DIAS J.—Abdul Majeed v. Attapattu.Present: Dias J.
ABDUL MAJEED. Appellant, and ATTAPATTU (Price ControlInspector), Respondent
299—M. C. Kandy, 25,929.
Sate of mutton with not more than 25 per cent, bones, above controlled price—Duty of prosecution to prove the bone content of the mutton sold—Regulations made under Control of Prices Ordinance, No. 39 of 1939.
Where the accused was charged with selling mutton with not morethan 25 per cent, bones above the controlled price—
Held, that it was the duty of the prosecution to prove the actualpercentage of bones in the mutton which was sold.
.A. PPEAL against a conviction from the Magistrate’s Court, Kandy.
Colvin R. de Silva, for the accused, appellant.
J.G. T. Weeraratne, C.C., for the Attorney-General.
Cur. adv. vult.
June 17, 1947. Dias J.—
The appellant was charged with selling two pounds of mutton forRs. 3 which is a price in excess of the maximum price of Rs. 2.10 fortwo pounds of mutton with not more than 25 per cent, bones incontravention of the regulations made under the Control of PricesOrdinance, No. 39 of 1939, and published in Ceylon Government GazetteNo. 9,573 of July 1, 1946.
The appellant is a trader in the Kandy market. On October 5, 1946,a decoy went to his stall and demanded two pounds of mutton andtendered a five-rupee note, the number of which had been previouslynoted by Price Control Inspector Attapattu. The appellant gave thedecoy two pounds of mutton containing “ a little bone ” and two rupeeschange. The raiding party then appeared on the scene. The muttonwas duly weighed in the appellant’s presence, and in his possession wasfound the five-rupee note. Admittedly, no attempt was made to ascertainthe percentage of the bone content of the mutton.
The Magistrate convicted the appellant and imposed a fine of Rs. 500.
The point taken in appeal is that the prosecution has failed to establishan essential ingredient of the charge, and that, therefore, the appellantis entitled to be acquitted.
The regulations deal with country beef, Australian beef and muttonwhich is defined by Regulation (v) (c) to mean the flesh of a sheep orgoat, but shall exclude all forms of offal and imported meat. It isto be observed that this definition does not exclude the bone content ofmutton. The regulations, however, make it plain that in selling muttonthe bone content must not exceed 25 per cent, of the total weight sold.Regulation (vi) directs “ that when any mutton is sold, the weight ofbones sold therewith shall not exceed 25 per cent, of the total weightsold”. Regulation (v) (e) provides that the percentage of bones soldwith any mutton shall be calculated on the total weight sold. It is,
DIAS J.—Abdul Majeed v. Attapattu.
therefore, clear that the sale of any mutton, whether at the controlledprice or above it, with a bone content exceeding 25 per cent, of the totalweight sold is unlawful. A trader who contravenes this prohibitionwould render himself liable to be punished under section 5 (6) of theOrdinance.
The Regulations also control the price of mutton which may belawfully sold. Regulation (iv) react with the third Schedule providesthe maximum price per pound for mutton with not more than 25 percent, bones. That is to say Rule (iv) read with the third Schedule fixesthe maximum price for which mutton can be . lawfully sold. Therewas no need to fix the maximum price for the sale of mutton witha bone content in excess of 25 per cent, of the total weight sold, becausethe sale of such mutton is unlawful. In the case of Kandy the maximumprice for mutton with not more than 25 per cent, bones is fixed atRe. 1.05 per pound.
The appellant’s contention can be summarised as follows : There isnothing in the regulations which makes it illegal for a trader to sellfor any price mutton with a bone content exceeding 25 per cent, of thetotal weight sold. This is fallacious because Regulation (vi) penalisessuch a sale altogether. It was next submitted that it is clear from thecharge that the appellant was accused of committing a breach ofRule (iv) read with the third Schedule for selling two pounds of muttonwith not more than 25 per cent, bones above the controlled price. Thatbeing so, it is urged that in order to secure the conviction of the appellantunder Rule (iv) there were four essential ingredients which had to beestablished beyond reasonable doubt: (1) that the accused sold “ mutton ”,
that the total weight of the mutton sold by the appellant aggregatedtwo pounds, (3) that the two pounds of mutton sold by the appellantwere with not more than 25 per cent, of bones, and (4) that the pricecharged exceeded the controlled price of Re. 1.05 per pound. Thedefence admits that the prosecution has established ingredients (1), (2)and (4); but it is contended that ingredient (3) has not been establishedand that, therefore, the appellant must be acquitted.
