DE KRETSER, J.—Munasinghe v. Pieri.
1969Present: da Kretser, J.
V. MTTNASINGHE, Appellant, and M. J. PIERIS (Food and DrugsInspector), Respondent
S.G. 1187168—M. C. Colombo South, 94037/A
Control of Prices Act (Cap. 173), as amended by Act No. 44 of 1957—Charge of sellingarticle abase Control price—Plea of accident—Maintainability—Penal Code,83. 72, 73.
In a prosecution for a contravention of the Control of Prices Act, tho factthat it is a statutory offence does not preclude the accused from pleading thoexception of accident contemplated in section 73 of tho Penal Code. In such* a caso tho Control of Prices (Amendment) Act, No. 44 of 1957, which takesaway tho right of the accused to plead tho exception of mistake of fact (section72 of tho Penal Code) has no application.
Tho accused-appellant, a salesman, sold an article for Rs. 59S when itsControl Price was Rs. 5'S9. . His explanation was that when he w-roto out thebill he inadvertently transposed the figure 9 for tho figure 8, so that tho pricewhich ho meant to convey, immediately aftor ascertaining it from the Gazette,viz. Rs. 5'89 became Rs. 5'9S.
Held, that tho transposition of figures was an accident within the meaningof section 73 of the Penal Code.
Appeal from a judgment of tho Magistrate's Court, Colombo South.
S.Nadesan, Q.G., with H. D. Tambiah, for tho accused-appellant.
T.Wickramasingke, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
October 8, 1969. de Kjretser, J.—
In this caso tho Magistrate of Colombo South (Mr. Colin Mendis)convicted the accused, a salesman in tho employ of the StarlinePharmacy, Bambalapitiya, of the chargo laid against him that he hadsold tho drug known as Brovon Liquid Inhalant, which I shall hereafterrefer to as Brovon, for Rs. 5£>S when its Control Price was Rs. 5 S9.Tho accused has appealed.
It is common ground that the accused, on 8.3.6S, sold' to thecomplainant Silva, who described himself as a Doctor in tho witness box,but whom Counsel at the appeal was at pains to show was a retiredapothecary, a fact unknown to Counsel at tho trial, a bottlo of Brovon.for Rs. 5'98.
Tho complainant and tho accused, who alone spoke to the circum-stances under which tho sale took place gavo versions differing in detail.Tho Magistrate, who has mado no attempt to analyse tho evidence hasaccepted the version of tho complainant for tho reason that he gave hisevidonce “ in a manner that satisfied mo beyond any reasonable doubt of
DE KRETSER, J.—Munasinghe v. Picris543
tho truth of tho matters ” to which he testified in the witness box. Hosays nothing as to how tho accused gave evidence. Demeanour isnotoriously a dangerous guide to go by, but the Magistrate goes further,for he has theraftor used tho truth of tho complainant’s evidence as theyardstick for testing the truth of tho defence. For example ho says,“ If by an accidental slip of the pen tho figures 8 and 9 wore transposedin tho cash memo, tho accused could hare immediately rectifiod it whentho doctor brought it to his notice. ” Tho accused’s evidence is that thodqctor never brought it to his notice. No reason is given why theaccused’s evidence is not tho truth on tho point.
I do not think it safe in tho circumstances to accept as correct thefindings of fact by the Magistrate.
The defence in this caso is based on tho exception of accident ormisfortune—Section 73 of tho Penal Code.
That is one of tho exceptions still left for the accused to jdead whencharged with an offenco of this nature, for shortly after tho fivo judges’decision Perera v.reported in 56 N.L.R. at page 433 which
held that tho exception of mistake of fact, Section 72 of tho Code, couldbetaken by a person charged with a statutory offence, legislation—Act 44of 1957—was passed taking away tho right of an accused charged with anoffence under the Price Control Act to plead that exception.
