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Present: Schneider J.
NAIR v. MATHEW FERNANDO et al.
458—P. 0. Hatton, 647.
Food—Sale in a state unfit for human consumption—Guilty knowledge—Penal Code, s. 266.
A person cannot be convicted under section 266 of the PenalCode with having sold food in a state unfit for human consumption,except upon proof that he knew or had reason to believe that thefood was unsound.
nnHE accused were charged and convicted with having soldhalf a pound of beef suet in a state unfit for food undersection 266 of the Penal Code. The first accused, who was theemployer of the second accused, was fined Rs. 30, the second beingdischarged with a warning. The evidence was to the effect thatthe suet was sold to a customer by,the second accused whowas the salesman and who had got the suet from one Mohideena few days previously. The first accused appealed from theconviction, on the ground that he was not affected with knowledgethat the suet sold was unsound.
H. «/. <7. Pereira, K.C. (with him H. V. Per era), for accused,appellant.
September 1, 1924. Schneider J.—
In this case two persons were charged and convicted with havingsold “ as food half a pound of beef suet in a state unfit for food,knowing or having reason to believe that it was noxious as food,”and convicted under section 266 of the Penal Code. The firstaccused was fined Rs. 30, but the second accused was dischargedwith a warning. It seems to me that the learned Magistrate wasnot acting within the law in discharging the second accused whomhe had found guilty of an offence. He should have imposed somesentence' on him. But his case is not before me on this appeal.This appeal is by the first accused who admits that he is the employerof the second accused. The evidence is that the suet was sold toa customer from a dealer’s shop. The second accused was thesalesman who actually sold and delivered the suet to the customer.The second accused stated in his evidence that he got the suetfrom one Mohideen on the 13th and supplied it to the gentlemanon the 17th of June. The evidence clearly proves that the suetwas unfit for human consumption, as it was in an advanced state of
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decomposition with maggots on it. The learned Magistrate appears 1924.to have thought that he was justified in convicting the first accused Sohnbidebmerely because he was the master of the second accused upon the J.authority of Ibrahim v. Jamaldeen Hat.1 I think he has misunder-^air v
stood that case. In that case a butcher was charged under section Mathew266 of the Penal Code for exposing for sale beef unfit for food. Fernana°Two defences were offered to 'this charge: (1) that the beef wassold not by the appellant, but by his servant; and (2) that theappellant did not know, and had no reason to believe, that themeat was unsound. Following the principle of the decision inCoppen v. Moore? Lascelles A.C.J. held that the first defencewas unsustainable, because the master must be regarded as theseller, although not the actual salesman. As regards the seconddefence, he held that there was no evidence showing that theappellant knew, or had reason to believe, that the meat was unsound.
He therefore quashed the conviction. It would appear, therefore,that the very case cited by the Magistrate is in favour of theappellant’s contention that he cannot be convicted under section 266of the Penal Code unless there is proof that he knew, or had reasonto believe, that this suet was unsound. The evidence in thiscase altogether fails to prove any such knowledge, or any groundfor such belief on the part of the appellant. On the contrarythe evidence of the second accused proves that the first accused,appellant, had nothing to do with the selling of the suet.
I would, therefore, set aside the conviction and acquit the accused.
i(1906) 9 N. L. B. 335.
*(1898) 2 Q. B. 306.
NAIR v. MATHEW FERNANDO et al