044-NLR-NLR-V-49-SANTIAPILLAI-Appellant-and-SITTAMPALAM-Price-Control-Inspector-Respondent.pdf
138
SantiapiUai «. Sittampalam.
1948Present : Basnayake J.
SANTIAPIULAI, Appellant, and SI'P-TAMPAI;AM (Price ControlInspector), Respondent.
S.C. 1,010—M. C. Jaffna, 5,376.
Criminal procedure—-Witness—Prosecuting officer giving evidence—Conviction—Irregularity.
The mere fact that the officer ■who conducts a prosecution gives evidencein the course of it is not fatal to the conviction of the offender.
BASNAYAJCE J.—SarUiapiUai v. Sittampalam.
139
^Ppi^AT, from a judgment of the Magistrate of Jaffna.
Jt. L. Pereira, K.C., with H. V. Perera, K.C., and H. W. Tambiah,for accused, appellant.
Boyd Jayasuriya, C.C., for the Attorney-General.
January 29, 1948. BasnayakE J.—
The accused-appellant (hereinafter referred to as the appellant) wasconvicted of an offence punishable under section 5 of the Control ofPrices Ordinance, No. 39 of 1939, as amended by the Defence (Controlof Prices) (Supplementary Provisions) Regulations and sentenced toundergo rigorous imprisonment for a term of three months.
The appellant is a retail trader with a place of business at premisesNo. 46, 4th Cross street, Jaffna, situated in the quarter known as SmallBazaar. He is authorised to sell articles the distribution of which iscontrolled and has 255 consumers attached t.n his boutique by the PoodController. On February 24, 1947, one Sittampalam, a Price ControlInspector stationed at Jaffna in the performance of his duties decided toascertain whether Bombay onions or potatoes were being sold in theSmall Bazaar above the prescribed maximum price. He sent PriceControl Inspector Muttuvelupillai to purchase a pound of Bombayonions or potatoes from any boutique in Small Bazaar. Price ControlInspector Navaratnarajah accompanied him. Navaratnarajah’s functionwas to give a prearranged signal to Sittampalam, who followed him andremained in sight, if either article was sold to Muttuvelupillai above theprescribed maximum price. Muttuvelupillai was given a rupee noteby Sittampalam who made a record of its number. He carried noother money. Navaratnarajah carried no money at all. Muttuvelu-pillai carried a marketing bag with some green leaves in it to give himthe semblance of a casual customer. He went to the boutique of theappellant and asked for a pound of Bombay onions, and received it.He tendered in payment the rupee note he had with him. As the appellanthad no change he went over to the adjoining boutique, changed it andreturned to Muttuvelupillai 75 cents for the pound of Bombay onions,the prescribed maximum price of which was 19 cents. After the trans-action was over Navaratnarajah gave the prearranged signal and Sittam-palam came up and heard the story of the sale from Muttuvelupillai.Sittampalam recovered from the adjoining boutique the rupee notehe had given Muttuvelupillai and next weighed the Bombay onionsin the appellant’s scales in his presence and recorded in the appellant’sboutique his statement, the statement of the boutique-keeper nextdoor and the two Price Control Inspectors. The cash and the Bombayonions were parcelled and sealed immediately.
The evidence for the prosecution consists of the evidence of the threePrice Control Inspectors who deposed to the facts stated hereinbefore.The appellant gave evidence on his behalf and admitted the sale of apound of Bombay onions to Muttuvelupillai on the date alleged in thecharge but denied that he charged 25 cents or any sum above the maximumprescribed price. While admitting that Muttuvelupillai tendered
Cur. adv. vutt.
140
BASNAYAKJE J.—SarUiujriUai v. Sittampalam.
a rupee note in payment he denied that he took it. The appellant's versionis that when Muttuvelupillai asked him for a pound of Bombay onionshe weighed a pound of Bombay onions and gave it to the latter whotendered a rupee note. On being informed by the appellant that hehad no change, Muttuvelupillai went in the direction of a tea kiosk,returned and gave him 19 cents as he had been told earlier that thatwas the price. Later Muttuvalupillai returned with Price ControlInspector Sittampalam and Navaratnarajah, all of whom he knew tobe Price Control Inspectors.
The appellant alleges that the charge is false. The reason for thefalse charge he says is that 24 days previous to the day in question whilehe was transporting goods by cart he met Muttuvelupillai who stoppedthe cart and asked him to unload it. On his refusing to do so there wasan “ exchange of words ”. The appellant produced a document D 1in support. It is a bill for certain quantities of grain, rice, flour andsugar sold to one B. S. Pillai on February 3, 1947, bearing on the reversethe signature of Muttuvelupillai. The Price Control Inspector Muttu-velupillai admits his signature on the document but is unable to recallhaving spoken to the appellant on that day or the incident related byhim.
