereupon heasked for an imported printed saree (p. 25 of the proceedings). Itwas in this context that PI bearing the two legends referred toabove was sold, and the transaction on the evidence was on thebasis that PI was a printed imported saree. The accused as Istated earlier gave no evidence but relied on the helplessness ofthe Analyst to identify PI as an imported saree.
On the particular facts adduced in evidence in this case and notcontradicted by the defence the context in which and the basison which the transaction took place have been proved-
The question before me is whether the prosecution has provedthat PI is an imported printed saree. Learned Counsel for theappellant has with great ability and thoroughness submitted thatthe prosecution has not dons so and the legends were items ofhearsay which were inadmissible. He further argued that therewas no objective proof of the fact that PI was an imported printedsaree. He relied heavily on the following cases : —
Patel v. Controller of Customs—1965 3 A. E. R. 593.
Myers v. Director of Public Prosecutions—1964 2 A. E. R.
881.
Piyadasa v. Yapatilleke—70 N. L. R. 475.
RAJARATNA3*, 7.—Savundaranayagam v. Dayapala
215
In the light of these decisions I have considered the decisions inJalaldeen v. Jayawardena, 70 N.L.R- 476, which did not follow thedecisions in Piyadasa v. Yapatilleke and the decisions in thefollowing cases : —
Mustapha v. Sub-Inspector oj Police Batticaloa—72 N. L. R.
310.
Perera v. Mohideen—73 N. L. R. 393.
Lebbe v. Food and Price Control Inspector—73 N. L. R. 475.
Somdlingam v. Jayawardena—70 N. L. R. 214 at 216.
In Patel’s case, the legend in question was the “ Produce ofMorocco ” marked in the inner bags which was in an outer bagand which legend the accused did not adopt in the transaction.In Myer’s case too there was no active adoption as such. It may besaid that even in the case of Piyadasa v. Yapatilleke, there wasno adoption as the customer asked only for a tin of milk.
On the facts of this case, however, there was an undoubtedactive adoption and an admission by the accused that what he wasselling was an imported printed saree and there was an additionalcircumstance that there were two legends on PI as referred toabove. The conduct of the accused was another circumstance andagain there are the presumptions under s. 114(e) and (f) of
the Evidence Ordinance that the common course of business hasbeen followed by this accused and that the evidence which couldhave been produced as far as the accused’s knowledge is concernedhas not been produced because it would have been of an un-favourable nature. Quite apart from these presumptions, whyshould a Court in the circumstances of the other facts referred topresume that the accused was either a cheat and a confidencetrickster or an ignoramus who did not know what he was sellingalthough he conducted himself in an unmistakable way to givethe confidence to the customer that he was buying a printedimported saree ?
I hold that in the circumstances of this case where there was astrong prima facie case which was unexplained by the accusedthere was no burden on the Court to consider the possibility thatthe transaction was other than what it was made out to be.
In this case the helplessness of the Analyst as reported in D2does not damage the prosecution case nor help the defence. I donot know on what material an Analyst could have expressed anopinion under s. 45 of the Evidence Ordinance which refers to anopinion as to foreign law or of science or of art if not with regardto the identification of finger prints or handwriting. I suppose
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RAJARATNAM, J.—Savundaranayagam v. Dayap&tm,
our fastidious ladies would have been more qualified to assistCourt on this matter with their not too infallible and fickleopinion whether PI was an imported saree or not.
I now refer to the other submission made by learned Counselthat there must be objective proof and nothing short of it andthat an admission made by an accused as to the nature of thearticle of which he could have known nothing was not a relevantadmission. It was argued that apart from this admissionthere must be independent proof presented by the prosecutionthat PI was a printed imported saree. I find it rather difficult toagree with learned Counsel on this point. The question is reallynot one of objective proof or subjective proof. The question iswhether the prosecution succeeded in proving PI as being whatit alleged it to be beyond reasonable doubt.
If this submission is .correct, then if the controlled article is atin of Cadbury’s chocolates or a tin of Horlick’s Milk, I supposeit will be necessary to call the evidence of some one from theCadbury’s or Horlick’s factory to identify the legends thereon inaddition to the circumstance that the customer asked forCadbury’s chocolates and Horlick’s Milk and he was sold thesearticles on this basis- In my view if that degree of proof isnecessary, than the burden on the prosecution will be to provesomething with mathematical accuracy which is never so. I holdthat the legends are admissible as circumstances accompanyingother circumstances as have been proved in this case. When aperson buys for instance a tin of Horlicks does he ever seek objec-tive proof ? The Court may presume even as the customer didthat the common course of business has been followed unders. 114 (e) of the Evidence Ordinance. The law does not place theCourt in a dark room so to speak forbidding it to use its commonsense, and enjoining it to be always a doubting Thomas.
In all the circumstances of this case, I hold that the finding ofthe learned Magistrate is correct. The sentence of imprisonmentis altered to 1 month's rigorous imprisonment and the fineimposed with its default sentence will stand. Subject to thisvariation the appeal is dismissed.
Appeal dismissed.Sentence altered.