WIJ KYEWARDENE J.—Pakiampillai v. Merry.
1942Present: Wijeyewardene J.
797—M. C. Colombo, 48,633.
Control of prices—Sale of Maidive fish above controlled price—Contract of sale—Control of Prices Ordinance, No. 39 of 1939, s. 3.
Where an accused person is charged with having sold Maidive fishat a price above the maximum price fixed by the Controller of Prices,the prosecution is not bound to prove a contract of sale enforceableby action within the meaning of section 4 of the Sale of GoodsOrdinance.
^^PPEAL from a conviction by the Magistrate of Colombo.
N.Nadarajah, K.C. (with him H. W. Thambiah), for the accused,appellant.
G. E. Chitty, C.C., for the Crown, respondent.
November 10, 1942. Wijeyewardene J.—
The accused-appellant was convicted on a charge of having sold Maidivefish (mixed Kundira and Male) on August 31, 1942, at a price abovethe maximum price fixed by the Controller of Prices, and sentenced tosix months’ rigorous imprisonment.
Acting under the powers vested in him by section 3 of the Control ofPrices Ordinance, No. 39 of 1939, the Controller of Prices made andsigned an order on July 31, 1942, fixing Rs. 57.50 as the maximum“wholesale” price of this particular kind of Maidive fish. The word“ wholesale ” as used in "the Order is so defined in the Order itself as tomake a sale of any quantity of Maidive fish for the purpose of resalea sale by wholesale. That Order is published in the Government GazetteNo. 8,979 of July 31, 1942, and the prosecution produced at the triala copy of that Gazette.
The learned Magistrate has recorded his findings of fact after a verycareful analysis of the evidence and I accept those findings though,no doubt, there are certain passages in the evidence as pointed out by theCounsel for the appellant which appear to be in conflict with the evidenceaccepted by the Magistrate. I may add also that no evidence was givenon behalf of the accused.
The facts as found by the Magistrate may be summarized as follows : —On August 31 a trader called Herat reported to the Assistant Super-tendent of Police, Colombo, that he found it difficult to buy Maidive fish.The Assistant Superintendent gave Herat a list of boutiques dealing inMaidive fish and sent him with Police Constable Rasiah in plain clothes.Herat returned shortly afterwards and informed the Assistant Superin-tendent of Police that he bought at one of the boutiques a bag of 1 cwt.and 20 lb. for Rs. 92.50. Then the Assistant Superintendent noteddown the numbers of 50 two-rupee notes belonging to Herat and handed
WIJEYEWARDENE J.—Pakiampillai v. Merry.
back to him 47 of them in one bundle and the remaining three notesseparately and asked him to return to the same boutique and buy anotherbag. A bundle of 47 notes was made separately as it was' thought thatthe second bag would contain the same quantity as the first bag andwould cost only Rs. 92.50. Herat went this time with Police ConstableWijeyesinghe in plain clothes while Police Constable Rasiah was sent toreport to the Assistant Superintendent when the transaction was com-pleted. Herat went to the boutique and waited until the door wasopened. Herat was then admitted by the accused. Wijesinghe wentin, a few minutes later, and said he wanted to buy onions. Wijesinghewas asked to go out and wait outside the boutique as it was said “ onlyone person at a time could be served inside ”. Herat opened the bag,examined some pieces of Maidive fish in it and was satisfied with thequality. The accused thereupon got the bag restitched and weighed andfound it to contain 1 cwt: and 25 lb. He then kept the bag apart andbegan to calculate on a piece of paper P 3 the price of the Maidive fishat Rs. 78 per cwt. and got the result as Rs. 95.65. He gave the paperP 3 to Herat, showing the price that had to be paid and Herat then heldout to the accused the bundle of notes amounting to Rs. 94 before payingthe balance Re. 1.65 out of the notes which he kept separately. Just asthe accused stretched out his hand and held the' bundle Wijesingheand the Assistant Superintendent who had been summoned by Rasiahentered the boutique after ordering one of the men at the, door to openthe door without giving a warhing to those inside. On seeing the Policeentering the boutique the accused pulled the paper P 3 out of the handsof Herat and tore it up. He also released his hold on the bundle of noteswhich then dropped on the ground. Herat picked up the notes and theAssistant Superintendent collected the torn bits of P 3. •
The accused is charged with regard to the second transaction. Thevalue of 1 cwt. and 25 lb. contained in the bag would be a little less thanRs. 71 as the sale to Herat would be a sale by wholesale, according to theOrder. Herat has, therefore, been charged nearly Rs. 25 over-the con-trolled value.
It was argued in appeal that there was no salex of the Maidive fish toHerat according to law as only" a bundle was held .put to the accusedin payment of the prices and the accused had no opportunity of ascertain-ing whether the bundle contained currency notes. It was also arguedthat even according to the evidence of Herat the money actually tenderedwas only Rs. 94 while the value of the goods was Rs. 95.65. It shouldbe noted in this connection that Herat intended to tender the balanceRe. 1.65 after giving the notes When the Police arrived. This con-tention is urged on the footing that the sale to be considered in this caseshould be a sale, governed by the Sale of Goods Ordinance. Even on-that assumption I am of opinion that there has been a sale. A contractof sale is defined in section 2 of that Ordinance as a contract wherebythe seller transfers the property in- goods to the buyer for a moneyconsideration. Under section 18 (3) where there is a contract for thesale of specific goods in a deliverable state and the seller has weighed thegoods for the purpose of ascertaining the price and the buyer-had noticeof it the property would pass .to the buyer in the absence of any special•44/14
WIJEYEWARDENE J.—Pakiampillai v. Merry.
circumstances. Of course the right to property in goods must bedistinguished from the right to their present possession. Where thereis a sale of specific goods for cash the property passes by the contractbut the seller may (unless otherwise agreed) retain the goods till the priceis paid. Here Herat tested the goods in the bag. The bag was stitchedand then weighed and kept apart in Herat’s presence. The value wasthen worked out and shown to Herat. On these facts alone there wouldbe a contract of sale within the meaning of the Ordinance. These factsalong with the tender of Rs. 94 preparatory to the handing over of thebalance Re. 1-65 would even make it a contract of sale “ enforceableby an action” -within the meaning of section 4 of the Ordinance. Ido not think that it is necessary for the purpose of a prosecution of thisnature to prove a contract of sale “ enforceable by action ” within themeaning of section 4 of the Sale of Goods Ordinance. (Vide The King v.Totonbrow1 Miles i>. Melias, Ltd., referred to in Bell’s “ Sale of Food andDrugs” (9th edition), p. 99.)
The Counsel for the appellant has also pleaded for reduction of thesentence. The sentence passed in this case is undoubtedly a severe one.The learned Magistrate has, however, addressed his mind very carefullyto this question before he sentenced the accused to six months’ rigorousimprisonment.. The evidence discloses as pointed out by the Magistratea bold and systematic evasion of the/law. It cannot be said that theMagistrate has exercised his discretion on .a wrong principle or that thereare any circumstances in this case which make it desirable for this Courtto interfere with the sentence.
I dismiss the appeal.
1 English Reports 109 King's Bench 860-
PAKIAMPILLAI , Appellant, and MERRY , Respondent