Podimcnike v. Inspector of Police, Kiriclla
1967Present: Tennekoon, J.H. M. PODIMENIKE, Appellant, and INSPECTOR OFPOLICE, KIRIELLA, Respondent8. C. S07/67—M. O: Ratnapura, 26330
•Control of Prices Act—Price Order relating to maximum retail price of red ojiions—Sale in contravention thereof—Quantum of evidence as to question whetherarticle sold was red onions—Sale to a decoy in the course of a raid—Whetherit is a sale for “ consumption or use ”—Fixing of maximum price for RatnajmraDistrict at a few cents above the price fixed for Colombo—Validity.
In a prosecution for the salo of a pound of rod onions to a decoy at a prico inexcess of tho maximum rotail prico fixed by the relevant Price Ordor—
Held, (i) that tho failure of tho accused to cross-examine tho prosecutionwitnesses who referred to the article purchased and produced in Court as.“red onions” was sufficient to justify tho infcrcnco tliat tho articlo sold wasred onions, even though a letter written to tho Magistrate regarding tho qualityof tho onions by a person who called himself a Systematic Botanist wasinadmissible in evidence…
that whore a person who is a retailer of red onions sells a quantity lessthan one hundredweight, the sale is from the point of view of tho seller intendedfor “ consumption or use ” and it is irrelevant to enquiro what, if any, purposetho bnj'er had in view. In such a caso tho proper question to ask is not whatpurpose tho buyer had in view, but for what purposes the seller sold the onions.
■ Accordingly, a sale to a decoy in tho course of a “ raid ” is a salo for purposes ofconsumption or use.
that tlio fixing of maximum prico for Ratnapura at a figure increased by afew cents over the Colombo prico was not an unauthorised delegation or asurrender of his statutory powors by tho Assistant Controller of Prices of thoRatnapura District.
TENKEKOON, J.—Podimenike v. Inspector of Police,
Appeal from a judgment of the Magistrate’s Court, Ratnapur*.
W. Athulathmudali, for the accused-appellant.
Faisz Mu-sthapha, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
November 22, 1967. Texxekoox, J.—
The accused-appellant was convicted of the offences of selling a poundof red onions at a price in excess of the maximum retail price fixed bythe Price Order No. R/42/19G5 of S/6/65 read with Price Order No. 420of 8/1/67.
Counsel for the appellant made three submissions. The first was thatin order to prove that the article sold' was-red onions—the prosecution -produced a written opinion from a person who called himself a SystematicBotanist. In a letter addressed to the Magistrate he stated that he hadexamined the pound of onions that had been sold, that he found it wasonions of the variety commonly knoum as “Ired onions The SystematicBotanist was not called, and it needs no discussion to conclude that hisletter is completely inadmissible. . Counsel for the appellant submittedthat the accused should accordingly be acquitted. This does not follow,because the purchaser of the onions and other witnesses have clearlystated that what they purchased on this occasion was red onions. Thewitness Abeywardena who made the purchase stated in evidence that heasked the accused for a pound of red onions, and the accused sold to himthe pound of red onions which was later produced in Court. There wasno cross-examination of this or other witnesses who referred to thearticle purchased and produced in Court as “ red onions ”. I thinkthat in these circumstances there is ample evidence that the articlesold wa3 red onion3 even when the letter of the Systematic Botanist isrejected as being inadmissible evidence on that question.
The second point taken by Counsel for the appellant is that the onionswere not purchased by the decoy Abeywardena for consumption or use,but that it was purchased in the course of a “ raid ”. The Price Orderfixes the maximum price for sales wholesale, and for sales retail, and thefollowing definition is given to what is meant by the sale wholesale, andto a sale retail: —
" (a) any sale of any quantity of an article specified in column 1 ofthe Schedule for the purpose of resale or any sale of such articlein a quantity of one hundredweight gross or more at a time shallbe a sale by wholesale ;
(6) any sale of any quantity of an article specified in column 1 of theSchedule less than one hundredweight gross for the purpose ofconsumption or use shall be deemed to be a sale by retail; ”
TEN'XEKOOISr, J.-—Podimenike v. Inspector of Police.,
Tho charge in this case relates to a sale above the maximum retailprice. It is not suggested that a sale of red onions (of a lesser quantitythan 1 curt.) by the accused to any ordinary customer at her boutiquewould not be a sale by retail within the meaning of the Price Order.What is argued is that the purchaser in this case did not have any needfor the onions when he purchased them, nor had the organiser of the“raid” and that neither of them had in contemplation any use for theonions because the only purpose of making the purchase was to testwhether the accused was selling by retail above the price fixed by thePrice Order.
