KEXJNEMAN -J.—Dissanayaka v. Jothidasa.
1942Present: Keuneman J.
DISSANAYAKA v. JOTHIDASA.
702—M. C. Kurunegala, 7,168.
Defence (Miscellaneous) Regulations 43 (d), paragraphs 9 and 10—Wholesaledealer in sugar—Authority to sell by retail—Sale of bags to boutique-keeper—What amounts to sale by retail.
Sale of three bags of sugar by a wholesale dealer to the owner of atea boutique is not a sale by retail which is permitted to such wholesaledealer in terms of paragraph 10 of Regulation 43 (d) of the Defence(Miscellaneous) Regulations.
^^PPEAL from a conviction by the Magistrate of Kurunegala.
L. A. Rajapakse (with him Ananda Pereira), for accused, appellant.
A. C. Alles, C.C., for complainant._
Cur. adv. vult.'
November. 25, 1942. Keuneman J.—
The accused was charged for a breach of paragraph 9 of the Ordermade by the Governor under Regulation 43 (d) of the Defence (Miscel-laneous) Regulations and published in the Gazette Extraordinary No. 8,961of July 3, 1942.
Paragraph 9 runs as follows: —
“Save as otherwise provided in paragraph 10, no wholesale dealercarrying on business outside Colombo shall sell or supply any sugarto any person unless that person produces to him for inspection at the
KEUNEMAN J.—Dissanayaka v. Jothtdasa.
time of such sale or supply a certificate under the hand of the Govern-ment Agent to the effect that such person is a registered retail trader.”Paragraph 10 is as follows: —
“Nothing in …. paragraph 9 shall be deemed to prohibitor restrict the sale of sugar by retail at any shop or premises by anywholesale dealer, if that wholesale dealer has been authorised bywriting under paragraph 4 (6) to sell sugar by retail at such shop orpremises:
Provided that the total quantity' of sugar which may be sold bvretail at such shop or premises during any period shall not exceed thequantity specified in such writing to be the maximum quantity whichmay be sold by retail at such shop or premises during that period.”
The accused, who is a dealer in sugar outside Colombo, is charged withthe sale of 3 bags of sugar to Abdul’ Samad, who did not at the time of thesale produce a certificate of the Government Agent to show that he is aregistered retail trader. In fact, Abdul Samad had no such certificate.
The accused, in his defence, urged that the sale was one permitted byparagraph 10, in view of the fact that while he is a registered wholesaledealer, he had also been authorised by writing to sell sugar by retail.He contends that the sale-in question was a “sale by retail”.
The evidence of the Price Control Inspector establishes that the accusedwas a wholesale dealer, and had also been given authority to sell sugar byretail. On July 21, 1942, the accused was authorised to sell 10 bags ofsugar by retail within a fortnight.
On July 25, Abdul Samadcameto theaccused’sboutique with
Ismail and Ibrahim. Each of the three menpurportedto purchase a
bag of sugar at ‘the rate of Rs. 34.50 a bag, but in point of fact all threebags were purchased by Abdul Samad, who had a tea boutique andneeded the sugar for preparing tea there. Ismail and Ibrahim weremerely nominal purchasers, and Abdul Samad paid for all three bags.Ismail and Ibrahim are dealersin dryfish, and did not deal in sugar or
want the sugar. They weretakento theaccused’sshop because,
according to Abdul Samad, “ the accused wanted three persons to buythree bags ”. – I think it must be taken that the accused sold 3 bags ofsugar to Abdul Samad, and resorted to a subterfuge to. make it appearthat he was selling one bag each to three persons.
