053-NLR-NLR-V-41-PERERA-v.-NADAR.pdf
MOSELEY J.—Perera v. Nadar.
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1940Present: Moseley J.
PERERA v. NADAR.852—M. C. Galle, 2,010.
Weights and Measures Ordinance—Charge of using false weights—Evidence forprosecution—No evidence by Examiner of Weights and Measures—Ordinance No. 8 of 1876, s. 16 (Cap. 127).
Where a person is charged with using false weights the Court shouldbe satisfied by evidence that the impeached weights were tested by com-parison with standard weights and found wanting.
A charge of using false weights is not bad merely because it rests onthe evidence of a person not authorized under the Ordinance to examineweights and measures.
Wickremasinghe v. Ferdinandus (5 Balasingham’s Notes of Cases, p. 17)followed.
^^PPEAL from a conviction by the Magistrate of Galle.
Pandita Gunewardene, for accused, appellant.
Nihal Gunesekera, C.C., for complainant, respondent.
Cur. adv. vult.
February 20, 1940. Moseley J.—
The appellant was charged under section 16 of Chapter 127 of the Lawsof Ceylon (Weights and Measures Ordinance) with having in his possessionand using two unstamped weights, namely, one 1 lb. weight ” less inweight than the standard weight by i oz. and one “ 2 oz. weight ” less in
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MOSELEY J.—Perera v. Nadar.
weight than the standard weight by the weight of a 10-cent coin. HewaS convicted and fined Rs. 10, in default one week’s simpleimprisonment.
It is not an offence against any provision of the Ordinance, as far asI am aware, to “ have in possession ” such weights. It may be that thewords crept into the charge as an embellishment of the somewhat baldcharge of “ using ”. It must be assumed therefore that the accusedwas convicted of using the weights. The learned Magistrate in hisjudgment was unable to hold that the weights were not stamped ; thatelement of the charge was accordingly eliminated.
The facts shortly are these :The shop of the accused was entered by a
police constable to whom it had been reported that some trouble hadoccurred. He took the parties and the impugned weights to the policestation. The weights were then taken to the Kachcheri where they werecompared by the Mudaliyar with the copies of the standard weightspreserved in the Kachcheri in accordance with the provisions of section3 (d) of the Ordinance. The Mudaliyar gave evidence that the accused’sweights respectively were short to the extent set out in the charge.
The facts are not disputed and at the trial the accused confined hisdefence to the contention that neither the constable nor the Mudaliyar,upon whose evidence the case for the prosecution rests, was an “ author-ized person By that, I take it, was meant that neither was anExaminer of Weights and Measures appointed under the provisions ofsection 10 of the Ordinance.
On appeal the argument of Counsel was confined to this point.
Sections 12 and 14 of the Ordinance impose certain duties uponexaminers, one of which is periodically to enter shops in their area, examineall weights, and seize such as are not according to standard and producethem at the trial of the offender. These, no doubt, are the circumstancescontemplated in section 16 which defines the offence of a person in whoseshop is found any weight not in conformity with standard.
Counsel for the appellant referred me to the case of Altendorf v. Kadu-ruwel Chetty *, in which the opinion was expressed that the finding con-templated by the Ordinance was the “ finding by a person authorized tosearch for false weights, and not a mere finding by some other individual ”.A practical reason for this is not hard to find as it would be obviouslyinconvenient, to put it mildly, if any member of the public were at libertyto enter a shop with a view to initiating proceedings of this nature andto giving evidence as to the inaccuracy of the weights.
The case of Sub-Inspector of Police, Moratuwa v. Naina Mohamed ’ wasalso cited. The headnotes to this case would seem to be somewhat mis-leading inasmuch as the two distinct offences of “ selling ” and “ finding ”are confused. This authority, however, goes no further than to affirmthe proposition that when a person is prosecuted on a charge that falseweights have been found in his shop there must be proof that the impugnedweight was found by a person authorized under the Ordinance.
The charge in this case, when the meaningless portion referring topossession is eliminated, is that of user. It seems to me that a charge for
1 5 S.C. C. 201.
* 29 N. L. R. 351.
Abdul Wahid v. Mohammed Hassim.
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using false weights would be difficult of proof if the person who suspectedthat he was being defrauded had to await the intervention of an examinerduly appointed under the Ordinance. The examiner, upon beinginformed, would visit the shop but it would be impossible to provethat any weights that he found on the premises had in fact beenused. Only a conviction on a charge that false weights were found couldresult.
In the present case the attention of a police constable was attractedby the dispute between trader and customer. He took the impugnedweights to the Mudaliyar at the Kachcheri where the standard weightsare preserved. The Mudaliyar compared the impugned weights with the .standard and found the former wanting. Later he gave evidence tothat effect.
In Wickramasinghe v. Ferdinandus de Sampayo J. expressed theopinion that the Court should be satisfied by evidence laid before it thatany impeached weights were tested by comparison with standards. Inthe present case th^ evidence of the Mudaliyar was not challenged. Onlyhis status was queried. It seems to me that it was for the Court to saywhether or not it was satisfied that the weights were false, and, as far asI can see, there was no reason why it should not have been so satisfied.
There is, however, no evidence that the 2 oz. weight was used and theconviction must in that respect be modified. I therefore affirm theconviction and the sentence on the charge of using a 1 lb. weight not inconformity with the standard weight.
The appeal is dismissed.
Affirmed.