I am inclined to the view that in deciding whether a particular sale ofa quantity of red onions less than one hundredweight gross, was whole-sale or retail, the proper question to ask is not what purpose the buyerhad in view, but for what purposes the seller sold the onions. This mayappear to be somewhat illogical because the seller cannot control thepurposes of the buyer. The two tests prescribed arc " for purposes ofresale” and "for purposes of consumption or use”, both of whichappear to refer only to the purposes of the biyer in buying. It isnecessary however to remind oneself that the Price Order speaks of asale for one or other of those purposes and not of a -purchase for thosepurposes. The definitions given to the terms “ sale by wholesale ” and“ sale by retail ” are not intended to introduce a new term or conditioninto day to day sale and purchase transactions indulged in by the publicat large. It is a well-known fact of the political economy of this countrythat there are dealers who hold themselves out as wholesale dealers andothers who hold themselves out as retail dealers. These dealers sell at"wholesale” rates or at "retail” rates irrespective of the purposes of theparticular buyer. The wholesaler sells ordinarily for the purposes ofresale : the retailer ordinarily for the purpose of consumption or use.Neither pauses to enquire of each particular buyer what his particularpurpose is. Nor is there any tiling in the Price Order which requires himto do so. It seems to me therefore that where a person is a retailer of redonions and sells a quantity of red onions less than one hundredweight,the sale is from the point of view of the seller intended for "consumptionor use” and it is irrelevant to enquire what, ifany, purpose the buyer hadin view. I am therefore of opinion that in the instant case the sale ofthe pound of onions by the accused at the "boutique” of her husbandDingirimahatmaya was intended for purposes of consumption or useand was accordingly a sale by retail.
It is a source of satisfaction to learn that my brother G. P. A. Silva, J.has in an u'nreported case (which is not available to me at tho time ofwriting this judgment) come to the same conclusion on similar facts.
The 3rd submission which Counsel for the appellant submitted was asfollows :—The Price Order No. R/42/G5 of S/G/G5 made by the AssistantController of Prices (Food), Ratnapura District, and published in the
TEXXEKOON, J.—Podimenike v. Inspector oj Police, '
Ceylon Government Gazette Extraordinary No. 14,422 of 12/6/G5 fixesthe price of red onions for the Ratnapura District in this way—
“ BY virtue of powers vested in me by section 4 of the Control ofPrices Act (Chapter 173), read with section 3 (2) of that Act, I, JohnVincent Gnanapragasam, Assistant Controller of Prices (Food),Ratnapura District, do by this Order—
(3) fix with immediate effect the price for the time being fixedunder the Control of Prices Act (Chapter 173), as the retailDealer’s maximum retail price for the Colombo Municipality,increased by amounts specified in column 3 of the Schedulehereto, to be the maximum retail price per pound nett abovewhich the articles specified in the corresponding entry incolumn l_of that Schedule shall not be sold within the areaor the administrative district specified in column' 2,' of thatSchedule ’ *
It is submitted by Counsel that this is an unreasonable and impropermanner of fixing prices for the Ratnapura District, and secondlythat it is in substance a delegation of his powers by the AssistantController of Prices, Ratnapura District to the officer who makes PriceOrders for the Colombo District. I cannot see how it can be suggestedthat the fixing of a price for the Ratnapura District at few cents abovethe price fixed for Colombo is an unreasonable exercise of the power offixing the maximum prices for Ratnapura District. Obviously thismanner of fixing the price proceeds on the basis that the market price ofred onions in Ratnapura is usually a few cents higher than in Colombofor reasons which are easy to envisage and of the adequacy of which theperson given the power to fix prices is the best judge. I accordinglyreject this contention. In regard to the further submission that FoodPrice Order No. R/42/1065 amounts to a surrender of the power offixing prices for Ratnapura to the officer who fixes prices for ColomboDistrict, it is only necessary to refer to the fact that under section 4 ofthe Control of Prices Act, a Price Order is capable of being revoked atany time by the officer who makes it or by the Controller. If the pricesfixed for Colombo are such that the prices in Ratnapura need to berevised, the officer who has power to make Food Prices Orders forRatnapura has only to make and sign a fresh order for Ratnapuraimmediately. I do not accordingly think that there is any substance inthe submission that by fixing for Ratnapura District maximum pricesat a figure increased by a few cents over the Colombo price is anunauthorised delegation or a surrender of his statutory powers by theAssistant Controller of Prices of the Ratnapura District.
The appeal accordingly fails, and is dismissed. The convictions andsentences passed on the accused are affirmed.
H. M. PODIMENIKE, Appellant, and INSPECTOR OF POLICE, KIRIELLA, Respondent