WIJEYEWARDENE J.—Mohamed and Nuwara EUya Police.
1943Present: Wijeyewardene J.MOHAMED, Appellant, and NUWARA ELIYAPOLICE, Respondent.
188-189—M. C. Nuwara Eliya, 6,102.
Control of Prices Regulation 6—Charge of refusal to sell beef—reservedfor regular customers—Valid defence—Control of Prices Ordinance, s. 4 (3).Where the first accused who was a salesman and the second accused,the manager of a firm which ran a meat stall, were charged with refusing tosell beef in contravention of the Control of Prices regulation 6 and wherethe defence of the accused was that the beef found in. the stall wasrequired to be supplied to registered customers,—■
Held, that the plea was a valid defence to the charge.
Held, further, that the second accused was not liable in the absenceof proof that the employer of the first accused was out of the Island.
^ PPEAL from a conviction of the Magistrate of Nuwara Eliya.
E. F. N. Gratiaen for accused, appellant.
G. El Chitty, C.C., for Crown, respondent.
Cur. adv. vult.
April 16, 1943. Wijeyewardene J.—
The first accused is a salesman and the second accused, the Manager,of the firm Of. Abram Saibo & Co., who run a meat stall at Nuwara Eliya.On October 15, 1952, one Mr. M. P. Gunawardene, a District Inspectorof the Telegraph Department went to the meat stall and asked for 7pounds of beef. He made a tender of Rs. 2.45 which was the value ofthe beef at the maximum retail price ruling on that day. Though therewas . a large quantity of beef in the stall, the first accused said in Tamil“No beef, cannot give”. Mr. Gunawardene complained to the Policeand the Police constable who went to the stall immediately afterwardsfound there 977 pounds of beef. The first accused told the constablewhen he was weighing the beef that all that quantity of beef had beenset apart to meet “ the orders of regular customers which had to beexecuted”. The constable was shown the lists of customers whoseorders, amounted to 886J lb. for October 15 and 319 pounds for October16. The constable has stated in his evidence that he “verified andfound the orders to be correct ”. The evidence led in the case Showsthat, in the absence of very special circumstances, cattle were slaughteredin Nuwara Eliya only on Mondays and Thursdays and that thereforeAbram Saibo & Co. had to reserve a part of the beef received on October15, to meet the orders for October 16 which was a Friday. It may beadded that' Mr. Gunawardene who has had considerable trouble inobtaining his supply of beef in October and November got himselfregistered as a regular customer of Abram Saibo & Co. towards the endof November and has experienced no difficulty. after that in getting big“ regular orders ” executed.
WUEYEWARDENE J.—Mohamed and Nuwara Eliya Police. 261
On the above facts the accused were charged with having refused tosell 7 pounds of beef to Mr. Gunawardene on October 15, 1942, andthereby committed an offence in contravention of section 6 of the Controlof Prices Regulations made by the Minister for Labour, Ihdustry andCommerce under section 4 (3) of the Control of Prices Ordinance andpublished in the Government Gazette No. 8,501 of September 11, 1939.
The accused pleaded that there was no beef available for sale to Mr.Gunawardene as the beef then found in the stall had to be supplied tocertain registered customers. There is no doubt ais to the truth of thefacts on which that defence is based. So far as the first accused isconcerned the only question I have to decide is whether this plea affords avalid legal defence to the charge against him.
Sub-section 1 of Regulation 6 mentioned in the charge read withsection 5 of the Control of Prices Ordinance makes it an offence for atrader to refuse or fail to supply an article the maximum price of whichhas been fixed, to a person who makes a demand for it and tenderspayment at such maximum price. But the Regulation proceeds to/state in sub-section 2 that in a prosecution for such an offence “ it shallbe a sufficient defence to prove that on the occasion in question theaccused …. had not a sufficient quantity in his custody orunder his control to supply the quantity demanded ”. As the beeffound in the stall had to be supplied on the orders received by AbramSaibo & Co. before Mr. Gunawardene made his demand, I do not thinkit could be said that Abram Saibo & Co. had on that day and beef intheir custody or under their control for executing the order for 7 lb. Ihold that the words “custody” and “control” are used to signify sucha possession of an article as will enable the person in custody or controlto dispose of it without infringing the rights of third parties or committinga breach of contract. The conviction of the accused cannot therefore besustained.
I may add that in any event the conviction of the second accusedcanhpt stand as there is no evidence to show that the employer of thefirst accused was out of the Island at the time of the alleged offence.Regulation 8 of the Defence (Control of Prices) (Supplementary Provi-sions) Regulations to which my attention was drawn by Mr. Chitty setsout the position clearly as follows : —' .
“ Where any person, who be employed by any other person (herein-after referred to as “ the employer ”) to sell articles in the course of ,any business carried, on by the employer at ahy premises, is, by reasonof anything done or omitted to be done at those premises convictedof the offence of contravening any provision of any order, then, .theemployer or when the employer is out of the Island, the person for thetime being acting as Manager or having control of the business shallalso be guilty of that offence, unless he proves I
I allow the appeal and acquit the accused.
MOHAMED , Appellant, and NUWARA ELIYA POLICE, Respondent