It was urged on behalf of the appellant that he would never have soldthe Bombay onions above the prescribed maximum price to Muttuvelu-pillai whom he knew to be a Price Control Inspector, and Counsel asksme to accept the evidence of the appellant and reject the evidence forthe prosecution. Great stress was laid on the omission of the prose-cution to call the boutique-keeper, one S. Atputhan, at whose boutique theprosecution alleged the rupee note was changed. The name ;of thiswitness was included in the list of witnesses for the prosecution as witnessNo. 3. He attended Court on the first day of trial April 16, 1947, wasordered to appear on the next date May 7, 1947, and on that date orderedto give persoanl bail in five hundred rupees to attend on May 28, 1947,the date for which the trial was refixed for want of time. On that datethe Magistrate recorded only the evidence of Sittampalam, the PriceControl Inspector, and refixed the case for June 11, 1947, on which datethe trial was again refixed for July 3, 1947, and summons ordered onall the prosecution witnesses. When the case was taken up on July3, 1947, the Price Control Inspector Sittampalam drew the attentionof the Court to the fact that summons had not been served on Atputhan,witness No. 3, and Navaratnarajah, witness No. 2. The trial was finallyfixed for July 23, 1947, and summons re-issued on witnesses Nos. 2 and 3.When the trial was taken up on July 23, 1947, witness No. 3 was absentMuthuvelupillai’s evidence that the witnesses had left for India sincethe last date of trial is uncontradicted.
In these circumstances I am unable to hold that the prosecution has•withheld the evidence of this witness and presume under section 114illustration (g) of the Evidence Ordinance that his evidence would, ifproduced, be unfavourable to the prosecution.
A legal objection to the conviction was taken on the ground that thePrice Control Inspector Sittampalam who was a witness for the prose-cution had led evidence in the case. In support of this objection Counsel
BASNAYAJCE J.—SantiapiUai v. Sittampalam.
141
referred me to the cases of Police Sergeant Kulatunga V. Mudalihamy et al.1and A. J. M. de Silva v. Magistrate, Gampola, and Police Inspector Herat AIn the first-named case at an early stage in the proceedings the pleader forthe accused stated that his position was that the case was a conspiracy bythe prosecuting Sergeant Kulatunga and the Arachchi against the accusedand objected to the Sergeant conducting the trial. He also submittedthat his client had submitted a petition against the Sergeant. TheSergeant challenged the statement and the Magistrate made the followingorder :—
“ It is not Uncommon for the prosecuting Sergeant or Inspector togive evidence. The Sergeant will proceed to conduct the trial ”. TheSergeant subsequently gave evidence for the prosecution. He was notmerely a formal witness. His examination in chief occupied two anda half pages of the record and his cross-examination another two and ahalf pages. In cross-examination he admitted that the second accusedhad sent a petition against him. In these circumstances it was held thatit was not in the interests of justice that the prosecution should havebeen conducted by Sergeant Kulatunge.
The second case was an application for a Mandate in the nature ofa Writ of Mandamus on the Magistrate of Gampola and Police InspectorHerat. The question for decision there was whether a Proctor retainedby the injured person was entitled to appear and lead evidence for theprosecution in preference to the Police Inspector in charge of the case.De Kretser J. held that the Police Inspector was not justified in opposingthe appearance of the Proctor for the injured party.
Neither of these cases has any application to the present. LearnedCrown Counsel referred me to the case of Sanmugam Pillai v. Ferdinands3wherein this Court refused to set aside a conviction on the ground thatthe officer who conducted the prosecution was a material witness forthe prosecution. I am of opinion that the mere fact that the officer whoconducts a prosecution gives evidence in the course of it is not fatal tothe conviction of the offender. Nevertheless an officer whose duty is toconduct the prosecution in certain classes of cases should, if he knowsbeforehand that in any particular case his evidence is material to thecase, arrange for some other officer to conduct the prosecution and avoida situation in which he has to perform the dual role of prosecutor andwitness, for it may turn out that in certain events the performance ofsuch a dual role is not in the interests of justice, I am satisfied thatin this case the interests of justice have not suffered by reason of the factthat Price Control Inspector Sittampalam who prosecuted was also awitness for the prosecution.
For the reasons I have stated I am not prepared to interfere with thefinding of the learned Magistrate. It has been urged by Counsel thatthe sentence of three months’ rigorous imprisonment is too severe havingregard to the age of the accused his antecedents and his position in life.
The accused has admitted a previous conviction of an offence underthe Control of Prices Ordinance, No. 39 of 1939.- It is an imperativerequirement of section 5 (6) (a) of that Ordinance that a person convictedof a subsequent offence committed after conviction of the first offence1 {1940) 42 N. L. R. 33.* {1943) 44N. L. R. 320.
(1942) 46 N. L. R. 380.
142
BASNAYAKE J.—Petris v. Dole.
shall be punished with imprisonment of either description for a termnot exceeding two years. Having regard to the mniimnm punishmentprescribed for the offence, I am not prepared to hold that the sentenceimposed by the learned Magistrate is excessive.
The appeal is dismissed.
Appeal dismissed.