The question, however, remains as to whether this can be regarded as a“ sale by retail ”. No doubt the accused showed in his return that hehad sold the three bags in question out of his retail stock (he had authorityto sell ten bags by retail in the fortnight). But this return was madeafter the seizure of the three bags of sugar, which took place as‘ the bagswere being removed from the shop to the bus. –
The Order does not define what is meant by “ a sale by retail ”. Theterm “ retail trader ” and “ wholesale dealer ” are defined but thesedefinitions do not help us to solve the problem. In the New OxfordDictionary the word “retail” is said to mean the sale of commodities insmall quantities, while, “ wholesale ” connotes sale in large quantities, ingross, as opposed, to retail. I have also been referred by Crown Counsel
KEUNEMAN J.—Dissanayaka v. Jothidasa.
to the case of Treacher & Co., Ltd., v. Treacher In that case defendantwas under covenant not to carry on, or be engaged or concerned orinterested in the business of chemists, druggists and soda water manu-facturers and general merchants, “so far as the same may be consideredretail He and his partner could not sell sample bottles without“ breaking bulk ”, that is to say without opening a case and taking out abottle and it appeared th&re was no limit to the sale of these single bottles.
. . . . As a general rule ‘ wholesale ’ merchants dealt only withpersons who bought to sell again, whilst ‘retail’ merchants dealt withconsumers. In this sense of the word, as well as from the fact thatdefendant and his partners were ready to sell any number of singlebottles, the defendant has been guilty of a breach of the covenant ” (perBacon, Vice Chancellor). In Philips v. Pamaby', the dictum ofBacon V. C., with regard to the difference between wholesale merchantsand retail merchants, is emphasised.
Mr. Rajapakse referred me to BelVs South African Legal Dictionary(2nd edition) p. 486.“ Retail, in small quantities. To sell by retail is to
sell in small quantities As regards quantity, there is a reference to thecase of Bowles v. Stott', where Bristowe J. said “ Now * quantity ’ is arelative term. What would be a large quantity for a bachelor, keepingup a bachelor establishment, is a small quantity for a man with a largenumber of children and dependants. So that quantity taken by itself,is not a conclusive criterion. There may be cases in which mere consider-ations of quantity would govern the decision, but it is not in itselfdecisive. It must be looked at in conjunction with all the othercircumstances of the case.”
But he added later : “ It seems to me that if goods are bought for thepurposes of a business, that is with a view of making a profit out of them,the presumption, at all events, is that they are bought wholesale and notretail; for, persons who buy for their business usually buy wholesale, andthe profits of the business frequently depends upon the difference betweenthe wholesale and the retail prices. ”
(I am quoting from BelVs Legal Dictionary as the case is not availableto me.)
No doubt, it is correct that Abdul Samad cannot be regarded as a retailtrader in sugar. I think the Magistrate was in error in holding him to besuch retail trader. The only evidence on the point is that of AbdulSamad himself, who said, “I bought this sugar for my tea boutique atPuttalam ” and “ The sugar was for making tea only.” There is noevidence that, Abdul Samad was a seller of sugar as such. See in thisconnection the case of Moore v. Pearce’s Dining and Refreshment Rooms,Ltd. ’. But it is clear that Abdul Samad was purchasing the sugar notfor the consumption of himself and his family or household, but for thepurposes of his business as the owner of a tea boutique. This is a cir-cumstance which is of importance. There is also the fact that theaccused did not “ break bulk ”, but sold by the bag. He made nodistinction between the owner of a tea boutique and a dealer in dry fish,who did not need any sugar. In fact, he did not, in this case genuinely
* (1894) W. N. 4.5 (1909) T. S. 412.
s L. R. (1934) 2 K. B. D. 299.4 L. R. (1S95) 2 Q.B.D. SS7.
SOERTSZ J.—The King V. Piyasena.
adopt his own standard of one bag per person, but under the pretence ofselling to three persons sold the three bags in reality to one person. Nodoubt the actual quantity sold is. in itself inconclusive, but the quantitysold is substantial, a little less than one-third of the entire stock he coulddispose of by retail in a fortnight, and the quantity does not indicatethat the transaction was a retail sale.
It would no doubt have been more satisfactory if the Order hadprovided a certain maximum quantity as constituting a sale by retail.But in the absence of any such definition, I have to consider all thecircumstances of the case, and after such consideration I am of opinionthat the transaction in question cannot be regarded as a sale by retail.The appeal must accordingly be dismissed, and the conviction andsentence affirmed.
DISSANAYAKA v. JOTHIDASA