Tho five judges have said as follows
“ Where the definition of an offence contains words of absolute andunqualified prohibition, tho prosecution need only establish bo3’ondreasonable doubt the commission of the prohibited act and is notrequired in addition to establish that the accused acted with anyspecific intention or knowledge. But this does not mean that in such acase the accused is to be denied the right to -plead any of the generalexceptions set out in Chapter 4 of the Code. ”
Thero is thus high authority for tho proposition that tho exceptionunder Section 73 is open to the accused.
Tho accused’s explanation is that when he was asked for tho Brovon hochecked the price from the Gazette and got the drug from the shelf. Atthat stago, according to him, thero was an argument as to whether thedoctor was not entitled to a commission, and ho wrote out the bill,inadvertently transposing the figure 9 for tho figure S, so that the pricehe meant to convey viz. Rs. 5 S9 becamo Rs. 5 9S.
The doctor has denied thero was any controversy in regard to commis-sion. Whilo it appears to mo moro probablo than not,, that tho doctor,a person who this very incident shows was tho typo of man careful notto bo deprived of nine cents, who was accustomed to obtaining the 10%commission given to doctors would ask for it, and that there would bo someargument when it was refused, it seems tome Jhat oven if there was no
1 (J955) 56 N. L. P. 433.
DE KKE'ISEE, J.—Munasinghe v. Pierts
such controversy, the charging of the wrong price could still be due towhat accused says it was due to viz. a transposition of figures. The factthat the Price Control Order came in. only in 2.3.GS., six daj s before thisincident and that over 1,000 drugs became price controlled, makes itmore likely than not that the accused is telling the truth that lie had toobtain the price of Brovon by reference to the Gazette. The complainantis not in a position to say whether the accused consulted the Gazette ornot. According to the complainant the accused brought the Brovon tohim with the cash memo already written out, and from the cash memohe realised that the accused had charged him Rs. 5'9S. It seems to methat it is extremely unlikely that the accused who had taken the troubleto check the price would write out the bill immediately after with thefigures transposedexcept by inadvertence. If the complainant’s evidenceis true that there was an argument over the correctness of the price,the conduct of the accused as spoken to by the complainant is quiteconsistent with the accused behaving in that way because he wasconfident of the correctness of the price lie had set down, for had he notjust checked it in the Gazette ? Not unnaturally, the complainant whohad a'dispensary, and would therefore very likely have the Price Orderthere and who would have checked the control price of Brovon he wantedto buy, before he came to the pharmacy, would he annoyed at the'obstinacy of the accused in insisting that the price he charged wascorrect and react as he did.
It appears’to me, that the accused’s explanation viz. that when he wroteout the bill 593 he had inadvertently transposed the figure 5 S9 which hehad just seen in the Gazette, is a true one. That sort of happening is aquite common occurence. It then means that something quite fortui-tous, something which he had no control over,' caused the accused totranspose the figures of the correct control juice which lie had verified as589 and which it had been his intention to charge. Such an occurrencecan be attributed to accident, for the idea of something fortuitous,something that happens out of tho ordinary course of things is involvedin tho term accident.
It appears to me that the accused lias discharged the burden of provingtho facts to bring him within the exception and that liis appeal should beallowed. Before I part with this appeal, I think it neecssar}' to say thatthe Magistrate’s remark when passing sentence t! that the doctor had runthe risk of being blacklisted by' a large combine like Mackwoods Ltd., asubsidiary of which is Starline Pharmacy, just as all reports of this casehad been blacked out from the newspapers up to now ”, casts perfectlyunwarranted aspersions on Messrs Mackwoods Ltd., and should not havebeen made. It would be well for him to remember that the importanceof his office carries with it the expectation that he who holds it will weighhis w ords and will be scrupulously careful not to make remarks that affectinnocent third parties, for they have no redress.
The appeal of the accused is allowed.
V. MUNASINGHE, Appellant, and M. J. PIERIS (Food and Drugs Inspector), Responden