For the Crown it is urged that ingredient (3) is not one which theprosecution need prove. It is pointed out that in Pinto v. The PriceController1 a somewhat similar contention had to be considered. Inthat case the accused was asked for a pound of beef. The accused gavethe customer a pound of beef without bones but charged a price whichwas above the controlled rate. In appeal it was argued, as is arguednow, that the conviction could not stand because what was controlledwas meat with not more than 25 per cent, bones, and that, therefore,the sale of meat without bones was not controlled. This contentionwas rejected. Howard C.J. said: “ In my opinion on a strict inter-pretation of the Order, beef without bones is controlled; but a sale isallowed at the. controlled price of beef which contains 25 per cent, byweight of bones.” According to the Crown the resulting position isthis: (a) The sale of mutton without bones above the controlled priceis an offence—Pinto v. The Price Controller (b) The sale of muttonwith not more than 25 per cent, bones above the controlled price is also
1 (1946) 47 N. L. R. 40.
DIAS J.—Abdul Majeed v. Attapattu.
an offence, (c) The sale of mutton with a bone content exceeding 25per cent, of the total weight sold—whether at the controlled price orabove it—is prohibited and unlawful.—Regulation (vi). It is, thereforesubmitted that there was no necessity for the prosecution to provein'this case what the bone content of the mutton sold was. If it was25 per cent, or below that, the sale was above the controlled price andthe offence was established. If ihe bone content exceeded 25 per cent,it was nevertheless an offence and the proof of that fact would helpneither side. The prosecution, finally, submits that the charge againstthe appellant is that he sold two pounds of mutton above the controlledprice and that was duly established by the prosecution.
These regulations are a penal enactment, and must, therefore, bestrictly construed—Sub-Inspector of Kandy v. Wassira I agree withappellant’s counsel that it is clear that the charge was for a breach ofregulation (iv) read with the third Schedule, which shows that what iscontrolled is the sale of mutton with not more than 25 per cent, of bonesabove the controlled price. Had the prosecuting officers brought theirminds to bear on the matter, it would have been easy to separate thebone from the meat and ascertain whether the bonesT if there were any,weighed eight ounces or more. This they failed to do. The onlyevidence on the point is that of Price Control Inspector Attapattu whoin cross-examination said: “ There were no bones separately, but a littlein the mutton.” This point was brought to the notice of the Magistratewho said “ Although there is no proof with regard to the actualpercentage of bones, this is not a fatal defect, and I am satisfied onthe evidence that the article sold comes within the description ofmutton.” That is not the point. Regulation (iv) under which thecharge was laid controls only mutton with not more than 25 per cent,of bones and this is an ingredient of the offence charged. The pointmay be highly technical, but I do not think a defect in the proof of thisnature can be slurred over.
In my opinion the ingredient (3) was one which the prosecution shouldhave proved. Regulation (iv) requires it, and the prosecution was in aposition to prove it. This is a criminal case so that the charge must bestrictly proved beyond reasonable doubt. I am, therefore, of opinionthat there was in the proof of the prosecution a fatal defect whichvitiates the conviction.
The appellant cannot be convicted of an attempt to commit the offencecharged for two reasons. In the first place the Ordinance does notpenalise attempts. In the second place, section 490 of the Penal Codeis restricted to attempts to commit offences under the Penal Code—Kachcheri Mudaliyar v. Mohomodu
I reach, this conclusion with regret because I am satisfied that it wasthe intention of the appellant to commit a breach of the law. There isno point in sending the case back for a retrial because the materialevidence must have long since perished.
The conviction is quashed, and the appellant acquitted.
» (1920) 21 X. L. R. 369 Div. Ct.
• (1915) 46 X. L. R. 93.
ABDUL MAJEED, Appellant, and ATTAPATTU (Price Contral Inspector), Respondent