053-NLR-NLR-V-57-SHARUFDEEN-Appellant-and-SINNADURAI-Respondent.pdf
1955Present .-‘Fernando, J.
SHARUFDIiEX, Appellant, and SIXXADURAI, RespondentS. G. 942 of 19-5-5—31. C. Jln/ara, 40,0-52
Shop and OJp.cc Employees (Regulation of Employment and Remuneration) Act A'o. 19of 195!—Closing order—Contravention thereof—Serving ofcustomers—
Accessary ingredient—Scclioyis -1-3 (I), C2 (2), OS.
The presence of customers in ft shop after closing time does not conclusivelyestablish that- the shop was kept open for the purpose of serving of customers.Section 02 (2) of the Shop and OlKco Employees (Regulation of Employmentand Remuneration) Act docs not raise any presumption that the presence ofa customer presupposes that the shop was kept open for serving him.
Tho accused was charged with keeping his shop open for the serving ofcustomers in contravention of n closing order. There was evidence of thepresence of certain persons who had conic to take away goods from the shopon behalf of ft man who had purchased the goods earlier.
Held, that tho evidence was not by itself conclusive proof of “serving ofcustomers “ within the meaning of sections 43 (1) and CS of tiic Shop andOffice Employees (Regulation of Employment and Remuneration) Act.
-‘^^-PPliALi from a judgment, of the Magistrate’s Court, Matara.
3f. 31. Kitmaraknlasiugham, for the accused appellant.
George Candappa, Crown Counsel, for the Attorney-General.
Cur. adf. vult.
December G, 1955. Pkkxando, J.—-
In this case under the Shops and Office Employees Act 19 of 1954,the accused has been convicted on two charges of (1) keeping his shopopen for the serving of customers in contravention of a closing order,and (2) of not preventing a customer from entering the shop at a timewhen the shop is required by a closing order to be closed for the servingof customers.
The Inspector of Labour stated that on the 5th of March, 1955 (whichwas a Saturday, a day on which the accused’s shop should have beenclosed at 2 p.m. for the serving of customers) he saw tho door of theshop open at 2.40 p.m. and a number of people inside. He found intho shop eight people of whom one was the accused and three were hisemployees. The employees were writing out some bills. As to the otherfour persons, there was only the defence evidence to indicate who they
■were. A witness Charles Silva stated that ho was a lorry owner and thatlie had come to the shop at 2.30 p.m. together with his lorry driver andcleaner, having been instructed by one Cassini, a trader of Tanga lie toremove certain goods which had been ordered from the accused’s shop.The witness said that when he asked for the goods the accused told himto come oh 3Ianday stating that it was not possible to give the goodsafter 2 p.m. that day. Cassini confirmed that he had given those instruc-tions to Charles Silva. The prosecution were unable to contradictCharles Silva’s evidence as to the purpose for which he and his driverand cleaner had come to the shop that day, and in view of Cassini’sevidence it has to be accepted as proved that thuy did come for thisstated purpose. That being so there is no doubt that those three personswere customers fn the sense that they had come to take away goods onbehalf of a purchaser. But that docs not dispose of the question whetherthe prosecution has proved that the shop was kept open that afternoonfor the purpose of serving customers. I have been referred to an mi-reported decision of my brother do .Silva in 31. C. 31 > tarn 37.174, S. C. 1,409of 10.2.55. It was there held that "it was not incumbent on the pro-secution to prove that a sale had in fact taken place ” to maintain acharge under section 43 (1) of the Shops and Office Employees Act. Withrespect I entirely agree, but I consider that there must be evidence toshow that the accused kept his shop open for tho purpose of servingcustomers. Such evidence was present in the case just mentioned, forthere the accused was seen weighing some sugar and handing it overto a boy who tendered a five-rupee note.
In the present case the relevant paragraph in the definition of '' servingof customers ” woidd be (g) “ the delivery at such shop …. ofgoods purchased while such shop is kept open ”. Applying the dreisionin the unreported case I would say that it is not necessary for tho pro-secution to prove an actual delivery after closing time of goods purchasedbefore the closing time. But the prosecution must prove that the shopwas kept open for the purpose of making or facilitating such a delivery.That being so it was incumbent to prove in the present case that onepurpose at least for which the accused kept his shop open was in orderthat deliveries may be made of good? purchased earlier. The 3E igistratelias not found, and indeed on the whole evidence he coulcl only havefouixl with difficulty, that the existence of this purpose had been proved.
He has misdirected himself as to the effect of section G2 (2) of the Act.That section jirovides that any person found in a shop within the hoursprohibited by a closing order shall be presumed, until the contrary isproved, to have been a- customer. So that undoubtedly, even withoutthe evidence of Charles Silva, there was a presumption that he and theother three persons (not being employees) were customers. But thesection does not, as the 31 igistrate thinks, raise any presumption thatthe presence of a customer presupposes tint the shop was kept openfor serving him. In my opinion the presence of customers in a shopafter closing time does not conclusively establish that the shop was keptopen in order to serve them any more than the mere absence of customerswould disprovo the existence of a purpose of serving customers if suchpurpose can be proved aliter.
I would hold that the first charge (under section 43 (1) of the Act)must fail because, although a customer may have been present, therewas no evidence to establish that the shop was kept open to servecustomers.
The second charge was that the accused did not prevent customersfrom entering his shop during the prohibited hours. The defence didnot lead any evidence which could assist them on this charge. Butneither the prosecution nor the Migistrate appear to have realised thatit was indeed a charge distinct from the first one. In the circumstancesI think it quite sufficient to set aside the conviction on both charges andto order the accused to be discharged after admonition under section325 of the Criminal Procedure Code. I find that the accused has alreadypaid the fine of Rs. 500 . That sum must be returned to him.
Convictions set aside.