Jailabdeen and Menem.
1943Present: Jayetileke J.
JAILABDEEN, Applicant, and MENON, Respondent.
M.C. Matale, 10,424.
Master and servant—Master's liability for acts of Servant—ExplosivesOrdinance (Cap. 140) s. 23 (2).
Where a, licensee to sell explosives by retail is charged under section23 (2) of the Explosives Ordinance he is liable for the acts of his servant,who exposed explosives for sale in contravention of its provisions.
HIS was an application to revise-a conviction by the Magistrate ofMatale.
H. W. Thambiah, for accused-appellant, petitioner.
N.Nadarasa, C.C., for Crown, respondent.
JAYETILEKE J.—Jailabdeen and Menon.
February 18, 1943. Jayetileke J.—
This is a prosecution under the Explosives Ordinance (Cap. 140).The accused had a licence to sell explosives by retail at premises No. 65,Main street, Matale. He was convicted under section 23(2) of havingexposed for sale 2 pounds 14 ounces of gunpowder and 17 pounds 11ounces of fuses contrary to the provisions of section 23(2) of the Ordi-nance and sentenced to pay a fine of Rs. 20.
The inspector found the gunpowder on a counter and the fuses on ashelf'in the shop when he entered it on August 23, 1942. The accusedwas not present on the premises at the time.
Mr. Thambiah contended that the accused cannot be made criminallyresponsible for the acts of his salesman.
The principle of law which governs this question is thus laid down byChannell J. in Pearks, Gunston and Tee, Ltd. v. Ward1 at page 11
“ By the general principles of the criminal law, if a matter is made acriminal oifence, it is essential that there should be something in thenature of mens rea, and, therefore, in ordinary cases a corporationcannot be guilty of a criminal offence, nor can a master be liablecriminally for an offence committed by his servant. But there areexceptions to this rule in the case of quasi-criminal offences, as theymay be termed, that is to say, where certain acts are forbidden by lawunder a penalty, possibly even under a personal penalty, such asimprisonment, at any rate in default of payment of a fine . . . .”
This judgment was cited with approval in Mousell Bros.,. Limited v.London and North Western Railway Co.1. In the course of his judgmentLord Reading C.J. said at page 843 : —" It follows that where the actforbidden is one of the character described by Channell J. the principalis liable for the doing of the forbidden act by the servant.”
The Explosives Ordinance was enacted “ for the prevention of accidentsby explosives ”. Section 25 clearly lays down that it shall not be lawfulfor any person to sell explosives unless he shall have previously obtaineda licence from the Government Agent of the District in which he proposesto sell such explosives. The Government Agent is given the power torefuse to issue a licence if the applicant has not provided registeredpremises for the keeping of explosives. Section 20 provides for theregistration of pre'mises for the keeping of explosives for purposes of.retail sale. Section 21 makes it an offence for a person to hawk, sell orexpose for sale explosives upon any highway, street, public thoroughfareor public place.
The combined effect of section 20, 21 and 25 would be to prohibit thesale of explosives at any place other than the premises registered forkeeping the explosives. The material part of the section under whichthe accused was charged is as follows : —'
23.(1) The amount of explosives exposed for sale shall not exceed
If any explosive is exposed for sale in contravention of. thissection, the person exposing it for sale shall be liable to apenalty not exceeding twenty rupees, and all or any part ofthe explosive so exposed may be forfeited.
(1902) 2 K. B, D.p.l.
* (1917) 2 K. B. D. p. 836.
JAYETILEKE J.—Jailabdeen and Menon.
The penalty is imposed on the “ person who exposes ” the explosive forsale. Having regard to the fact that the only perosn who is entitledto sell explosives is a licensee the conclusion is irresistible that the dutyimposed by section 23 (1) is upon him.
The only question then is whether he can be made liable under section23 (2) for the acts of others.
In Commissioners of Police v. Cartmanx, the licensee of a public housewas convicted under section 13 of the Licensing Act with having soldintoxicating liquor to a drunken person. The material words of thesection are : —“ If any licensed person permits drunkenness or anyviolent, quarrelsome, or riotous conduct to take place on his premises, orsells any intoxicating liquor to any drunken person .. ..” The
liquor was in fact sold by a servant in the absence of the accused andcontrary to his orders. Lord Russell C.J. in the course of his judgmentsaid :—.•
" It must be remembered that the persons from whom aloneintoxicating liquors can be obtained are licensed persons: how dothey carry on their business ?' From the nature of the case it must belargely carried on by others on their behalf ; it is true that sometimesthe licensee keeps in his own hands the direct control over his ownbusiness, but in the great majority of cases it is not so, the actualdirect control being deputed to other persons : are the licensees inthese latter cases to be liable under this section for the acts of others ?In my opinion they are, subject to this qualification, that the actsof the servant must be within the scope of his employment. Thescope of the manager’s authority in my view receives its limitationfrom the scope of his employment: authority is 'given to him to doall acts within the scope of his employment. It makes no difference; for the purposes of this section that the licensee has given privateorders to his manager not to sell to drunken persons : were it otherwise,the object of- the section would be entirely defeated. We may takeas an illustration the case of ra sporting publican who attends race-meetings all over the country, and leaves a manager in charge of hispublic-house, is it to be said that there is no remedy under this sectionif drink is sold by the Manager in charge to any number of drunkenpersons?”
In Collman v. Mills", the licensed occupier of a slaughter-house wasconvicted under a by-law under the Slaughter-houses (Metropolis)Act of 1874j with having slaughtered certain sheep in the pound attachedto the slaughter-house in the view of other sheep.
The material part of the by-law is as follows : —
“ An occupier (a) shall' not slaughter …. any animal inany pound …. other than the slaughter-house, (b) shallnot slaughter . . . . any animal within public view or withinthe view of any other animal.”
He was not present on the premises at the time and had, forbiddenhis servants to do the acts complained of. It was held that he wasliable for the act of his servant, the act having been committed withinthe general scope of his employment.
1 (1896) 1 Q.B.D. p. 655.’ (1897) 1 Q.B.D. p. 396.
KEUNEMAN J.—Dias and Jane Nona.
’ The nature of the accused’s business is such that he cannot reasonablybe expected to be on the premises at all hours and that he has to employservants to conduct it. The acts in respect of which the accused hasbeen charged are such as would ordinarily be performed by a servantin the course of his duties. The language of section 23 (2) suggeststhat the Legislature intended to make the licensee responsible if hisservants exposed explosives for sale in contravention of its provisions.
The construction contended for by Mr. Thambiah will defeat theobject of the Ordinance. The accused has, in any opinion, been rightlyconvicted.
The appeal is dismissed.
JAILABDEEN, Applicant, and v. MENON, Respondent