017-NLR-NLR-V-69-S.-PONNIAH-Appellant-and-M.-F.-SHERIFF-Food-and-Price-Control-Inspector-Re.pdf
Ponntah v. Sheriff
67
1966Present: Alles, J.
S. PONNIAH, Appellant, and M. F. SHERIFF (Food and Price ControlInspector), Respondent
– S. C. 312/66—M. C. Kalmunai, 21,691 ■
Control of Prices Act—Sale of potatoes—Excess price—Accuracy of scales—Evidenceof tucighing on accused's scales only—Sufficiency of such evidence—Quantumof proof required from the prosecution—Evidence Ordinance, s. 114.
Judicial precedent—Scope of principle of stare decisis.
Tho accused was charged with selling a pound of potatoes at 60 cents a poundwhen the controlled price of a pound was 34 cents. The prosecuting PriceControl Inspector gave evidence that, immediately after the sale, he weighedthe potatoes in the accused’s balance and found that it weighed a pound. Theaccuracy of tho accused’s scales was not challenged in the course cf thecross-examination of the prosecution witnesses; nor did the accused leadevidence to rebut the natural inference to be drawn in such a case that hisscales were accurate.
Held, that, on the evidence led in the case, the accuracy of the scales on whichthe potatoes were weighed was sufficiently established by the prosecution.Sub-Inspector of Police v. Wassira (46 N. L. R. 93) not followed.
Held further, that the Court was not bound by an earlier decision in whichmaterial cases and statutory provisions were not considered.
_/_PPEAL from a judgment of the Magistrate’s Court, Kalmunai.
A. H.C. de Silva, Q.C., with P. Nagendran, for the accused-appellant.
L. B. T. Premaralne, Senior Crown Counsel, with Aloy N. Ratnayake,Crown Counsel, for the Attorney-General.
Cur. adv. vult.
98
ALLES, J.—Ponniah v. Sheriff
July 19, 1966. Alles, J.—
The accused, in. this case was charged on two counts under the Controlof Prices Act. On the first count he was charged with selling a pound ofpotatoes at 50 cents a pound when the controlled price of a pound was34 cents ; on the second count he was charged with failing to exhibit in aconspicuous place in his boutique the price at which price-controlledarticles have to be sold. After trial he was convicted on both countsand sentenced to a term of 6 months rigorous imprisonment and a fine' of Rs. 1,000 in default a further term of six months rigorous imprisonmenton the first count, and a fine of Rs. 500 in default six weeks rigorousimprisonment on the second count. Counsel for the accused-appellant hasnot canvassed the conviction and sentence on the second count but hasurged that the conviction on the first count cannot be maintained on theground that the accuracy of the accused’s scales on which the potatoeswere weighed has not been established by the prosecution by satisfactoryevidence. In support of his submission, Counsel has relied on certaindecisions of this Court to which I shall presently refer.
The facts of the case are not in dispute and may be briefly stated.According to the evidence of Food and Price Control Inspector, Sheriff,he sent a decoy, Somadasa, with a marked rupee note to buy a pound ofpotatoes from the accused’s boutique. Another Inspector, Karunaratne,was sent to watch the sale. Somadasa went to the boutique and askedfor a pound of potatoes. He inquired for the price of a pound from theaccused and was informed that it was 50 cents. The accused then weighedthe potatoes on his balance and gave Somadasa the potatoes and thebalance of 50 cents. Sheriff then rushed up, revealed his identity, tookcharge of the potatoes and the balance sum of 50 cents from Somadasa,weighed the potatoes in the accused’s balance and found that it weigheda pound. He tested the balance by interchanging the pans and foundthem to be correct. Counsel, however, submits—a submission withwhich I agree—that this test does not establish the accuracy of the scales.The accused did not give evidence at the trial and, in spite of a lengthycross-examination of the prosecution witnesses, the only substantialsuggestion made to them was that the commodity in question may not bepotatoes but some other kind of yam. However, in the course of Counsel’ssubmissions at the end of the trial, the accuracy of the scales on whichthe potatoes were weighed appears to have been raised by the defence.
