1965Present: Sri Skanda Rajah, J.WICKREMASINGHE (Food and Price Control Inspector), Appellant,
and CHANDRADASA, Respondent
S.G. 294165—M. G. Kandy, 38,788
Charge—Omission to mention penal Section—Effect—Criminal Procedure Code, e.171.
Where, in a report made to Court under Section 148 (1) (6) of the CriminalProcedure Code, the penal provision was mentioned but, in the charge sheetfrom which the accused was charged, the penal provision was not mentioned—
Held, that the omission to mention in a charge the penal Section is not afatal irregularity if the accused has not been misled by such omission. In sucha case. Section 171 of the Criminal Procedure Code is applicable.
Control of Prices—Tamarind—Maximum retail price—Applicability to local tamarind
—Control of Prices Act, as. 3 (2), 4.
Not only imported tamarind but also local tamarind is price-controlled.
PEAL from a judgment of the Magistrate’s Court, Kandy.
R.Abeysuriya, Crown Counsel, for complainant-appellant.A. H. Moomin, with S. Gunasekera, for accused-respondent.
July 9, 1965. Siti Skajtda Rajah, J.—
The accused in this case was charged with having sold pound tamarindfor 30 cents, a price in excess of the maximum controlled price of 26 cents.
The accused appeared on summons. The summons is in the recordbut it states that the particulars of the offence were written on anannexed sheet, but that annexed sheet does not appear in the record.
In the leport made to Court under Section 148 (1) (6) of the CriminalProcedure Code, the penal provisions are also mentioned. However,in the charge sheet from which the accused was charged, the penalprovision is not mentioned. In the case of Attorney-General v. Baaharanit was laid down that “ the obligation of framing the charge or chargeein a summary* trial is one that rests on the Magistrate ”.
Section 171 of the Criminal Procedure Code reads: “No error instating either the offence or the particulars required to be stated in thecharge and no omission to state the offence or its particulars shall beregarded at any stage in the case as material, unless the accused wasmisled by such error or omission. ” All that need be said is that thecharge sheet had omitted the last portion of the report made to Courtunder Section 148 (1) (6) of the Criminal Procedure Code. This, in myview, did not constitute an illegality because the accused was awareunder what Act he was being charged, i.e., under the Control of PricesAct, and in the portion that is contained in the charge sheet whichappears in the record reference is made to that Act and to Sections 4 and3 (2) of the same Act (vide Jayawardena v. Aluwihare 2).
Mr. Moomin has cited the case of Seneviratnc v. Deen 3 which statesthat “ the failure to state in a charge the correct Penal Section is some-thing more than an error referred to in Section 171 of the CriminalProcedure Code ”, but as stated in the Ceylon Law Weekly case (supra)“ in deciding whether there has in fact been a failure of justice the appealCourt is entitled to take the whole case into consideration and determinefor itself whether there has been a failure of justice in the sense that aguilty man has been acquitted or an innocent man has been convicted ”.The failure to mention the Penal Section in this case is, in my view,not a fatal irregularity.
The other point on which the Additional Magistrate acquitted theaccused at the end of the case for the prosecution is that there was noevidence whether this was imported tamarind or local tamarind. Heexpresses the view that it was only imported tamarind that was price-controlled. Though the case of Fernando v. Harmed 4 was cited to thelearned Magistrate, he did not refer to it in his order. Apparentlyhe did not consider it at all. Besides this last-mentioned case, the caseof Hewasiliyanage v. Police 5 is also in point.
There are 4 columns in the Schedule to the Gazette. In the firstcolumn “article” is mentioned. In the second column reference ismade to the “ Importers’ Maximum Wholesale price per cwt. gross ” ;column three makes reference to “ Wholesale Dealers’ Maximum wholesaleprice per cwt. gross ” and column 4 refers to “ Retail Dealers’ Maximumretail price per pound nett The argument on behalf of the defenceis that because reference is made to the Importers’ Maximum Wholesaleprice in column 2, the maximum retail price of a pound of tamarindrefers to the price of imported tamarind. The two cases just referred toconsidered this question and held that column 2 does not control column 4and that it is not merely the imported article but even the local article isprice-controlled. Therefore, in this case I would hold, following thesedecisions, that what was price-controlled was not merely importedtamarind hut also local tamarind and hence it was not obligatory on theprosecution to prove that the tamarind sold was imported tamarind.
For these reasons, I would set aside the order of acquittal and send thecase back for a fresh trial before another Magistrate on a properly framedcharge.
Acquittal set aside.
WICKRAMASINGHE (Food and Price Control Inspector), Appellant, and CHANDRADASA, R