CANNON J.—Silva and Dasanaike.
1945Present: Cannon J.
SILVA, Appellant, and DASANAIKE, Respondent.
994—M. C. Negombo, 42,647.
Control of Prices (Miscellaneous Articles) Ordinance—Ordinance No. 39 of1939—Paragraph 5 ■of the orders made under section 3—Failure oftrader in thread to exhibit notice setting out maximum price—Duty ofprosecution to prove sale and not a mere exposure for sale.
Where a trader in thread is charged for failing to exhibit in a con-spicuous position a notice setting out the maximum controlled price,in breach of paragraph 5 of the orders made by the Controller of Prices-• (Miscellaneous Articles) under section 3 of Ordinance No. 39 of 1939,it is necessary for the prosecution to prove an actual sale, and not a mereexposure for sale, of the specified thread.
^ PPEAL from a conviction by the Magistrate of Negombo.
Mackenzie Pereira for the accused, appellant.
M. P. Spencer, C.C., for the Crown, respondent.
Cur. adv. vult.
January 17, 1945. Cannon J.—
The appellant was summoned for, that he, being a trader in thread,failed to exhibit in a conspicuous position a notice setting out the maximum,controlled price of Telephone Brand Thread, in breach of Condition V.of the^orders made under section 3 of Ordinance No. 39 of 1939 by theController of Prices (Miscellaneous Articles).
The evidence shows that there were 14 balls of such thread in the show-case in the appellant’s boutique, and that there was no maximum con-trolled price of the thread exhibited in the boutique. The Magistrateconvicted1 the appellant. He appeals on the ground that as no sale ofthe thread took place he was not guilty of any offence under paragraph V.which has been, I think, erroneously described as a " condition ” in thesummons. By paragraph V. the Controller directs in the followingwords—“ That any trader who at any premises sells any thread of thedescription and grade specified in the schedule hereto shall exhibit in aconspicuous position at those premises a notice in which there shall beset out the maximum price fixed by this order in respect of thatdescription and grade ”.
It is not disputed that the thread in question is of the description and.grade mentioned in the schedule; or that there was no sale; but it iscontended against the appellant that the exposure of goods for salebrought him within the terms of the order.
Only one authority has been cited to me, namely, Pakiampillai v.Merry l. In that case Wijeyewardene J. expressed the opinion thatit was not necessary for the purpose of a prosecution of this nature toprove a contract of sale * enforceable by action ’ within the meaning ofsection 4 of the Sale of Goods Ordinance. That case, however, is
. * 44 N. L. it. 142.
CANNON J.—Silva and Datanaike.
distinguishable from this. In that case there was a transaction of saleand in this there was no such transaction at ail. In that case the learnedjudge undoubtedly meant to say that where there has been what pur-ported to be a transaction of sale, then whether or not it might proveultimately to be a defective contract, this would not affect the vendor’sliability under the Ordinance in question. That case iB, therefore, not anauthority for the submission of the respondent. For the Crown ithas also been suggested that the words in paragraph 5, “ Any trader whosells any thread ” are words of description meaning any trader whosebusiness includes the selling of thread and do not mean that an actualsale is required. Reference to paras. 3, 4 and 6 of the Order shows how-ever, that the draughtsman was referring to the transaction of sale notto the description of the vendor. Para. 3 states that '* Any sale of anythread shall be deemed ”, &c. Para. 4 says that ” Every person whosells any thread ” shall give a receipt for the amount. Para. 6 directsthat " every trader who has sold thread ” in the 3 months prior to the dateof the order shall, &c.
As regards the argument that the word “ sells ” in para. 5 is meantto catch up an exposure for sale, one must look to the rules for theinterpretation of statutes. But, first of all, a reference to two importantEnglish statutes may be helpful. Their phraseology indicates that thelegislature was treating the word ” sells ” as a transaction quite distinctfrom exposure for sale. In the Food and Drugs Act, 1938, section 1 (ii.),reads as follows:—‘‘No person shall sell, or have in his possession forthe purpose of sale, any food or drugs, &e ”. In the Fertilizers andFeeding Stuffs Act, 1926, Section 7 (i), reads “ Any person who sells or•offers or exposes for sale for use as food, &c., or has in his possession,packed and prepared for sale for such use, &c.”. Maxwell on the Inter-pretation of Statutes, compendiously summarises the principles appli-cable to this case. In the 8th. Edition at page 231 appears the following—“ Where an enactment may entail penal consequences no violence mustbe done to its language to bring people within it, but rather care must betaken that no one is brought within it who is not within its expresslanguage. To determine that a case is within the intention of a statuteits language must authorise the Court to say so, but it is not admissibleto carry the principle that a case which is within the mischief of a statuteis within its provisions so far as to punish a crime not specified in thestatute because it is of equal atrocity or of a kindred character with those-which are enumerated ”.
I think the exposure of this thread for sale was within the mischiefaimed at by this order, but the order does not say so. For the abovereasons I am unable to read into the word ” Sells ” the words “ exposedfor sale ”. The appeal must be allowed and the conviction quashed.
SILVA, Appellant, and DASANAIKE, Respondent