Counsel for the Crown submits that on the evidence led in the case, theprosecution has established the accuracy of the scales on which thepotatoes were weighed and in particular draws my attention to the factthat the accuracy of the scales was neither challenged in the course of thecross-examination of the prosecution witnesses nor did the accused bygiving evidence seek to rebut the natural inference to be drawn in sucha case that his scales were accurate. In De Alwis (Food and Price ControlInspector) v. Subramaniam S. C. 787, 788 M. C. Badulla 7812, S.C. Minutesof 23.9.49, Basnayake, J. (as he then was) said :—
“ I think it can safely be presumed that in the ordinary course of
business a trader will not keep a balance which gives the customer more
ALLES, J.—Ponniah v. Sheriff
8#
goods than the quantity he purports to sell, nor is a trader likely tokeep a weight which weighs more than the weight indicated on its face,for the rea-,on that a trader who sells with such scales or such weightsis inviting loss and not gain. Profit being the motive of trade, it mustbe presumed that a trader’s scales are not inaccurate at least to theextent of causing him loss. A person who claims that he trades withscales which favour the customer must rebut the presumption in favourof the accuracy of his scales and weights. ”
The leurned Judge thereafter draws attention to the various provisionsof the Weights and Measures Ordinance which provide for the periodicexamination and stamping of weights and the imposition of penaltiesfor the possession of false weights to indicate that the law seeks to ensurethat traders carry on their business regularly and without prejudice tothe public. When a trader carries on business using scales and weightswhich represent to prospective customers that the scales and weights areaccurate, I do not think it is open to such a trader to submit that theprosecution must prove the accuracy of the scales. The prosecution needonly go so far, if the defence challenges that fact or concedes that theweights and scales are not accurate. In this case the defence did notdispute that what was represented to Somadnsa w as, that a pound ofpotatoes was sold to him and weighed on scales, which prima facie wererepresented to be accurate. When the accused therefore in the ordinarycourse of business, sold to his customer what purported to be a pound ofpotatoes weighed on his own scales, it must be presumed not only thathe represented that his scales were accurate but also, in the absence ofany evidence to the contrary, that they arc in fact accurate ; that is thelogical inference to be drawn from the proved facts. In my view this isa case to which the Court may legitimately presume the existence ofsuch a fact under Section 114 of the Evidence Act. As Swan, J., saidin Joseph v. M. D. If. Perara1 in dealing with a case of profiteeringin bread, where the Magistrate had acquitted the accused on theground that the accuracy of the scales had not been established bythe prosecution., “ the Magistrate did not realise that the accused wasunder a legal obligation to use correct weights himself and if the loafweighed 15 ounces according to the accused’s own scales and weightsthere was, to say the least, a prima facie case made out against theaccused”. The unreality of accepting the submission of the defencethat in every case of this kind the burden is on the prosecution to provethe accuracy of the scales, may be illustrated from the facts of the instantcase itself. The price charged for the controlled commodity was almost50 per cent, more than the controlled price. It must therefore meanthat the accused, without his knowledge, wras using scales that were soinaccurate that a customer received 1J times the quantity of thecommodity for one unit of the price. Is it conceivable that any personcarrying on his daily business as a trader would use so inaccurate a pairof scales ? In this connection, Mr. Premaratne for the Crown broughtto my notice the interesting case of Nicholas v. Pennya. .In this»(1552) 53 N. L. JR. 502 at 503.‘ (1950) 2 K. B. 466.
TO
ALLES, J.—Ponniah v. Sheriff
case the question, that arose for decision was the accuracy to be attachedto a watch or speedometer which was used to calculate the speed at whicha motorist was driving his car. The police constable gave evidence thathe drove a police car at an even distance behind the defendant’s motorcar for four-tenths of a mile along a road subject to a speed limit of 30m .p.h. and that the speedometer showed an even speed of 40 m.p.h. TheCourt (Lord Goddard, C.J., Humphreys and Morris, JJ.) held that whena watch or speedometer records a particular time or speed, that is primafacie evidence of that time or speed, notwithstanding that no evidence isadduced as to the accuracy of the device. Said Lord Goddard at p. 473 :—
‘ The question in the present case is whether, if evidence is given thata mechanical device such as a watch or speedometer—and I cannotsee any difference in principle between a watch and a speedometer—recorded a particular time or a particular speed, which is the purposeof that instrument to record, that can by itself be prima facie evidence,on which a court can act, of that time or speed. It might be that in aparticular case the court would refuse to act on such evidence. Forinstance, if it were a quest'on whether a man died before midnighton a certain day and one party alleged that he died half a minute before12 o’clock and another party that he died half a minute after 12 o’clock,and the first party said “ It was half a minute before 12 because Iobserved the time by the clock ” it might be that the court would say“ we will not find that as a fact unless we are satisfied as to the accuracyof the clock In the present case counsel for the prosecution calledour attention to the fact that the speedometer must have been veryinaccurate if the offence was not committed. The offence is drivingat a speed exceeding 30 m.p.h. and the evidence is that the speedo-meter showed at the time in question that the defendant was exceeding30 m.p.h. by no less than 10 m.p.h. It would be a considerable errorin the speedometer if it were as much out as that.’
Counsel for the Crown submits, with considerable force, that the sameanalogy would apply to the facts of the present case. The variation inthe price demanded for the controlled commodity was so great that theaccused’s scales must have been unreasonably inaccurate. He thereforeargues that the accused’s scales in this case must be prima facie presumedto be accurate, in the absence of any evidence to the contrary.
This case is also useful for another purpose. Lord Goddard had toconsider whether he was bound by a decision of another Bench of threeJudges which laid down the proposition that all speedometers must betested and the Court can only act on the evidence of a police constablesupported by a speedometer reading if the speedometer was tested. LordGoddard thought that the principle laid down in this case went too far,particularly as certain other decisions relevant to the issue had not beencited to the Judges in that case ; he therefore adopted the dictum laiddown by the Court of Appeal in Young v. Bristol Aeroplane Co. Ltd.1‘ that where material cases and statutory provisions which show'(1944) K. B. 718.
ALLES, J.—Ponniah v. Sheriff
n
that a Court had decided a case wrongly, were not brought to itsattention, the Court is not bound by that decision in a subsequentcase This observation has some bearing on the submission made byCounsel for the accused-appellant in the present case, who cited certaindecisions of this Court in support of the proposition, as to the quantum ofevidence required from the prosecution to prove the accuracy of thescales and which decisions, according to him, were binding on me.
•In Sub-Inspector of Police v. Was sir a the Crown appealed froman acquittal. The Magistrate acquitted the accused for the reasonthat there was no evidence as to the accuracy of the scalesand weights on which the bread was weighed, the bread having beenweighed only on the accused’s scales. In appeal the further point wasraised by appellant’s Counsel that, since the amounts of bread controlledwere lG-ornec and 8-ouncc loaves the accused had not offended againstthe provisions of the Ordinance in selling two quarter-lb. loaves at morethan the controlled price. Howard. C. J. considered this latter submissionsound, and then proceeded to make the following observation on thepoint raised by the Crown in appeal :
‘ With regard to the weighing of the bread on the scales of therespondent, criminal cases of this kind must be established beyondall reasonable doubt. With no evidence as to the accuracy of thescales it cannot be said that this standard of proof has been reached.’
The head note of the report of this ease correctly represents, in my view,the two matters on which the learned Chief Justice came to a decision,the second of which was that the prosecution was bound to establish bysatisfactory evidence the accuracy of the scales and weights on which thebread was weighed. In 1947 Howard C. J. had occasion to consider thedecision in Wassira’s case in Segarajasingham (Food and Price ControlInspector) v. William Singho (S. C. 810/ M. C. Galle 5343/S. C. Minutes of19.8.47) where he distinguished the facts in the former case from thefacts in the latter case. In Segarajasingham v. William Singko therewas the additional evidence, that after the controlled commodity wasweighed on the accused’s scales, it was again re-weighed on the Inspector’sscales with standard weights and tallied with the weight as found on theaccused’s scales. This same additional evidence was available in thelater cases that were cited before me—Gnanaiah v. Kandiah2, De Alivis v.Svbramaniam (1952) (supra) and Joseph v. M. D. Perera (1952) (supra).
Gnanaiah v. Kandiah was a decision of two Judges ; it i8 not apparentfrom the report why two Judges should have heard this appeal whenordinarily it should have been decided by a single Judge ; there is nothingin the report to indicate that the case had been referred to a Bench of twoJudges as a result of any important or controversial question of law.This decision merely re-affirmed the view taken by Howard, C. J. (Soertsz ,S.P.J. agreeing) in the unreported Galle case, that the accuracy of theaccused’s scales had heen established by the prosecution, when the1 (1946) 46 N. L. B. 93.*(1948 ) 49 N.L. B. 163.
11-Volume LXLX
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AXLES, J.—Ponniah v. Sheriff
additional evidence referred to earlier, was available. Although Wnssira’scase was referred to in the course of the judgment by the learned ChiefJustice, the decision did not endorse the view taken by him in the earliercase, that where the only evidence consisted of the commodity beingweighed on the accused’s scales, the prosecution had not proved bysatisfactory evidence the accuracy of the weights and scales. AsBasnayake, J. said in the later case of DeAlicis v. Subramauiam the ratiodecidendi in Gnanaiah v. Kandiah was that “ in the absence of any evidenceindicating the inaccuracy of the weights and scales, the accused shouldhave been convicted ” and according to Swan J. in Joseph v. M. D. II.Perera “ the ratio decidendi of that appeal was not the absence of evidence■regarding the accuracy of the scales and weights employed ”.
I am t herefore unable to agree with the submission of learned Counselfor the accused-appeallant that Gnanaiah v. Kandiah reaffirmed the viewtaken by Howard C.J. as to the quantum of evidence required from theprosecution to establish, the accuracy of the scales and weights. Evenif the case of Gnaniali v. Kandiah can be called a decision of a DivisionalBench, I do not agree that it lays down the proposition of law for whichCounsel for the accused-appellant contends. The evidence in the instantcase is almost on all fours with the evidence that was available in 11 'assira’scase and the question for determination in the present case is whether, insimilar circumstances, the prosecution has established by satisfactoryevidence the accuracy of the scales and weights. With all respect to thelearned Chief Justice I am unable to subscribe to the proposit ion of lawlaid down in that judgment with rcgaixl to the quantum of evidencerequired from the prosecution. Had the statutory provision laid downin Section H I of the Evidence Act been brought to the notice of thelearned Chief Justice in IVassira’s cerse it may well be that lie might havecome to a different conclusion.
1 think, therefore, that the accused has been rightly convicted on thefirst count. In regard to the default sentence passed by the learnedMagistrate on the first count, the Magistrate, on an erroneous view ofSection 312 (1) (c) of the Criminal Procedure Code, has imposed a defaultterm of six mouths’ rigorous imprisonment when it should have beena term of six weeks’ imprisonment. I therefore alter the default sentenceon the first count to one of six weeks’ rigorous imprisonment instead ofone of six months. Subject to this variation the appeal is dismissed.
Appeal mainly dismissed.